Euthanasia and the Common Law in Queensland Euthanasia is an extremely controversial topic in medicine, law and ethics. Broadly, medical euthanasia can be defined as when a medical practitioner intentionally kills a patient for their benefit and as part of their job (Savulescu, 2015). In this paper, I will outline current Queensland policy regarding voluntary euthanasia. I will then make three arguments supporting voluntary euthanasia including: an argument regarding relief from suffering; an appeal to consistency, specifically between passive and active voluntary euthanasia; and an argument for patient autonomy. Lastly, I will recommend the modification of current euthanasia laws in Queensland. It will be suggested that laws regarding active voluntary euthanasia be brought to the same standards as passive voluntary euthanasia. It should be noted that this analysis only addresses current policy affecting Queensland and that arguments regarding involuntary euthanasia (both active and passive), will not be discussed.
Currently, Australian law regarding euthanasia varies state to state. In Queensland, common law permits adults to refuse treatment that would otherwise keep them alive if and only if it is voluntary, informed and made with competence. In these circumstances health practitioners are protected from liability if the patient has been diagnosed with terminal illness or is in a vegetative state, and given little to no probability of survival (Australian Human Rights Commission, 2016). This passive omission of treatment for the benefit of the patient is recognized under the AMA as good medical practice in particular circumstances, and aligns with the definition of passive voluntary euthanasia (Australian Human Rights Commission, 2016). Active voluntary euthanasia only differs from passive voluntary euthanasia in that the medical practitioner intervenes to end the patient’s life. This includes actions such as administering lethal doses of painkillers. Under section 296 of the Queensland Criminal Code, health practitioners are not protected from liability in situations of active voluntary euthanasia (Australian Human Rights Commission, 2016). Section 282A indicates that practitioner liability is based on intention; if it is the intent of the practitioner to end the life of the patient or aide the patient in killing themselves, they may be charged with the offence of murder and face life imprisonment (Australian Human Rights Commission, 2016). Both active and passive euthanasia rely on informed patient choices and considered medical opinion to determine if death is the best option for the patient’s wellbeing.
Patient well-being should be the primary focus in health care. The argument for relief of suffering states that if an individual is in extreme pain, with no chance of survival, death can be the best option. An objection to this argument is that high doses of pain relieving medication can be prescribed to individuals as a superior alternative to euthanasia. In most cases this is the morally and medically justifiable option, however it will be argued that voluntary euthanasia should also be permissible in extreme cases where sustained and high amounts pain cannot be reduced to a tolerable level.
Another objection to the argument of relief from suffering is how does one properly qualify type of suffering (Savulescu, 2015). In other words, if euthanasia for physical illness is permissible and permissible for degenerative mental diseases such as Parkinson’s, should it therefore be permissible as a relief from emotional pain caused by mental illness? As you can see, without properly outlining the parameters, it quickly becomes a slippery slope argument. However, this should not be reason to discount both active and passive euthanasia when appropriate ethical frameworks are in place, such as those currently in place for passive voluntary euthanasia.
This brings me to my second argument; appeal to consistency. Arguments appealing to consistency propose that if A is an acceptable practice, and B is substantially similar to A in a morally relevant way, then B is therefore also an acceptable practice (Savulescu, 2015). Following this same form, I argue that, as passive voluntary euthanasia is permissible by Queensland common law, and that passive and active voluntary euthanasia are substantially similar, active voluntary euthanasia should also therefore be permissible under Queensland common law.
In order to justify this argument, it should be shown that active voluntary euthanasia is substantially similar to passive voluntary euthanasia. By definition, the only difference between the two is that active euthanasia requires intervention from a practitioner. In cases of passive voluntary euthanasia, the illness is what kills the patient, not the practitioner. Considered from a consequentialist view, the outcome of the patient’s death is the same regardless of how it occurs, therefore active and passive voluntary euthanasia are equal acts under consequentialism. If it is a matter of intent, then both types of voluntary euthanasia occur with the same intent, specifically to end patient suffering through death. As the outcome and intent remain the same in both types of voluntary euthanasia, it is only the active or passive act itself that is distinct. I argue that it is the outcome and intent that matter in this particular argument and therefore passive voluntary euthanasia is similar enough to active voluntary euthanasia that they should both be permissible by law.
According to theories of soft paternalism, individuals should have the right to autonomy if their choices are voluntary and well informed (Fuchs, 2001). This can be seen to align with current law regarding passive voluntary euthanasia, as patients with terminal illnesses have the right to refuse treatment based on these same criteria (Australian Human Rights Commission, 2016). In contrast, hard paternalism sanctions intervention in situations where individuals may harm themselves, even if voluntarily. Current Criminal Law regarding passive voluntary euthanasia is strongly based on hard paternalist policies that prevent patient autonomy in the right to choose (Savulescu, 2015). Respect for autonomy argues that individuals should have choice if it affects only themselves, even in circumstances where the choice might harm them (Szerletics, 2011). Thus, respect for autonomy requires not interfering with an individual’s desire to end their own life (Szerletics, 2011).
Following on from this same argument, I also claim that active voluntary euthanasia can be seen as giving more autonomy to the patient than that of passive voluntary euthanasia. This is because the patient is not only choosing to die, but also has more control over other aspects such as when, where and most importantly, how they will die. In the case of passive euthanasia, the patient’s death is ultimately the result of their illness, but active euthanasia allows them to choose by which means they will die.
An objection to the argument of autonomy is that law should have the power to intervene in situations where an individual’s choices cause them harm. For example, laws should be implemented preventing people from selling themselves into slavery (Fuchs, 2001). This is because, although they are making an autonomous decision, it is in effect causing future lack of autonomy and possible harm. Death is most certainly harmful, however in situations where euthanasia is considered an option, prolonging the life of the patient may be more harmful than a painless and self-directed death, as discussed in the argument for relief of suffering.
To fully articulate my overall argument, take the following example. A gentleman in his seventies is diagnosed with a rare and extremely painful disease. First it will remove all his flesh and then slowly move into his organs. He is given one year to live, with no chance of recovery.
The pain is expected to be excruciating and the disease is disfiguring. He has lived a good life and is of sound mental health considering his situation. Understanding the implication, the man asks his doctor if he can be euthanized. After examining the situation, the patient’s doctor agrees that voluntary euthanasia is appropriate. The options to the doctor are to either stop treatment and wait for the patient to die slowly and uncomfortably from the disease, (passive voluntary euthanasia), or to administer a painless but deadly dose of painkillers (active voluntary euthanasia). Arguably in this circumstance, active voluntary euthanasia is the preferable option, however the doctor responsible is liable for murder charges, and thus will not choose the best option for the patient.
In conclusion, after a critical analysis of arguments for and against voluntary euthanasia including relief from suffering, consistency and appeal to autonomy, it is my recommendation that the current laws in Queensland regarding active voluntary euthanasia are modified and brought to the same standard as current passive voluntary euthanasia laws discussed above. This could reduce patient suffering, increase patient autonomy and safeguard the liability of practitioners assisting patients with active voluntary euthanasia.
Works Cited
Australian Human Rights Commission (2016). Euthanasia, human rights and the law. Issues Paper, May 2016. Fuchs, A. (2001). Autonomy, Slavery, and Mill’s Critique of Paternalism. Ethical Theory and
Moral Practice, 4(3). Retrieved from http://www.jstor.org/stable/27504195 Savulescu, J. (2015). Autonomy, interests, justice and active medical euthanasia. New Directions in the Ethics of Assisted Suicide and Euthanasia, 64. Springer International
Publishing. Szerletics, A. (2011). Paternalism and Euthanasia: The Case of Diane Pretty before the European Court of Human Rights. Retrieved from http://www.dirittoequestionipubbliche.org/page/2010_n10/3-11_studi_A_Szerletics.
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