It looks as if prominent and obsessively determined euthanasia campaigner Dr Philip Nitschke may be in trouble again. He has already had his right to practise medicine suspended and is facing Medical Board disciplinary proceedings arising from a situation a few months ago where he apparently provided telephone and email advice to a non-terminally ill man, seemingly about suicide options. The man subsequently successfully committed suicide using the so-called “peaceful pill” Nembutal. His relatives later found the correspondence. I will return to this situation later.
The current situation, by contrast, seems morally if not legally straightforward. In August this year Dr Nitschke assisted a 71-year-old man named Martin Burgess to upload this video onto Nitschke’s YouTube channel.
Burgess appealed for someone (anyone) to help him by donating supplies of Nembutal to allow him to kill himself. Burgess was in the latter stages of terminal rectal cancer, was in frequent pain and not being effectively supported by palliative care services, and was pretty clearly not suffering from any mental disability which might have impaired his decision-making process. He made an entirely rational decision to kill himself. He died last week. To be blunt, I would have made exactly the same decision had I been in his situation. See the slightly longer video below where Burgess describes his situation (try to ignore the irritating background noise).
If the Northern Territory’s Rights of the Terminally Ill Act had still been in force, Burgess would certainly have qualified to access medically-assisted euthanasia. He would not have needed to resort to the desperate expedient of appealing for pharmaceutical help on YouTube, nor would he have needed to endure a probably lonely death in his noisy flat in suburban Rapid Creek in order to avoid implicating anyone else in his death. The Act in my view contained adequate and appropriate safeguards to ensure that the patient not only was suffering a terminal illness, but also had the requisite mental capacity to make a rational and considered decision to end their life. The existence of a terminal illness had to be certified by two independent medical practitioners, and the patient’s mental capacity had to be certified by a psychiatrist.
Unfortunately, the Rights of the Terminally Ill Act is not still in force. After less than two years of operation, Howard government (and now Abbott government) Minister and God-botherer Kevin Andrews intervened and introduced into Federal Parliament a Private Member’s Bill which when enacted not only nullified the legal effect of the Rights of the Terminally Ill Act but also removed the constitutional ability of the Northern Territory Legislative Assembly (and incidentally all other Commonwealth territories as well) to legalise assisted suicide at any time in the future. The Bill successfully passed through both Houses of Parliament with the tacit support of Prime Minister John Howard and a range of Christian MPs on both sides of politics.
The reason why I suggested that Dr Nitschke’s actions in relation to Martin Burgess might not have been legally straightforward is that section 162 of the Northern Territory Criminal Code makes it a crime potentially punishable by life imprisonment to “assist” or “encourage” another person to commit suicide. Hence my suggestion that terminally ill people wanting to put an end to their own suffering really have no choice but to die a lonely death if they want to avoid putting family or friends at risk of drastic punishment. Other states have somewhat similar provisions in their criminal law. I haven’t examined the case law on such provisions, but you would think there is at least some risk that Nitschke’s actions might run foul of section 162. Clearly those are risks of which Dr Nitschke is well aware. Whether you regard him as courageous or reckless and foolhardy no doubt depends on your personal moral perspective.
The events surrounding Dr Nitschke’s suspension by the Medical Board are more troubling:
The decision to suspend Dr Nitschke using the board’s emergency powers to “protect public health and safety” came after he admitted in an interview with the ABC that he had supported a 45-year-old Perth man, Nigel Brayley, in his decision to commit suicide, despite knowing the man was not terminally ill.
The AMA has cited the same “adverse event”, saying Dr Nitschke’s “professional behaviour … was not consistent with the high professional and ethical standards for the Australian medical profession promoted by the AMA.”
Not only was Brayley not suffering from a terminal illness, but members of his family have also asserted that he was suffering from depression (although whether they know this or are just suggesting it was a possibility is unclear). It would appear that at the time of his death, Brayley was under police suspicion of murdering his wife by pushing her into a quarry. Perhaps his decision to kill himself was a rational one; perhaps it was a tacit acknowledgement of guilt in which he acted as his own judge, jury and executioner.
On the other hand, perhaps he was an innocent man who had just become overwhelmed by the pressure of unjust suspicion and the prospect of a legal ordeal which would at best have left his reputation permanently ruined. Perhaps that perception of his situation might have been exacerbated if indeed he was suffering from clinical depression. In any event, it appears unlikely that Nitschke had enough contact with him to form any view about his mental state. Nitschke asserted in his ABC interview that he did not see it as a part of his role to assess Brayley’s mental state or even to urge him not to commit suicide. Presumably the Medical Board and the AMA regard such conduct as inconsistent with the Hippocratic Oath. However it would be inappropriate to canvass such issues further given that Dr Nitschke’s Medical Board hearing is imminent.
The pressure surrounding Dr Nitschke is even more widespread than that. A recent newspaper report noted:
Embattled euthanasia campaigner Dr Philip Nitschke is being investigated by police in every Australian state over his possible role in nearly 20 deaths in the past three years, all of them apparently suicides.
The latest investigation, by Victoria Police, concerns the death of a 55-year-old Geelong man who allegedly killed himself using a do-it-yourself kit bought though a company affiliated with Exit International, the pro-euthanasia organisation founded by Dr Nitschke.
All of the deaths being investigated involved the use of the two suicide methods promoted by Dr Nitschke, the lethal drug, Nembutal or a nitrogen inhalant device.
I simply don’t know how many of these deaths (assuming Dr Nitschke was involved in them) involved people who were terminally ill and had mental capacity to make a rational decision. How many involve people like Brayley or for that matter former Territory Senator Bob Collins (not that Nitschke had any involvement in that situation to the best of my knowledge), cheating justice by killing themselves to avoid facing trial for serious crimes? With increasing numbers of people accused of pedophile activities before the current Royal Commission, there is likely to be a growing demand for suicide-related services.
How many involved people suffering chronic but non-terminal medical conditions involving frequent pain and the prospect of an uncomfortable, undignified life? Medical science has advanced to a stage where average Australian lifespans are now longer than 80 years, but the quality of that life in its last decade or so is another question entirely. Should people with such conditions be entitled to end their own lives? Should they be entitled to medical assistance to do so with dignity? in my opinion the answer is yes, but it shouldn’t be left to the unregulated opinions of medical crusaders like Dr Nitschke. Given that many of us will face such a dilemma in years to come, either for ourselves or our close family members, and that our doctors will also face such dilemmas, surely the time has come to enshrine appropriate safeguards in legislation by re-enacting the Rights of the Terminally Ill Act in all states and territories, and to extend its operation to cover people with serious chronic conditions.involving ongoing pain (even if manageable through medication) and an undignified, uncomfortable life.
On the other hand, I don’t think that assisting the suicide of people seeking to escape the criminal justice system should be legalised under any circumstances. Those are decisions that should rightly remain the lonely sole responsibility of the alleged perpetrator.