Patient Consent in Euthanasia Cases in Australia

Patient consent in euthanasia cases in Australia

Introduction

Whether or not euthanasia is being practised in the community is no longer a topic of debate. Surveys of Australian doctors and nurses have established that requests by patients for a hastened death are commonplace and that compliance with them occurs in around half of these cases . At present, Euthanasia is hidden behind the notion of double effect, that is, that a doctor may legally administer drugs that he or she knows will hasten death if his or her primary intention is to alleviate the pain of the patient . This is a flawed notion in that it is almost impossible to disprove a doctor's assertion of what his or her primary intentions were. It lends itself to the abuse of doctors who seek to hasten the death of a patient without their consent, no matter how altruistic their intentions for doing so are.

It is completely undesirable for the death of a patient to be brought about or hastened without their consent, and we must therefore change the way we view the issue of the legal-permissibility of euthanasia. Our focus must no longer be on the intentions of the doctors making medical end-of-life decisions, but on whether the rational consent of the patient whose death is being hastened has been obtained. Active voluntary euthanasia has become accepted by the majority in the community and can no longer be branded as an immoral and illegal practice. Just as a there is a clear distinction between making love and rape, and between a gangster stabbing someone maliciously and a doctor making an incision during surgery, there is a clear difference between culpable murder and active voluntary euthanasia (see below for definition.) In all three cases the consent of those involved "deprives the act of its anti-social character."

Meaning of euthanasia

Euthanasia is often used as an umbrella term that lends itself to confusion. For clarity's sake it is important to distinguish between the different types that exist: (Please note that since non-voluntary and involuntary forms of euthanasia do not involve the procuring of consent, they will be disregarded in this essay.)

1. Passive voluntary euthanasia: An omission or inaction by a doctor holding the consent of the patient that results in death. For example, the withholding of life-prolonging treatment.

2. Active voluntary euthanasia: An act by a doctor who has the patient's consent that results in their death.

3. Assisted suicide: The doctor provides the means by which the patient can commit suicide.

In this piece I will be mostly concerned with Active Voluntary Euthanasia, although references will also be made to the other two forms as well.

The Victorian legal position

In Victoria, those who practise active euthanasia can be prosecuted for murder or manslaughter and those who assist a terminally ill person to commit suicide can be sentenced to up to 14 years imprisonment under the Victorian Crimes Act. While it is the same legal position as that for normal homicide and assisted suicide. , the way in which they are judicially treated differs. Most cases are not prosecuted at the discretion of either the police or the crown prosecution. The few cases that do make it to trial are treated extremely leniently, with either the jury returning a 'sympathy verdict' of not guilty or the judge imposing an extremely lenient sentence for those who are found guilty. 8

In 1988 'The Victorian Medical Treament act' was enacted to clarify the common law position regarding the refusal of treatment by a patient. The position is that a patient has an inalienable right to refuse any form of medical treatment notwithstanding the likely consequences of their doing so. 9 It is interesting to note that withholding treatment necessary to preserve life is a form of passive euthanasia, and that patients are therefore already able to consent to a form of euthanasia. As yet, however, the realms of the law have not been extended to permit a terminally ill patient from consenting to active euthanasia.

Consent and the issue of morality

Consent has already been accepted as bearing legal significance in end of life decisions: it has long been a principle at Common Law that one may refuse any form of life-prolonging treatment, and the enactment of the Medical Treatment Act in 1988 affirmed this position in Victoria. One can therefore consent to what would otherwise amount to unlawful homicide by a doctor who is under a professional duty of care. The question may then be asked why one can consent to one form of homicide but not to active voluntary euthanasia? Why are such arbitrary limits being placed on our consent?

It is generally the case that where an act is considered to be at odds with the morality of society, consent is not an acceptable defence. Therefore, while one can consent to being kissed on the cheek notwithstanding that the kiss would otherwise constitute a common assault, one cannot generally consent to conduct that results in bodily harm. There are some notable exceptions such as surgery, tattooing of adults and legal sporting activities that are seen as acceptable and necessary in the public interest. For all three activities consent can be used as a defence.

Lord Devlin's comments are quite pertinent when addressing the issue of consent:

"There are certain standards of behaviour or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured, but against society as a whole."

The question is whether active voluntary euthanasia should fall into the category of offences described by Lord Devlin as "against society as a whole"? Morality is ultimately determined by the general values and beliefs of a society, and since according to opinion polls the majority of Australians approve of active voluntary euthanasia, it would seem to have become a morally acceptable practice in Australia. 26 The only other possible justification that the government can have for continuing to prohibit active voluntary euthanasia is that it is harmful to society in ways that cannot be appreciated by the general public. But when a terminally ill adult of sound mind makes a carefully considered decision to have his or her life terminated by a medical practitioner also of sound mind, how can this be harmful to the community as a whole? There is no evidence that the Dutch have taken a slide down the proverbial "slippery slope" as a result of the implementation