While the Greens and Labor are fighting federally, in Tasmania the leaders of both parties are cooperatively putting forward a proposal for euthanasia law. The proposals, and the safeguards, are spelt out in consultation papers, writes Prof George Williams.
Island state leads on euthanasia
By Prof George Williams*
Australia’s politicians have long had a deaf ear when it comes to community support for voluntary euthanasia. This looks set to change in Tasmania, where its leaders have begun the process of translating that support into law.
This is happening in a way that bucks the national political narrative. Rather than replicating the messy divorce of their federal counterparts, Labor Premier Lara Giddings and Greens leader and Minister Nick McKim have joined forces to champion the cause of voluntary assisted dying. They are the first leaders in government to do so for more than 15 years.
As it stands, the law allows a doctor to provide palliative care to ease a person’s pain and suffering. It has long been assumed that this is permissible even where it has the double effect of hastening the person’s death. On the other hand, the law forbids a doctor from acting on a request from a terminally ill patient to end their life.
The law does, however, permit a doctor to allow a person to starve to death. This was recognised in 2009 by WA Chief Justice Wayne Martin. He held that Christian Rossiter, who had become a quadriplegic due to a road accident and was ‘unable to undertake any basic human functions’, was entitled to instruct his carers to remove a feeding tube from his stomach.
Rossiter’s carers took his request to court, concerned that they could be charged with murder. The judge upheld Rossiter’s right to refuse food by applying the fundamental principle that every competent person can consent to or refuse medical treatment.
This is as far as the law is likely to develop in the courts. Judges have sensibly recognised that any further steps, involving as they do large social and political questions, must be left to our elected representatives in parliament.
The problem is that politicians have been fearful of this reform because of its potential to attract strong opposition from a vocal minority. As a result, political leaders have lacked courage and conviction, and a gulf has arisen between them and the community.
Australians overwhelmingly believe that people with a terminal illness should be able to end their life with the assistance of a doctor. This is reflected in polls taken over many years. One Newspoll in 2012 found that over 80% of Australians supported voluntary euthanasia.
Despite this, politicians have been extremely reluctant to act. The last attempt to do so was the Rights of the Terminally Ill Act, which was passed by the Northern Territory in 1995, but was then overridden by the Commonwealth in 1997.
Serious attempts to legalise voluntary euthanasia are very rare in Australia, making it clear why the Tasmanian initiative is so important. The fact that the law might be passed by a state, and not a territory, is also significant. A Tasmanian law would be very difficult for even a hostile federal government to overturn, as it would require the enactment of an inconsistent federal law.
There is still a long way to go though before Tasmania might permit doctor assisted dying. Its leaders are certainly not rushing to enact such a law. They have rightly adopted a slow and deliberate process involving a high level of community consultation. This may culminate in a private members bill later in the year.
The focus in Tasmania now is on a consultation paper issued under the names of Giddings and McKim. The paper certainly demonstrates their willingness to lead on this issue. They are upfront and clear about their support for voluntary euthanasia, with the Premier for example stating her view that ‘people suffering from a terminal illness should not be kept alive against their will’.
The consultation paper proposes a model for voluntary euthanasia based on laws already in place in Oregon, Washington State, the Netherlands, Belgium and Switzerland.
Voluntary assisted dying would only be available to Tasmanian residents with an advanced terminal illness who have given written and verbal consent and have been assessed by at least two doctors. The law would be subject to independent oversight. Based on international experience, it is estimated that Tasmania could expect as few as eight cases of voluntary assisted dying each year.
This proposal is likely to attract strong community support, and so the real challenge will lie in Tasmania’s independent-dominated upper house. If the numbers are there, Tasmania will lead the nation on this issue. This would no doubt put pressure, as it should, on parliamentarians in other states to wake up and listen to the views of those that they represent.
George Williams is the Anthony Mason Professor of Law at the University of New South Wales. He is a member of Civil Liberties Australia. This article appeared first in the Fairfax media on 27 Feb 2013.
DOWNLOAD: Consultation papers