Journal ofMedical Ethics 1996; 22: 273-278

The legislation of active voluntaryeuthanasia in Australia: will the slipperyslope prove fatal?Ian H Kerridge and Kenneth R Mitchell University ofNewcastle, John Hunter Hospital, NSW, Australia

AbstractAt 2. 00 am on the morning ofMay 24, 1995 theNorthern Territory Legislative Assembly Australiapassed the Rights of the Terminally Ill Act by thenarrow margin of 15 votes to 10. The act permits a

terminally ill patient ofsound mind and over the age of18 years, and who is either in pain or suffering, or

distress, to request a medical practitioner to assist thepatient to terminate his or her life. Thus, Australia can

lay claim to being the first country in the world tolegalise voluntary active euthanasia. The NothernTerritory's act has prompted Australia-wide communityreaction, particularly in South Australia, Tasmaniaand the Australian Capital Territory where proposals tolegalise euthanasia have already been defeated on thefloor ofparliament. In New South Wales (NSW) theAIDS Council ofNSW has prepared draft euthanasialegislation to be introduced into the Upper House as a

Private Member's Bill some time in 1996. In this paper,we focus on a brief description of events as they occurredand on the arguments for and against the legalisation ofeuthanasia which have appeared in the media.

In the early hours of the morning of 24th May 1995the Northern Territory Parliament passed the Rightsof the Terminally Ill Act 1995, making Australia thefirst country in the world to have legalised voluntaryeuthanasia. The final amendments to the act,regarding the role of psychiatrists and interpreters,were passed on the 20th February, 1996. Meaningthat within months active voluntary euthanasiabecame a clinical and legal choice for terminally illpatients. No government has gone as far as theNorthern Territory's Legislative Assembly inlegalising voluntary euthanasia for the terminally ill.

Background: the NetherlandsIn the Netherlands, active voluntary euthanasiaremains a criminal offence under article 293 of the

penal code of the Netherlands.' Any person whoterminates the life of another person at the latter'sexpress and earnest request is liable to a term ofimprisonment not exceeding 12 years. In the absenceof a patient request the perpetrator renders himselfguilty of manslaughter or murder.2 Moreover, thepresent government has not adopted a longstandingproposal to legalise euthanasia. Instead, it has decidedthat physicians who terminate life on request of thepatient will not be punished only if they invoke a

defence offorce majeure and have satisfied the criteriadiscussed below, and then only on condition that thecourt accepts this defence.3 Such possible immunityfrom prosecution applies only to doctors. Thus,doctors practising euthanasia do so in violation of thelaw. In practice, however, they will not be prosecutedifthey appear to have followed strict guidelines. Threetiers of the Dutch judicial system - district courts,appeal courts, and the supreme court - have handeddown judgments in which these guidelines are pre-cisely defined. They have been affirmed andelaborated upon by the Royal Dutch MedicalAssociation (KNMG), the State Commission on

Euthanasia, and the Dutch government.4In brief, these conditions require, amongst other

things, that there be an explicit and repeated requestby the patient that leaves no reason for doubt con-

cerning his desire to die; that the mental or physicalsuffering of the patient must be very severe with noprospect of relief; that the patient's decision be well-informed, free, and stable over time; that all optionsfor other care have been exhausted or refused by thepatient; and that the doctor consult another physician(in addition, he may decide to consult nurses, pastors,and others). The doctor is advised to record thecourse of events. Although data from studies differ itis estimated that active voluntary euthanasia occurs inapproximately 1 8% of deaths in the Netherlandsand nearly always in terminally ill patients with a

prognosis of less than one month.5

The issueThe issue of whether patients should be able torequest euthanasia raises a number of complexmoral, legal and social issues. Advances in medical

Key wordsActive voluntary euthanasia in Australia; legislation inAustralia; arguments for euthanasia; arguments againsteuthanasia; the slippery slope.

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274 The legislation of active voluntary euthanasia in Australia: will the slippery slope prove fatal?

technology, progress in palliative and hospice care,changing attitudes to death, a shift in demographicstowards an older population, the emergence of thecivil rights movement and a changing perception ofmedical decision-making have brought euthanasiainto prominence in Australia. Before these changescan be considered we need to recognise a series ofbasic distinctions, as the term "euthanasia", which lit-erally means a "good, gentle or easy death" may beused in many different ways, creating considerableconfusion. Active voluntary euthanasia, or the killing ofa patient at his request, must be distinguished fromthe decision to terminate the lives of patients whodo not have the capacity to comprehend and so

cannot provide meaningful consent, (non-voluntaryeuthanasia) and the decision to terminate the lives ofpatients either against their will or without theirknowledge (involuntary euthanasia). Nearly all healthcare professionals, ethicists and politicians repudiateinvoluntary and to a somewhat lesser extent, non-

voluntary euthanasia. The situation with active non-

voluntary euthanasia is unclear because decisionsprematurely to end the life of, for example, a severelydisabled neonate, or a person in a permanent vegeta-tive state, remain ethically contentious where theprognosis is uncertain.' The current debate, whichgave birth to the Northern Territory legislationconcerns "active voluntary euthanasia".

Current status in AustraliaOn May 24th, 1995 the Legislative Assembly of theNorthern Territory approved legislation makingactive voluntary euthanasia legal. The NorthernTerritory is home to only 175,000 people, half ofwhom live in Darwin, the state capital, where thesingle chamber state parliament and its 25 membersare located. The passage of the Northern Territorylegislation was remarkable, not just for its success butfor the circumstances surrounding its legislation.The proposed legislation was first given impetusby the Chief Minister, Marshall Perron, whenintroduced as a private member's bill. The bill was

eventually passed by one of the world's smallestlegislative assemblies by 15 votes to 10 in a highlyemotional mood after a limited debate, characterisedby a disconcerting sense of urgency and a lack ofconsultation. The act now permits a terminally illpatient of sound mind, over the age of 18 years, andwho is either suffering, or in pain or distress, torequest a medical practitioner to assist him toterminate his life.6 Doctors are free to choose whetherthey will assist the patient in dying and the act itselfstates that it is a criminal offence to coerce or threatena doctor for refusing to help a patient die. Furtherdetails and the conditions under which a medicalpractitioner may assist are set out in table 1. Providedmedical practitioners comply with the provisions ofthe act, they will be immune to both criminal and civillegal actions.

Since the Rights of the Terminally Ill Act waspassed into law it has been condemned by theCentral Land Council, representing the NorthernTerritory's Aboriginal population (approximately40,000), which criticised the law as being both"culturally inappropriate" and a significant disincen-tive for elderly Aborigines to seek medical care. Alegal challenge is currently being prepared.7 In theshort period of time since its passage the NorthernTerritory act has prompted Australia-wide debate onthe question of the legalisation of euthanasia. InNew South Wales, the AIDS Council of NSW hasannounced its intention to table a private bill in thestate parliament, regarding the legalisation ofvoluntary euthanasia, some time during 1996. Bills

Table

Patient and doctors

1. the patient is at least 18 years and the medical practitioner issatisfied reasonably that:(i) the patient is suffering from an illness that will, in thenormal course of events result in the death of the patient; (ii)there is no medical measure acceptable to the patient that canreasonably be undertaken in the hope of effecting a cure; and,(iii) any medical treatment reasonably available to the patientis confined to the relief of pain and/or suffering with the objectof allowing the patient to die a comfortable death;

2. a second medical practitioner, has examined the patient andhas confirmed: (i) the first medical practitioner's opinion as tothe existence and seriousness of the illness; (ii) that the patientis likely to die as a result of the illness; (iii) the first medicalpractitioner's prognosis; and, (iv) that the patient is notsuffering from a treatable clinical depression in respect of theillness;

3. the illness is causing the patient severe pain or suffering;

Process to be foliowed and documentation:4. the medical practitioner has informed the patient of the nature

of the illness and its likely course, and the medical treatment,including palliative care counselling and psychiatric supportand extraordinary measures for keeping the patient alive, thatmight be available to the patient;

5. after being informed as in 4, the patient indicates to themedical practitioner that the patient has decided to end his orher life;

6. the medical practitioner is satisfied that the patient hasconsidered the possible implications of the patient's decisionto end his or her life has been made freely, voluntarily andafter due consideration;

7. the patient, or a person acting on the patient's behalf has, notearlier than 7 days after the patient has indicated to his or hermedical practitioner in 5, signed that part of the certificate ofrequest required to be completed by or on behalf of thepatient;

8. the medical practitioner has witnessed the patient's signatureon the certificate of request and has completed and signed therelevant declaration on the certificate;

9. the certificate of request has been signed in the presence of thepatient and the first medical practitioner by another medicalpractitioner after that medical practitioner has discussed thecase with the first medical practitioner and the patient and issatisfied, that the certificate is in order, that the patient is ofsound mind and the patient's decision to end his or her lifehas been made freely;

10. the medical practitioner has no reason to believe that he or shewill gain a financial advantage directly or indirectly as a resultof the death of the patient;

11. no less than 48 hours has elapsed since the signing of thecompleted certificate of request;

12. at no time before assisting the patient to end his or her life hadthe patient given to the medical practitioner an indication thatit was no longer the patient's wish to end his or her life;

13. the medical practitioner himself or herself provides theassistance and/or is and remains present while the assistance isgiven and until the death of the patient.

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Ian H Kerridge and Kenneth R Mitchell 275

incorporating conscience votes on the legalisation ofeuthanasia have already been presented anddefeated in the Tasmanian, South Australian and,Australian Capital Territory parliaments despiteconsistent indications from public opinion polls thatseem to favour the "right" of terminally ill patients toend their lives with medical assistance.89The passage of the Northern Territory act has

polarised ethicists and health care workers, beingsupported by the Voluntary Euthanasia Society, theAIDS Council of NSW and the Doctor's ReformSociety, and rejected by the Australian MedicalAssociation, Right to Life organisations, mainstreamChristian and Non-Christian churches and themajor aged and disability national associations.Unfortunately, there has been limited public discus-sion, other than the occasional media articles andinterviews, and even these have often been relativelyshallow and unsophisticated, with little discussion ofthe broader moral, social and legal issues that mayflow from such legislation. Public debate has beendominated by sloganeering, the most prominentslogans being "Death with Dignity", "Right to Life"and "Right to Die". Supporters of euthanasia havebeen accused of being murderers who wish to playGod, whilst those who oppose euthanasia have beenpainted as lacking in compassion or respect for therights and dignity of individuals. Both accusationsare clearly inappropriate and unhelpful.

The pro-euthanasia position in AustraliaSupport for voluntary euthanasia is based on thecontention that individuals should be granted theright to die, when and how they wish (death withdignity), and that those who assist them should befree from moral, professional or legal sanctions.Proponents of active voluntary euthanasia legislationin Australia argue that since Australia is a demo-cratic society of great cultural, religious and moralpluralism where individual rights are respected, thenindividuals should have moral authority over theirown lives and should be allowed the means to endtheir lives. Furthermore, they argue that to suggestthat people are incapable of making such judgmentsabout their own lives is to deny the humanity andcommon sense that we all share.'0

Surveys on the attitudes and practices ofAustralian doctors towards euthanasia suggest thatan implicit form of voluntary euthanasia alreadytakes place within Australian hospitals.8 9 Researchalso suggests that there is some support foreuthanasia within Australia's medical and nursingprofessions.'°0 Indeed, the debate over activevoluntary euthanasia was given considerable impetusin Australia by an open letter to the Victorian stategovernment by seven doctors who claimed to havecontributed to the death of patients with HIV/AIDSin contravention of the law.

Related to the importance of respect for a person's

autonomous choices, including the right to die, isthe importance of respect for an individual's dignity.Advances in medical technology have increasedmedicine's capacity to prolong life to the pointwhere it is unnecessarily burdensome and maydiminish an individual's quality of life and personaldignity. At these times, where a person who isterminally ill experiences severe pain or suffering,voluntary euthanasia may represent the most com-passionate and dignified option.'2 No person shouldbe forced to endure suffering and those who relievean individual's suffering by euthanasia out of respectfor autonomy and compassion are, it may be argued,acting humanely, if not ethically. Given that weaccept autonomous refusal of treatment and the useof palliative medications that may inevitably hasten apatient's death, to refuse a request for euthanasia is,it is argued, moral cowardice.

For many, the commonly invoked differencebetween "killing" a patient and "allowing to die" isambiguous in many cases, and if patients arecurrently allowed to refuse treatment, even if itmeans that they will die, then they should also bepermitted the option of euthanasia. Finally, recentpublic surveys consistently demonstrate strongsupport for the "right to die" in circumstancesinvolving intractable pain and terminal illness.8 1314

The anti-euthanasia position in AustraliaWhilst opponents of active voluntary euthanasia maybe sympathetic to the arguments raised by theproponents of euthanasia they ultimately reject thenotion that killing someone is morally equivalent toallowing them to die and put forward a series ofarguments against the legalisation of euthanasia. Apopular but somewhat paternalistic argument is thatthe law is a blunt instrument and lacks the finesse,sensitivity and compassion to deal with the dyingand that legislation should not intervene at thebedside.3 It is also argued that medical knowledge islimited and cannot always predict the nature of anindividual's life, dying and death. Doctors may makeincorrect diagnoses or fail accurately to predict anindividual's prognosis and even the sickest patientmay recover. What is of concern about euthanasia isthat, unlike other mistakes, once it is performed itcannot be reversed. The discovery of a new therapyor diagnostic error is of no value to a patient who isalready dead and this risk of error weighs heavilyagainst advocating euthanasia.'5

Opponents of euthanasia also argue that there is amoral difference between killing and letting die. Thecontention is that it is morally acceptable and notunlawful to allow a patient to die when the burdensof further treatment outweigh the benefits but, itis not morally acceptable actually to interveneand intentionally kill a patient. This is reflected inclinical practice where the majority of health careprofessionals support the withdrawal or withholding

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276 The legislation of active voluntary euthanasia in Australia: will the slippery slope prove fatal?

of treatment to ease suffering and avoid prolongingthe process of dying."6 The distinction betweenkilling and letting die is not uncontroversialhowever, and has been labelled as logically, clinicallyand philosophically ambiguous. Indeed there wouldappear to be a grey area between providing (or with-drawing) treatment that a doctor knows may con-tribute to a patient's death and deliberatelyhastening the time of death. If there is a moraldifference, and most doctors would appear to believethat there is, then it probably lies in the intent of theclinician involved. The argument is that if the inten-tion is to kill then this is morally abhorrent, whereas,if the intention is to relieve suffering and allow anatural dying process to continue, then this ismorally acceptable.

Opponents of euthanasia also warn that any moveto liberalise the law relating to the care of dyingpatients would herald a major change in the ethos ofmedicine. The argument is that the complicity ofdoctors in the death of patients may undermine thetrust and confidence that patients have in theirdoctors and also diminish the public's perceptionthat the health professions are dedicated to thehealth and welfare of their patients. Indeed, it iscertainly possible that making the "intent to kill"part of the medical ethos would ultimately impairthe trust and mutual respect that form the basis ofthe health care professional-patient relationship.'7The many physicians who support this argument donot reject the centrality of patient rights andautonomy in decision-making, but argue insteadthat whereas patients have a right to decline treat-ment, even where such treatment may be life-saving,they do not have the right to demand treatment,such as euthanasia, which the health care profes-sional, who is concerned with the health and welfareof all patients, cannot morally provide. At this point,however, we are unable to determine whether thelegalisation of euthanasia would have such animpact. Certainly there is no evidence from theNetherlands to suggest that this may be the case. It iswell worth noting that those who advocate voluntaryeuthanasia do not generally dismiss the importanceof trust, confidence and respect in health care, butargue instead that the role of health care pro-fessionals and the proper function of healthcare institutions is defined not by doctors but bysociety.

Since the passage of the Northern Territoryeuthanasia act, Christian and Non-Christianchurches have spoken with a moral unanimity notseen in their discussion and reaction to othercontemporary issues, such as abortion or homo-sexuality. Pope John Paul II has strongly condemnedboth abortion and euthanasia in his latest encyclical,Evangelium Vitae (The Gospel of Life), referring towhat he called the "Culture of Death" prevalent inWestern society. 8 The Uniting and Anglicanchurches, together with the various Islamic councils

and the Right to Life Association, have all urgedopposition to any moves to introduce voluntaryeuthanasia legislation. Each body rejects theargument that euthanasia is the ultimate humanright, arguing instead for a prohibition on killingbased upon a continued recognition of the sanctity oflife, except for the just defence of others and incertain cases, self-defence.A further concern that is frequently expressed in

relation to the legalisation of euthanasia, centres onthe interpretation of requests by patients foreuthanasia. Many of those who work in palliativecare and the hospice movement argue that thedecisions or choices made by dying patients mustnot be too readily accepted, but instead be sensi-tively explored with the individual. The real wishesand needs of the dying are often elusive or poorlyexpressed because of their condition, the effect ofmedications, their fears and beliefs, the informationpresented to them and the biases, needs and beliefsof those caring for them. It is not difficult to imaginethat where people are sick, suffering and aware oftheburden they place upon others, that they may wellchoose to have their life terminated.7 '9 Given thedecreasing importance of the extended family, theinstitutionalisation of the elderly and the growingsocial problems of isolation and loneliness, can webe so sure of the ability of health care workers todetect when the patients' request for euthanasiaarises out of their loneliness, or a desire on their partto diminish the burden they feel they are on thosearound them? Those who oppose euthanasia worrythat the availability of a quick death may introducesubtle coercion on those who are frightened, power-less, or feel that their invalid state is a burden toothers and that for the good of their family and thecommunity, they should choose death not life.20Many palliative care/hospice physicians also arguethat the process of dying is neither a science nor a"problem" to be "solved" by the application ofmedical technology. Rather, they argue that dying isbest addressed not by the legislation of euthanasia,but by improving palliative care outreach servicesand hospice care such that terminally ill patients may"die with dignity" in their own homes. It is certainlyinteresting that those who work most closely with theterminally ill patients in Australia fear that the legal-isation of euthanasia will "medicalise" yet anotheraspect of human life and death and that the deepspirituality, morality and humanness of death anddying will fall prey to the technological imperative.For palliative care and hospice workers the task is torecognise that death is approaching and prepare forit, rather than make an active decision for death.They generally contend that sensitive communica-tion, humane care, compassion and affirmation ofthe worth of each individual is indisputably moreimportant in the care of the terminally ill thanaiming to "cure" the problem of dying with medicaltechnology. 19

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Ian H Keridge and Kenneth R Mitchell 277

It is also argued that acceptance of active volun-tary euthanasia, even where it is strictly controlled,will lead down a psychological and philosophicalslippery slope2" at the base of which lie alteredattitudes to death and dying and the inevitablesanction of non-voluntary and involuntary euthana-sia. The fear is that acceptance of euthanasia willcreate a dangerous precedent, where step by stepcogent reasons may be advanced to justify broaden-ing the circumstances in which euthanasia mayoccur. Initially limited to the terminally ill, thesphere of euthanasia may eventually encompass theelderly, weak, demented, socially unproductive ordisabled - those most in need of support and care.Critics point to the data emerging from theNetherlands, which appear to indicate that evenwhere strict regulations exist both non-voluntary andinvoluntary euthanasia may occur.22 The evidencefrom the Netherlands has become a major focus ofcontinuing debate regarding the clinical and moral"success" of the decriminalisation of euthanasia.Although there are major discrepancies in the data, itwould appear that both non-voluntary and involun-tary euthanasia have already occurred in Holland, asreported in the Remmelink Report of 1990.22 Foropponents of euthanasia, this is a clear demonstra-tion that any attempt to legislate for active voluntaryeuthanasia will lead to the killing of those who do notwish to die. For advocates of euthanasia, these figuresrepresent what they believe is already occurring inAustralia and merely the failure of the Dutch care-fully to monitor what is happening in their country.23

Another related concern of those who oppose thelegalisation of active voluntary euthanasia is that itmight become ". . . a generally available, acceptable,and efficient alternative to suicide".24-27 A recentdecision by the Supreme Court of the Netherlandsnot to punish a doctor for assisting in the suicideof a physically healthy patient with a "depressivedisorder" would appear to support this contention.28A further variant of the "slippery slope" argument

concerns the psychological consequences of legal-ising euthanasia. Although more nebulous, thisargument is perhaps more powerful, contending thatonce we legalise the intentional killing of patients bytheir physicians, then we will inevitably changesociety's perception of the sick, the elderly and thedisabled and ultimately our very understanding oflife and the process of dying. The argument is that intime, we will become "conditioned" to the presenceof euthanasia in our midst and lose our capacity toappreciate the unknowable and inestimable value ofmoments in the dying patient's life - the process ofdying will be replaced by the "act" of euthanasia.'6

DiscussionArguments against active voluntary euthanasia basedupon the "slippery slope" seem to present majordifficulties for the pro-euthanasia lobby. For if the

"right to die" is truly a matter of nights and individualautonomy, that is, the right of individuals to choosewhen and how they will die, then why should thisright be restricted to the terminally ill? Things asidefrom cancer and AIDS may make individuals feelthat they want to die and surely rights shouldnot be determined on the basis of whether one isterminally ill or not. Why should people who are notdying but who have pain, or chronic disease, or aredepressed or lonely, not have the same rights to lifeand death? Indeed, why shouldn't people who areperfectly healthy have the "right to die", to insist thatphysicians assist them to die? If we truly support anindividual's right to choose to die then perhapslogically we must also support assisted suicide andthe use of advance directives (such as living wills) byindividuals who wish to indicate their desire to havetheir lives terminated at some point in the future.

Advocates of euthanasia address these concerns inone of two ways. For some, such as the EuthanasiaSociety and the AIDS Council of NSW, euthanasiashould not be limited only to those who are dyingbut should be available to anyone who feels hewould rather choose death than continue to live withwhat he perceives as an unacceptably poor quality oflife.29 For others, as outlined in the NorthernTerritory legislation, euthanasia should only beavailable to those who are terminally ill and sufferinggreat pain. The difficulty then becomes what pre-requisites should define who can choose euthanasia,and how are these to be determined. One of theconcerns with the Northern Territory act is that itinsists that patients must be terminally ill. Whyshould this be the case? What if a patient is notterminally ill in the generally accepted sense of theterm, but rather is expected to die within three orfive years, or is suffering pain and disability fromsome chronic condition (for example, diabetes) butnot expected to die for many years? It is difficult tosee how any limitations to euthanasia can beproposed that are logically and morally sound.

ConclusionIssues such as active voluntary euthanasia highlightthe problems we still experience as a society whenaddressing the uncertainties and uniqueness ofhuman life, dying and death. There seems littledoubt that the impetus for euthanasia legislation hasarisen in part because of the medical profession'sfailure to provide care, compassion, respect, under-standing and adequate communication to those whoare terminally ill. Perhaps then the real challengethat faces us now is to recognise that although wemay possess the power to intervene in life and deathand to legislate dying, we should instead refrain frompolitical knee-jerk reactions, extend the scope andmaturity of the euthanasia debate, and audit theeffect of the Northern Territory legislation onpatients, health care and society.

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278 The legislation of active voluntary euthanasia in Australia: will the slippery slope prove fatal?

Given that this is the first instance of legalisedvoluntary euthanasia we do not know, as yet,whether support for voluntary euthanasia is basedupon a dangerously naive view of rights, autonomyand society, or whether objections to legalising vol-untary euthanasia are based on illusory, rather thanreal, slippery slopes. What we do know is that theissue is of such fundamental importance to the wayin which we see ourselves, that we should addresseach concern openly and rationally, in open forumand free of polemics. In so doing, we must be carefulto hear and consider all views, whatever their origin.

In the interim, moral issues such as euthanasiawill continue to arise in clinical practice and shouldbe addressed honestly, openly and sympathetically.30It should be recognised that there may be occasionswhere an individual doctor may feel compelled byconscience, respect for individual autonomy andcompassion, to accede to a patient's repeated andinformed request for assistance to die. In such cases,those involved must be prepared to face the closestpublic, professional and legal scrutiny. Our lives, ourdeaths, our dying and our dignity demand anddeserve a more sensitive exploration and under-standing of the euthanasia debate, not the politicalexpediency delivered in the haze of a tropical Maymorning.

Ian H Kerridge, BA, BMed (Hons), MPhil, is ClinicalLecturer in Health Law and Ethics in the Faculty ofMedicine and Health Sciences at the University ofNewcastle, John Hunter Hospital, Newcastle, NSW,Australia. Kenneth R Mitchell, MSc, MED, PhD,Grad DipRelSt, FAPsS, is Senior Clinical Lecturer inHealth Law and Ethics in the same faculty.

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