Bulletin No 11

It is now ten years since I joined what was then called the ACT branch of the Voluntary Euthanasia Society of NSW. I joined at a crisis point for the organization because there was a strong possibility that it would fold. It was revived with a new committee. I am the only person still on the committee from that time. We have had a continuous turnover of people primarily due to health problems. One implication of this is that it is very easy for governments to ignore us because we are old, we are sick, we have sick relatives we look after and we don’t have consistent energy to argue our case.

I thought that I would use this Bulletin to provide you with an overview of what we have achieved over the last ten years. I’m doing this in part to counter what may appear to be non–achievement.

In 2012 we separated ourselves from the NSW body and developed our own constitution. What follows is the preamble and first four aims of our constitution.

Preamble

We assert that our bodies belong to us as individuals and that we have the right to determine the circumstances of our dying & death as we have in the rest of our lives. We expect our community to support our wishes and provide the facilities required to enable us to have the death of our choice.

Aims

  1. To work with the ACT community to create the legal environment in which all adult ACT & region residents can die with dignity at a time and place of their choice with the degree of assistance that they determine is appropriate.
  2. To promote the concept of an elective death as an alternative to concepts of suicide or voluntary euthanasia and to encourage support for elective death on Medicare.
  3. To promote the idea that those who want to shorten their lives should be able to have a peaceful death.
  4. To encourage the use of medication that would provide people with a peaceful, pain free, quick death.

One of the first things I did when I was secretary of the organization was to write to John Stanhope (the then Chief Minister) to ask him if it would be possible to let the Director of Public Prosecutions make a judgement if a case came to court that involved giving assistance to die. He wrote back referring me to Section 17 of the Crimes Act and Section 23 1A of the Self – Government Act.

Section 17          Suicide – aiding etc
1) A person who aids or abets the suicide or attempted suicide of another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.

Part IV Powers of the Legislative Assembly

Section 23 Matters excluded from power to make laws

(1A) The Assembly has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life.

I was naïve enough to be puzzled as to why assisting people to die who were already dying had anything to do with suicide.

Even before we became a body in our own right DWDACT was looking for legal guidance about the way forward in the ACT. I sought legal advice from a sympathetic lawyer Janine Lloyd who had spoken at our first public forum at the ANU. One thing that had always puzzled me was why the law allowed us the freedom to end our own lives by decriminalizing suicide in Section 16 but then in Section 17 made it a crime to help anyone to die. How could politicians pass a law that had the consequence of making people hang, gas or shoot etc themselves?

Section 16 of the Crimes Act 1900 is titled         Suicide etc – not an offence

The rule of law that it is an offence to commit, or to attempt to commit, suicide is abolished.

Her cynical answer was that politicians make bad laws all the time. Her serious answer was to recommend that I approach the ACT Human Rights Commission and see if the Human Rights Act could give us any help. I looked at both the Federal Human Rights Act and the ACT Human Rights Act. We made submissions to both the Federal Human Rights Commissioner and the ACT Human Rights Commissioner. The Federal Human Rights Commissioner recommended that we write to our national bodies such as COTA and National Seniors. I wrote to them both and received no reply. The ACT Human Rights Commissioner replied after a number of submissions suggesting that we could apply to the Supreme Court as a group who believed we should have the right to die. Other lawyers I spoke to advised against this for a number of reasons.

The attempt to make some impact through the ACT Human Rights Act did put me in touch with Heidi Yates who has since become the Head of General Practice at Legal Aid ACT. Recently Heidi contacted me to ask if I would be interested in making contact with the ACT Law Society President Sarah Avery. I of course said yes and I will be speaking with Sarah and the Elder Law Committee next year.

Examination of the law makes it clear that even though politicians agreed to the decriminalization of suicide, in their minds it is still an unacceptable act so everything around it is designed to make ending your own life difficult. To begin with even though the act of ending your own life is no longer a crime the act is still called ‘suicide’ or ‘self-murder’ as if it still were a crime. This is logically impossible so it should be changed and DWDACT recommends that it should be called an ‘elective death’. (See point 2 of our constitution) Secondly, Section 17 makes it impossible to get help to end your life. If a person wishes to die they are forced to die alone and generally violently even if the person is dying and there is no possibility of a cure or recovery. Even dying people must be prepared to go through with what nature dishes out to them. For our politicians there is no alternative. In the recent inquiry in Victoria the most shocking element of the reporting to the committee was the description of the elected deaths of people who were dying but preferred a violent, lonely death to what nature (via the law) was making them experience.

The argument presented by all governments and one that is unfortunately accepted by dying with dignity groups worldwide is that this law is designed to protect ‘vulnerable’ people. I question how it does this. Despite the existing law just over 2000 people hang, gas or shoot etc themselves each year in Australia. Would more people die if they were given assistance to die? We now know that all living things have a strong drive to survive so people who make a decision to die have switched off that drive in some way and are no longer motivated by it. Because the law forces them to die without assistance and not to talk to anyone about their wish to die there is no way to intervene or even understand this process. If we gave assistance to die we would have the capacity to intervene. Dying with Dignity ACT proposes an Elective Death Centre which would be included as part of ACT Health providing a place for people to die a peaceful, pain free death, a counselling facility for those seeking an elective death who are not dying and an education facility for those who wish to learn more and talk about death.

I have spent the last ten years attempting to make some change through the ACT Labor Party. At every stage I was blocked and defeated. I tried every avenue except joining a faction which I could not bring myself to do it because I did not believe in it. I became a member of the Labor Party when I retired because I had voted Labor since my youth and had a background in the ACT branch of the Australian Teachers Union. I thought that if I believed in Labor and in euthanasia that I would find like-minded people in the ACT Labor branch. I found some but not enough to make a difference. In the end although there was not the closed door that I found when we lobbied the Liberals there was insufficient support to warrant continuing the struggle to find those like-minded people.

This suggests that our major party MLAs are unwilling to get behind changing the law and we have to find a new way to make an impact. In his last letter to me the Chief Minister (Andrew Barr) recommended that we lobby members of the Federal Parliament. This is something that I have been urging the committee to do this year. The ill health of relatives who need our care has delayed this activity but we will continue to pursue it. Another strategy that we have begun is to recommend to people who believe in reform of the law in relation to death is to vote for minor parties that have pro euthanasia policies. This is what we did at the last ACT election.

In about 2008 a meeting was held over a weekend in Adelaide with all the state and territory societies present and the legal representatives of the Clem Jones Group. Clive Monty (our then secretary) and I attended as the ACT representatives. This meeting began the agreement to form what became known as YourLastRight.com which still meets as needed to discuss developments in the various states. It was formally approved in 2010 at the Australian part of World Federation Right to Die Society Conference in Melbourne. These international conferences are held every two years. I have since attended each one in Zurich in 2012, in Chicago in 2014 and this year in Amsterdam where I became a Board member.

As a member of YourLastRight.com and The World Federation Right to Die Society, Dying with Dignity ACT is linked nationally and internationally to like-minded organizations. As I mentioned in my last Bulletin YourLastRight.com helped to fund Go Gentle Australia. Although we have no formal link with Exit international we have many members who are also members of that organization.

Our guest at our last Public Meeting, Frances Coombe (Vice President of YourLastRight.com and President of Saves) made some good suggestions for some tactics we could use to influence our politicians. Our public meeting was attended by around 70 people including Labor and Green politicians. No Liberal Party politicians attended although along with all other politicians both local and federal they were invited. Unfortunately the bill tabled in South Australia just missed out on passing but I was very pleased that Frances was able to fill us in on the details of the legislative process and the questions asked showed to the MLAs present how interested our attendees were in being informed about the debate that occurred in South Australia.

True to their goal of helping all legislative reform for euthanasia Go Gentle Australia was actively present in South Australia during the latest bid for a law for assisted dying. Frances reported that their presence was very helpful in counteracting the lies that organizations such as HOPE Foundation and others put forward.

I wish to thank those members who made the donations that made her visit possible. The extra money made it possible for us not only to put an advertisement in the Canberra Times for the election but also to advertise the Public Meeting and fly Frances here. Public meetings are helpful in building knowledge of DWDACT and what we are doing. I hope we can hold more of them in the future. Next year we may have a law in either Tasmania or Victoria or both. It would be good to have a speaker from one or both of those places.

This year I found a litigant who was willing to go forward with action in the ACT Supreme Court but when I spoke to Bernard Collaery he ‘discovered’ a reason why we could not pursue this legal avenue. I already knew that even if the Supreme Court found in our favour that there was an inconsistency between our Human Rights Act and the Crimes Act that it still would rely on the ACT Assembly agreeing that there is an inconsistency and then it would still be limited by section 23 1A which prevents it from making laws to allow assistance to die or what our constitution would prefer it to be called ‘an elective death’.

As your President I have taken the approach that we need to firstly analyze our laws closely to look for weaknesses and debatable points in the law that ACT politicians could use to argue the case for the removal of section 23 1A and secondly provide a model, the Elective Death Centre, which would be useful for them to look at.

I also believe that since we have our own laws which are different from those in other states we have to ‘do our own thing.’ What other states, territories or countries have done is a helpful guide but cannot be followed slavishly because their laws are different. We are a unique area of the world and must think for ourselves. This is what all the other areas of the world have done in constructing their own response to this need for a change to the law on dying and death.

I believe that our ACT politicians could argue at the Federal level that

  1. For people who live in a free and democratic country Sections 17 and 23 1A are a completely disproportionate response to Section 16 which gives us the legal right to end our own lives. (The Supreme Court decision in Canada and the law in Switzerland provide alternative responses)
  2. Section 17 of the Crimes Act is inconsistent with many sections of our Human Rights law. (The Supreme Court decision in Canada and Switzerland provide alternative responses)
  3. It is not possible to ‘aid and abet’ something which is not a crime.
  4. Euthanasia is not intentional killing.
  5. In passing Sections 17 and 23 1A Federal and ACT politicians have made themselves vulnerable to fitting the ACT definition of murder

(1) A person commits murder if he or she causes the death of another person—

  • intending to cause the death of any person; or
  • with reckless indifference to the probability of causing the death of any person

Although politicians do not intend to cause our deaths it is clear that they have passed these laws in order to ensure that we that we will not die any other way than by disease. Our deaths by disease are intended by our politicians because they think that death by disease (euphemistically called ‘natural causes’) is natural, right and godly.

That we will die is inevitable. Very few people question this. In actively using Sections 17 and 23 1A to prevent us from being able to act on Section 16 to end our lives when we wish, which we are legally able to do, the law causes us to die by disease. The law puts us in the position of having to find a person who would be prepared to break the law to help us die or hang, gas or shoot etc. ourselves or break the law ourselves to import Nembutal if we do not want to die by disease.

All these penalties have been put in place intentionally to ensure that ending our own lives at a time that suits us and achieving a peaceful death through proper medication are choices most people will not make and cannot have. Death by disease is by default the only means of death allowed. Therefore it can be said that our politicians have used the law not to cause our deaths but to eliminate all causes of death except for disease.

Death by disease is no longer just the natural failure of our bodies to continue living; the law has made it the instrument by which we are intended to die. Death by disease is no longer ‘natural’ because it is compelled, being from our politicians’ point of view, as the only way we may die or from others’ point of view as the least bad option of a number of bad options including hanging, gassing or shooting ourselves or breaking the law to obtain Nembutal.

Without the freedom to die the death we choose out of our own free will rather than as a function of being forced to make the least bad choice allowed by law, our deaths by disease have become manipulated, driven and determined by human agency. With a free choice and no stigma attached to how and when they die who would opt for a long miserable death by disease, or hanging, gassing or shooting themselves when they could have a peaceful, pain free, quick death?

As a consequence of making the person who gives assistance to die a criminal, politicians have knowingly shown ‘reckless indifference to the probability of causing death’ to those who elect to hang, gas or shoot etc themselves because they have the statistical evidence that tells them that some people have always ended their own lives and are therefore likely to continue to do so. They have also shown themselves as indifferent to the many articles, complaints and attempts to change the law over the last thirty or more years which reveal the great suffering people endure when dying and at the time of death.

I believe that a proportionate response to Section 16 in the Crimes Act would have been similar to the way we regulate driving. Each year in Australia we know that around 1000 people die on the roads. Despite this we allow people to drive after they have got licenses and taken proper precautions such as wearing seat belts, and we work continuously to improve the safety of cars and roads. When we get in a car we know that there is a possibility that we could have an accident which results in injury or death. The law and our own desire to live cocoons us from this likelihood. But we do not think that because some people die as a result of traffic accidents that no-one should be allowed to drive.

In a free and democratic society an elective death would be treated with the same precautionary respect. An Elective Death Centre would provide that respect.

ELECTIVE DEATH CENTRE

  1. An Elective Death Centre would be based on the following principles and definitions in legislation, regulation and communications.
    • It is the responsibility of government to ensure that everyone dies with dignity. No-one should be excluded from having a good death.
    • A good health system should be able to guarantee a good death. A good death is defined as a peaceful, pain free and quick death.
    • A civilized society respects the rights of its citizens to die at the time of their choice.
    • To elect death is a legitimate goal that some people have for themselves.
    • Like birth, death is a matter of individual choice and in the same way it should be supported by the State.
    • Elective death is defined as a voluntary decision to shorten one’s own life.
  1. An Elective Death Centre would be well-publicized in or linked to a local hospital.
  2. The Elective Death Centre would have a) a 24 hour a day service with the resources to make professional personal, financial, and relationship counselling available to clients as well as immediate access to police, the coroner, organ donation and funeral services; b) an education facility designed for all members of the community and targeted for specific age groups and their particular stage of life needs to educate and inform people about death; to assist people to let go of life, to understand what death is and to prepare themselves for death; c) rooms with the facilities to assist those wanting an elective death to die comfortably in the presence of people they select; d) provision of the facilities to enable a peaceful, pain free and quick death to be undertaken independently without the help of other people.
  3. The Elective Death Centre would provide any adult ACT citizen with an elective death following a) provision of a reason for the wish for death, b) offers of help through counselling or other assistance as needed, c) a cooling off period negotiated with the person wanting to die. The decision to die would be respected as would the decision to live.
  4. On diagnosis of a terminal illness, terminally ill people may request a referral from their doctors to the Elective Death Centre for an elective death at the time of their choice. Accessing the counselling services of the Elective Death Centre would be a matter for them.
  5. The Elective Death Centre would be required to maintain records of the reasons for people requesting an elective death and report regularly to the Assembly on their findings.
  6. The ACT Government would co-ordinate public and private health systems to link into the Elective Death Centre so that they can refer clients to it.

 

Death by Disease An Elective Death
Suicide (now a meaningless term) Elective Death
People die by hanging, gassing, shooting, drowning, jumping etc. People receive counselling and if they still want death they are provided with a peaceful death
Doctors who assist a death are criminals Doctors refer patients to elective death Centre
People die without assistance in a variety of places as a result of their diseases. People would take their referral to the Elective Death Centre to die there. Alternatively the Elective Death Centre staff would go where they were required to assist people to die.
Doctors and nurses currently are required to make people comfortable but have to stand by watching while people die. Staff (The Swiss model shows that they do not have to be medical) are trained in the use of medication to assist people to die and to provide support and comfort to the death elector and relatives.

 

Best wishes for the 2016 holiday season.

Jeanne Arthur

President

Dying with Dignity ACT Inc.

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