Big gains for the euthanasia campaign

by Graham Adams / 09 March, 2018

Susan Austen speaks to media after being acquitted of charges she aided the suicide of Annemarie Treadwell. Photo / Katie Scotcher, RNZ

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The country’s biggest medical college is neutral, Suzy Austen is cleared of assisting a suicide, and Bill English quits Parliament.

Submissions to the Justice select committee debating David Seymour’s End of Life Choice Bill closed on March 6 after it had passed its first reading in Parliament with a handsome majority. Seymour did a round of media interviews to spur people to submit, while admitting it was likely that most of the more than 14,000 submissions would be in opposition.

He also noted that is often the case with moral issues, whether it’s civil unions or legalising prostitution, but that politicians are looking for quality over quantity — well-argued submissions rather than rote statements of position.

The same day submissions closed, there was an announcement with great significance for the euthanasia debate but it failed to get attention. The Royal New Zealand College of General Practitioners — which has 4800 members, representing nearly 90 per cent of GPs — announced publicly in its submission that it had adopted a neutral position on assisted dying.

Unfortunately, you’d never guess from the headline on its press release — “College of GPs does not endorse euthanasia” — but when Noted asked the college it confirmed it was, indeed, neutral: “We are not taking a position either way. Our board decided it was a decision for members to make as individuals.” 

The spokeswoman conceded that the headline could be misleading “if that’s all someone read. It could be [incorrectly] construed as us being against euthanasia.

The biggest medical college in New Zealand taking a neutral position in public is momentous. As Auckland health lawyer and end-of-life researcher Pam Oliver told Noted: “That’s a major move by the college and will have considerable influence. The research evidence is pretty clear that a neutral or supportive stance by the relevant medical association, or college, is pivotal in doctors feeling comfortable to engage in providing assisted dying services. Anecdotally, it also appears to have a strong influence on whether politicians will vote in favour of legal AD.”

The college offered a raft of recommendations to improve the End of Life Choice Bill (including raising the qualifying age to 25) but by adopting a neutral stance it lessens the likelihood that doctors will feel shunned or censured by their peers if they support the practice or engage in it once it is legal. 

The New Zealand Medical Association also made a submission repeating its stand against assisted dying in any form, but its influence has been undermined by revelations that it represents only around 20 per cent of registered doctors. That means it covers possibly fewer than 3000 of the more than 14,000 in practice.

Another momentous development in the assisted dying campaign that flew mostly under the media radar was the significance of a not guilty verdict in the trial of Suzy Austen in the Wellington High Court. Austen faced a charge of aiding the suicide of Annemarie Treadwell — an elderly woman who had long expressed her wish to decide the time and manner of her death. The Crown alleged Austen imported pentobarbitone (aka Nembutal), then provided it to Mrs Treadwell, who used it to commit suicide. 

The defence lawyer, Dr Donald Stevens, QC, argued that Austen did not give Treadwell pentobarbitone with the intention that she should take it, but rather: “[Her] intention was that Annemarie Treadwell should have the comfort of knowing that she had control over her end-of-life issues and would have that control because she had the means, if she chose to use them, of ending her life at some point in the future.”

Stevens called on Auckland University’s Professor Glynn Owens, an eminent psychologist who has conducted extensive research into dying, as one of only two witnesses, neither of whom appeared in court.

Professor Owens’ statement, read out in court, said: “The option of having aid available in dying may… give a patient peace of mind and a sense of reassurance, which lessens anxiety and psychological suffering at the end of life. Reduction in anxiety also leads to a reduction in the pain experienced by the patient.”

“The prospect of a good death” seems to “confer psychological advantages”, including “more attention to spiritual considerations and focus on quality of life” — which, together with less anxiety, may have the effect of extending life.

“The reduction in stress may impact both directly and indirectly on the progress of the disease. The body’s physiological response to stress has, over the past decades, become remarkably well-understood. Fundamental to this is a disruption of the body’s normal ‘homeostatic’ processes, the ‘fine-tuning’ of the body which optimises our physical health. The benefits of stress reduction in cancer care are now widely recognised, to the extent that some specialist cancer hospitals now prescribe activities such as meditation as part of the treatment programme.”

Professor Owens’ statement also said that a patient who knew they had the ability to control the end of their lives could “choose not to die prematurely” and might choose not to use the medicine at all — with evidence from Oregon showing that only 64 per cent of patients supplied with life-ending drugs ended their lives by taking them.

In short, providing a lethal drug for an ill patient to hold as insurance against a bad death may be viewed as palliative therapy. And providing a drug for its palliative effects even if death may be reasonably foreseen as an unintended consequence sounds very much like the doctrine of double effect.

Under the doctrine, a doctor is ethically allowed to administer drugs needed for pain relief even if they understand they may hasten a patient’s death, provided the doctor’s intention is to relieve suffering. Intention, in such a scenario, is everything.

Matt Vickers has noted the similarity. His wife, Lecretia Seales, took a case to the High Court in 2015 to establish her right to die with the assistance of her GP, asking for a ruling that her GP would not be at risk of a criminal charge.

Vickers told Noted: “I watched the Susan Austen trial with interest. The key point for me was that a jury of Ms Austen’s peers found her not guilty of assisting suicide because her intent was to ease suffering. Interestingly, this is extremely similar to the argument doctors use under the doctrine of double-effect. Does the Austen trial mean a doctor could give life-ending medication to a patient under existing law if their intent is not for a patient to take it?"

Vickers added: “Ms Austen's trial has emphasised that there is an extremely grey area within the law around the Crimes Act and assistance. It’s the same grey area that inspired my wife to take the case that she did.

“The End of Life Choice Bill doesn’t clear up that grey area completely, but it does provide a regulated and monitored process that extremely ill New Zealanders can avail themselves of in a way that is safe for them, their doctor and their loved ones. I think that’s a vast improvement on the status quo, and will help us shine a light on end-of-life practices in New Zealand.”

Last but not least in the run of good news for those in favour of an assisted dying law, Bill English has left Parliament. A devout, practising Catholic, he has been a hugely influential opponent of legalising assisted dying for decades, determined not to allow a bill to progress, even to select committee. He voted against legalising assisted dying in 1995, 2003 and 2017 at the respective bills’ first reading.

In November 2016, the then prime minister, John Key, acknowledged that he was personally in favour of assisted dying — as was more than half his party — but some “very strongly religiously orientated” MPs were adamantly opposed. English determinedly led that group and his absence in Parliament will make the passage of legislation less contentious.

It’s true that the party’s new leader, Simon Bridges voted against the End of Life Choice Bill at its first reading and has cited “sanctity of life” as one reason for his opposition. But he has also said he initially considered voting for it to at least go to select committee to be debated. He also said he wouldn’t rule out changing his mind, even if that seemed unlikely. Bill English would never have publicly entertained that possibility. 

With English gone, the door to change has opened wider.

And change is closer internationally. In November, Victoria became the first state in Australia to legalise assisted dying for the terminally ill while, on March 6, Hawai’i’s state House of Representatives voted 39 to 12 to allow assisted dying. The bill now goes to the Senate for consideration.

Significantly, the Hawaii Medical Association, which has historically fought against “death with dignity” laws, said last year it would adopt a neutral position and not oppose legislation. Its executive director, Dr Christopher Flanders, said: “Sometimes the writing’s on the wall, and we have to accept that.”

If the bill is passed into law, as expected, Hawai’i will become the eighth jurisdiction in the US to adopt such a law, alongside Oregon, Washington, Montana, Vermont, California, Colorado, and the District of Columbia.

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