Statement by Liberal Senators
1.1
Liberal Senators are deeply concerned about this Bill and consider that
the Bill should not proceed under any circumstances. We are therefore unable to
support the Chair's report, for the reasons discussed below.
Concerns with the drafting of the Bill
and lack of consultation with NT Government
1.2
There are a number of drafting concerns with the Bill, as highlighted in
Chapter 3 of the report. Liberal Senators consider that the evidence indicates
that the Bill is inaccurate, unclear and creates considerable uncertainty about
the status of the Northern Territory Rights of the Terminally Ill Act 1995
(RTI Act) and of the powers of the territories' legislatives assemblies in
relation to euthanasia.
1.3
We further consider that the amendments to the Bill put forward by the
Chair would amend the Bill so substantially that it would bear little
resemblance to the original legislation as introduced.
1.4
Liberal Senators are also concerned about the lack of consultation with
the NT Government prior to the introduction of this Bill.[1]
In particular, the Chief Minister of the Northern Territory, The Hon Paul
Henderson has drawn attention to the lapse of time since the RTI Act was
debated and the need for a fresh consideration of all the issues before it or
any similar legislation should be enacted in the Northern Territory:
Mr Henderson says the make up of the Territory Parliament is
different and palliative care has improved since the voluntary euthanasia
legislation was enacted.
"Back in 1995 I was a supporter of euthanasia, but I have
to say I haven't been in to the detail of how we provide palliative care, and
all of the legal and ethical issues that are inherent in our society in 2008 as
opposed to 1995," he said.[2]
Problems with RTI Act
1.5
Liberal Senators are particularly disturbed by evidence received during
the committee's inquiry relating to the problems with the RTI Act itself. This
included evidence about the operation of the RTI Act during the nine month
period in which the Act was in effect. Of considerable concern is the study
published in The Lancet,[3]
which has as its principal author Professor David Kissane, a consultant
psychiatrist and professor of palliative medicine. Dr Philip Nitschke is a
co-author of the paper. Four people were assisted to terminate their lives by Dr
Nitschke under the RTI Act. No other medical practitioner made use of the
provisions of the Act to assist any other person to terminate his life.
1.6
The Lancet study, as well as evidence from Dr Nitschke himself
during this inquiry,[4]
raises serious doubts about the effectiveness of the RTI Act in ensuring
competent psychiatric assessments of patients before they were administered
euthanasia. The previously undisclosed admission that Dr Nitschke personally
paid the fee for the psychiatric assessment of one of the patients he
euthanased[5]
gives rise to a serious concern about a potential conflict of interest.
1.7
Dr David van Gend summarised other problems with the administration of
the RTI Act:
The four levels of medical safeguard that were built into the
act were either diminished or blatantly violated, even in the few cases that
occurred in 1996-97. My question to the committee is: if, in the early
springtime of the law the regulations and safeguards were not met when these
cases were under the full spotlight of public attention, what hope have we of
safeguards being met for the 102nd death—not the second death?[6]
Aboriginal issues
1.8
We also have considerable concerns about the impact of the Bill, and any
subsequent voluntary euthanasia legislation, on the Indigenous population in
the NT, as discussed in Chapter 4 of the majority report. For example, the
Aboriginal Resource and Development Services explained in its submission that
laws permitting euthanasia were not compatible with traditional law.[7]
The committee also received a standard letter signed by several hundred
Indigenous residents of the NT raising concerns about the revival of the RTI
Act from an Indigenous perspective.[8]
Of particular concern is the evidence outlined in Chapter 4 explaining how the
RTI Act poses a threat to Indigenous health.
Euthanasia tourism
1.9
Finally, if the RTI Act were to be revived, this would raise the
possibility of euthanasia tourism to the NT. There is no residency requirement
in the RTI Act, and it was apparent from evidence received during the
committee's inquiry that the revival of the RTI Act would lead, as it did in
1996-97, to the provision of legalised euthanasia for all Australians, and
indeed any person willing to travel to the NT. Of the four people killed in the
NT under the provisions of the RTI Act when it was in effect from 1 July 1996 to 27 March 1997, two of the four people were not residents of the NT but went
there from other parts of Australia to access legalised euthanasia.[9]
The committee also heard evidence that if the RTI Act was still in effect,
Australians who are currently travelling overseas to obtain euthanasia would
instead be travelling to Darwin.[10]
Problems with laws permitting
euthanasia
1.10
Evidence was given that there is a majority international consensus –
especially in the common law nations – that laws permitting euthanasia are
intrinsically incompatible with the common good.
1.11
Father Frank Brennan summarised developments since 1997 as follows:
[W]hat has changed in 10 years? In terms of what has changed, if
you look at the United States, Oregon is still the only state which has
euthanasia. Since the Commonwealth exercise the US Supreme Court has said there
is no right to euthanasia. Lord Joffe’s United Kingdom legislation has gone
down, and we have had very clear statements from the medical authorities in the
United Kingdom and a quite eloquent submission here from the AMA. So it would
seem to me that on balance nothing has changed or, if anything, the
anti-euthanasia case is probably slightly strengthened if we look at
developments in equivalent jurisdictions.[11]
1.12
The Festival of Light Australia expanded on some of these developments,
noting that 'on 12 May 2006 the House of Lords voted 148-100 against the
Assisted Dying for the Terminally Ill Bill' and that 'from 1994 through 2007,
no fewer than 89 legislative proposals in 22 states of the United States that
would have legalized assisted suicide have failed'.[12]
1.13
Several submissions drew attention to problems in those jurisdictions
where euthanasia (the Netherlands) or physician-assisted suicide (Oregon) is
legalised. For example, the Festival of Light Australia pointed out that:
Since legalised euthanasia was introduced in the Netherlands,
initially by court decision (1973) and subsequently by statute (2002), there is
no doubt that there has been a rapid expansion of the categories of people
considered eligible for physician administered death.
Children aged 16 and over can request euthanasia without
parental agreement.
Children aged 12 to 16 can be killed by euthanasia if they request
it and a parent agrees.
Children up to the age of 12, including newborns, may be killed
by lethal injection with parental consent.
Psychiatric conditions such as depression or anorexia have been
accepted as sufficient justification for requesting euthanasia.[13]
1.14
This submission also detailed problems with the administration of Oregon's
Death With Dignity Act:
Complications arising from self-administration of medication,
including vomiting, and one case of a person being unconscious for 65 hours and
then waking up.
Possible coercion or undue influence by a family member on a
woman with dementia to request physician assisted suicide.
Patients with a history of depression being prescribed lethal
drugs without a psychiatric referral, which is optional under Oregon’s law.
Oregon's Medicaid program funds an ever decreasing list of
medical treatments while assisted suicide remains Medicaid funded.
Although Oregon's law limits physicians to prescribing lethal
drugs to those whose life expectancy is six months or less official reports
indicate that several of those who have taken lethal drugs prescribed under the
law have done so more than six months after the drugs were prescribed.
Although Oregon's law requires at least 15 days between a
patient's first request for a lethal prescription and the supply of the
prescription official reports indicate that this condition is often breached.[14]
Legitimate role for the
Commonwealth
1.15
Chapter 3 of the report discusses the queries raised during the
committee's inquiry about the implications of international human rights law
for laws permitting euthanasia.[15]
These comments highlight the proper role for the Commonwealth in considering
any law permitting euthanasia passed by a state or territory legislature for
its compatibility with Australia's international human rights obligations. As Professor
George Williams of the Gilbert and Tobin Centre admits, there is some doubt
about the Commonwealth's constitutional power to take such an action.[16]
1.16
So far no state legislature has passed a law permitting euthanasia
despite the fact that bills for laws permitting euthanasia have been introduced
into several state legislatures so any Commonwealth action in this regard would
be both premature and doubtful in its effect. Nonetheless if a state
legislature does pass such a law, or appears likely to pass such a law, then it
is open for the Commonwealth to explore all avenues to nullify such a law.
1.17
We also note that, at no time in 1997, and in no submission or evidence
given to this current inquiry, has anyone raised any doubt whatsoever as to the
validity of the Euthanasia Act Laws Act 1997 as an exercise by the
Commonwealth Parliament of the unrestricted power given to it by section 122 of
the Constitution to 'make laws for the government of any territory'.
Recommendation 1
1.18
That the Bill should not proceed and the Euthanasia Laws Act 1997
should remain in force.
Senator Guy Barnett
Deputy Chair |
Senator Mary Jo Fisher |
|
|
Senator Russell Trood |
|
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