Contemporary society and modern medicine often are faced with contentious policy decisions and perhaps none of these is more difficult to reconcile than that of euthanasia. This paper aims to address this contention by examining the socio-moral position of both euthanasia’s advocates and critics in acknowledging, that we should address the issue from a different perspective. In that, if we reduce the complexity of this issue into one of polarity with two opposing arguments, that of “intrinsic value of life” verses “quality of life”, the later should prevail. Furthermore, this paper seeks to explore the very notion of what makes a life worth living? In doing so, it will look at how autonomy, critical interests and liberalism play an essential role in the consideration of this question. Finally, there will be an analysis of the ways in which the law has both attempted and failed to protect these “essential elements” for a life worth living (in regard to euthanasia), through an examination of contemporary developments in Australian law.
Euthanasia, literally means, “good death” or to “die well”; in short, a death that is peaceful and humane. The term has also come to mean, “the act of inducing a good death”. There are however many terms which employ the word euthanasia or cover acts which could be closely associated with it, given the breath of this issue, this paper aims only to focus on those acts or terms which cover and consider capacity and competency of the decision by the patient or person seeking euthanasia, namely voluntary & active euthanasia and also physician- assisted suicide (active schools). It should be noted that passive euthanasia may also be considered to be an act of competency and its distinction from more active schools is worthy of attention. However, the term is falling into disuse and perhaps a “preferable terminology is selective non-treatment.” Nonetheless, the area of passive euthanasia is of interest when analysing the legal protection extended to an individual whose death can be attributed to it and those who passively acted in assisting with it. This distinction from more active schools of euthanasia and the legal position, in which it is situated, will be reviewed later in this paper.
Voluntary euthanasia can be described as an act where, “a person competently requests help to commit suicide or asks to be killed.” Active euthanasia is where the death of the patient is a result of their intention and also attributed to the provision of aid. Physician assisted suicide, is as it suggests, where a patient competently requests a physician to supply them with the means for their own death. All three terms have at their core the notion of intention and competency. This intrinsic commonality lies at the heart of the euthanasia debate; as on one hand, the intention to end one’s life is seen as abhorrent, regardless of the circumstances and on the other, the same concern is juxtaposed by a competency of the decision maker and their right to do so.
“A doctor who is unconcerned about the quality of life is inhumane; and the real enemy is not death but inhumanity.”
In quantifying the argument on quality of life it is important to distinguish the difference between the futility of treatment and the worthwhileness of a person’s life. In his article, ‘Restoring Moral and Intellectual Shape to the Law After Bland” John Keown makes such a distinction. Keown takes quality of life to mean the, “assessing of the worthwhileness of a person’s life.. [and] if it falls below a certain threshold, it becomes a life not worth living.” This is view, according to Keown that the House of Lords took in Blandand the position of this paper.
Judy, a cancer survivor with a high chance of terminal relapse, chants an all too familiar mantra regarding quality of life, “surely there’s more to life than just surviving.” The decision for Judy to end her life is at the heart of the “active” euthanasia discourse and one steeped in intention and competency.
Judy’s case, like countless others, reflects a competent decision by adults with incurable illnesses to end their lives, to be able to, “jump before [they] are pushed.” If we are to address the question of euthanasia from a different perspective, that of quality over the intrinsic value of life, then the issues of beneficence, probability of recovery and dignity are key factors.
The argument for the use of beneficence in relation to the quality of a patient’s life is based upon the act of compassion to reduce the level of pain endured by the terminally ill and in doing so their suffering; thus minimising what could be deduced as cruelty. To withhold or prohibit the use of active schools of euthanasia, could amount to unnecessary suffering on the part of the patient, particularly if there is little chance for recovery. Thus compassion dictates that a competent patient should have the ability to ask for a, “merciful release from prolonged and useless suffering.” If a person is faced with the prospect of prolonged pain and suffering it is hard to argue that their quality of life will remain unaffected.
When one speaks of the probability of recovery, it should not be confused with the argument regarding the futility of treatment, as stated above. When we talk of probable recovery in relation to quality of life, we speak of the patient’s “worthwhileness” in the face of the degeneration that their condition has bestowed upon them. An inability to enjoy even basic pleasures that were once taken for granted, let alone ones more complex, directly reflects upon one’s quality of life. If we are denied something that was a “norm” with no prospect of ever re-obtaining it again, but instead are faced with the probability of only future losses, ones quality of life is surely diminished.
A right to die with dignity is often stated by those seeking more active forms of euthanasia to be of quintessential importance. As Dworkin states, “making someone die in a way that others approve, but he believes a horrifying contradiction of his life, is a devastating, odious form of tyranny.” The death with dignity argument is one which could be said to be concerned with control. That faced with the prospect of a slow death, in many cases coupled with a degenerative physical condition robbing the patient of a quality of life and mobility to which they are accustomed, many patients feel out of control. To these patients, actively taking or seeking assistance to take, their own life, offers empowerment in an otherwise powerless situation. Joseph Fletcher speaks of, “the right of spiritual beings to use intelligent control over physical nature rather than submit beastlike to its blind workings”, here “intelligent control” means the capacity and competence to determine ones death with dignity. The respect of human dignity is seen as an alienable right and so the active control of one’s death is a matter of human dignity, “without it persons become puppets. To perceive this is to grasp the error lurking in the notion … that life as such is the highest good.”
Immanuel Kant observed that rational human beings should be treated as an end in themselves and not as a means to something else. This means, the very fact that we are human, has value in itself. This position is central to the advocates who support the intrinsic value of life over its quality. Human life, it is argued, is sacred and as such it holds an intrinsic value and should be protected at all costs. To those who support this view, it doesn’t matter whether our life is successful, healthy and enjoyable, the simple fact that we exist means we have value and nothing else. Following this, to end our own life or to assist with the euthanasia of another’s, is to disrespect our inherent worth, in that we are treating ourselves as a means to our own ends.
Such arguments seem hollow when passive euthanasia, (the withdrawal of treatment) or the doctrine of Double Effect is widely considered acceptable by non-secular groups and legally permissible. If life is of intrinsic value, then all conditions in which it manifests should ostensibly, be of the same value.
Although this argument is non-secular based, there are however more secular grounds used to support the intrinsic value of life position. One such argument is that euthanasia poses an inherent risk to the community in so much as, “suffering people need the support of others; suffering people should not be encouraged to commit suicide by their community, or that community ceases to be a community.” This argument however fails to recognise the growing public support for active schools of euthanasia. A recent 2010 Newspoll found 85 per cent of Australians believe in the right of the terminally or incurably ill to obtain medical assistance to end their lives. As did a 2007 survey which found 80 per cent support (including 75 per cent declaring themselves to be Christian).
Finally, it has been suggested that by supporting more active euthanasia approaches, advocates are ignoring the role that palliative care can play. It has been argued that if we treat life as something non-intrinsic we could damage the medical profession. That if doctors were to begin to administer active schools of euthanasia, it would undermine and compromise, “the objectives of the medical profession and destroy the trust and conﬁdence essential for the doctor-patient relationship.” However, it can be argued that if the medical profession plays an active role in assisting the death of those patients enduring intolerable suffering, they are doing so in compliance with their “professional integrity and the basic duties and norms of medicine.” Although pain-management is also considered a viable alternative to active schools, its position is weakened by the arguments raised previously in this paper regarding an individual’s quality of life relating to “death with dignity”.
In addressing the detailed and polarised arguments regarding euthanasia in regard to quality verses the intrinsic value of life, ‘‘negotiating a path between the various sides is deeply problematic’’ due to the positions held being so firmly entrenched. However, given the points raised above, it is the opinion of the author, that in such a discourse, quality should prevail over sanctity when addressing the concerns raised by schools of active euthanasia.
“Give me liberty, or give me death!”
In assessing “what makes a life worth living?” I am drawn to the work of John Stuart Mill, in particular to “On Liberty”, where the author outlines an argument for the freedom of an individual, in response to the position of the state imposing unlimited control. In doing so, Mill creates a defence towards the, “rights of the individual against the state”. Through this work, Mill develops the idea of the “Harm Principle”, which states that an individual has the right to behave as he wishes upon the condition that his behaviour does not harm others. So long as the behaviour is isolated in its effect to the individual undertaking the course of action, society at large has no position to interfere; even if that action is causing direct harm to the individual himself. Although Mill argues that individuals who do serious harm to themselves are not afforded the liberty of protection of the Harm Principle (due to the fact that we do not live in isolation and so when we commit harm to ourselves we are also bringing harm to others) The principle can be used to support the value of a life worth living.
Living in a liberal democracy the role of state interference towards our individualism is seen as a hindrance to the enjoyment of our lives. This is also true when one invokes the Harm Principle, as if the state interferes in the actions of individuals which do not harm others, our lives become less free. If freedom is the talisman of modernity, a life without autonomy and the choice to make decisions, regardless how unpopular, could be seen as contributing to a life less worth living.
In regard to Mill’s position that those who harm themselves are not protected by the Harm Principle, if we consider that those who find themselves in the position of considering euthanasia as a “viable life decision”, it could be argued that they are doing no more “serious” harm to themselves than that which the illness they carry has already affected them with and as such, are protected. Additionally, it could be surmised, that as it is the “terminal illness” which is causing “serious harm”, the state’s function is to correct and amend it, without causing “harm” to the individual who seeks it.
Furthermore, Dworkin’s notion of “critical interests”, that is, those interests an individual possesses and whose practice substantially makes one’s life better, (or worth living) raises the concern that death in itself could be a “critical interest”. This means that an individual should have the right to determine the manner in which they die, as a “good death” (namely – swift, pain-free and dignified) ultimately echoes the entirety of an individual’s life and in doing so, offers an opportunity to affirm it, thus making it worth living.
“If the doctor honestly and sincerely believes that the best service he can perform for his suffering patient is to accede to his request for euthanasia, it is a grave thing that the law should forbid him to do so.”
As Mill stated, the individual over himself, over his own body, is sovereign. When we address the concern of how the law protects this, in relation to euthanasia, we find a disparity between the notion of autonomous beings and the law.
It should be noted, before continuing, that not all areas of euthanasia are at conflict with the law. As mentioned earlier, passive schools, such as the withholding or withdrawal (deliberately), of life prolonging treatment, “has become an established part of medical practice and is relatively uncontroversial.” As with the doctrine of “Double Effect”, where a doctor may give pain relieving drugs which hastening a patient’s death, but lacks the intention to kill, as their motive is pain relief, (even if the patient has asked for help to die); as in such cases, the doctor escapes liability.
Where a conflict does exist is between autonomy and the active schools of euthanasia. Here the law, “… provides the apparently irrational result that people can choose to die lingering deaths… by refusing treatment… or by being disconnected from respirators… but they cannot choose a quick, painless death that their doctors could easily provide.”
Currently, no state or territory, in Australia has legislation in place allowing active schools of euthanasia. Although the Northern Territory once had legislation in place it was short lived and made effectively redundant by the Commonwealth. This is not so say that the nation has been inactive in attempting to pass effective legislation to bridge the inconsistencies between autonomy and state interference regarding euthanasia. Western Australia, Victoria, Tasmania and New South Wales have all attempted to pass legislation legalising voluntary euthanasia. Here in South Australia, law makers have been prodigious with numerous attempts since 1995, the most recent, the Voluntary Euthanasia Act 2012 (SA) being tabled in the House of Assembly in March of this year.
Even though the variety of legislative attempts may have differed from one another in their approach, all sought to remove the criminal element from those seeking or assisting the consensual intention to end one’s life. This issue, in the writer’s opinion, clearly cannot be ignored; considering the social stigma and severity of being a suspect in a murder investigation with the possibility of being charged for the death of a friend, relative or patient.
Interestingly, there is little evidence to suggest that a rise in the legalisation of euthanasia will result in an increase in a nation’s morality rate. To the contrary, in nations where euthanasia has been legislated, many patients fail to “follow through”. Alternatively, they find comfort with the choice that they could, if they so wished to do so. Ergo, the argument to legislate also steams from a concern of control or choice which, as mentioned previously, is an element of what makes life worth living.
In short, Australia follows the rest of the world, in regard to its laws on the subject. With the exception of The Netherlands and Belgium which permit active euthanasia in certain situations. Also, the state of Oregon in the United States has passed legislation allowing assisted suicide, as has Switzerland; providing that the assisting individual is not doing so through self-interest, but rather does so through altruism.
It is clear that there is scope to address the gaps between what the law provides and what consenting adults seeking to expedite their death through active schools of euthanasia require. Until the disparity between the two has been resolved, the law fails to protect certain elements of what makes a life worth living as expounded by Mill and other advocates of liberty and autonomy.
Looking forward, it is difficult to imagine an approach to this issue which will happily satisfy both those proponents who support the quality of life approach and those who view the value of life as intrinsic.
However, perhaps the issue is better viewed through the management of approaches already in place. As ultimately there needs to be a regulatory approach to medical practice when assisting in the death of a consenting adult which addresses ethical concerns and patient safeguards. Simultaneously, in failing to regulate those deaths which are currently not medically assisted, we run the risk of “backyard solutions”, not dissimilar to backyard abortions, situations which need be raised to a more humane and civilised level.
Until we address the issue of euthanasia from a different perspective, it is impossible to fathom how those people seeking to affirm the quality of their life, in the face of death, will be anything but marginalised to exist in the penumbra of the law and morality.
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 Cameron Stewart, ‘Euthanasia and Assisted Suicide ’ in Ben White, Fiona McDonald, Lindy Willmott (eds), Health Law in Australia (Thomson Rueters, 2010) 415, 417.
 South Australian Voluntary Euthanasia Society, Handbook of the South Australian Voluntary Euthanasia Society (October 2010) South Australian Voluntary Euthanasia Society <http://www.saves.asn.au/resources/handbook/rtc2.php>.
 Above n 2.
 J.K. Mason Black, ‘Death and Dying: One Step at a Time?’ in Sheila McLean (ed), Death, Dying and the Law (Darthmouth, 1996) 161, 162.
 Above n 2.
 Catholic Health Association, ‘Care of the Dying: A Catholic Perspective, Part IV, Theological, Moral, and Pastoral Response – the Transformation of Suffering.’ (1993), 74 (5) Health Progress. 46-54.
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 Christiaan Barnard, ‘The Need for Euthanasia’ in A.B. Downing and Barbara Smoker (eds), Voluntary Euthanasia: Experts debate the right to die (Peter Owen, 1986) 173, 177.
 John Keown, ‘Restoring moral and intellectual shape to the law after Bland.’ (1997), 113 The Law Quarterly Review. 481-503.
 Glenys Williams, Intention and Causation in medical non-killing (Routledge-Cavendish, 2007) 75.
 Above n 13, 487.
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 Do Not Resuscitate (Directed by David Dirlic, Circle Films, 2006) 00:23:13.
 Sir Terry Prachett, I’ll die before the endgame, says Terry Ptrachett in call for law reform to allow assisted suicide in UK (August 03 2009), Mail Online <www.dailymail.co.uk/news/article-1203622/>.
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 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) Article I.
 Above n 1.
 Immanuel Kant, Grounding for the Metaphysics of Morals 3rd ed  translated by James W. Ellington (Hackett, 1993) 43.
 Above n 10.
 Above n 10, 49.
 Timothy E Quill, Rebecca Dresser and Dan W Brock. ‘The Rule of Double Effect – a critique of its role in end-of-life decision making.’ (1997), 337 New England Journal of Medicine. 1769-1770.
 Consent to Medical Treatment & Palliative Care Act 1995 (SA) s 17(1).
 Above n 1, 107.
 Quentin Dempster, Do you have the right to die? (November 29 2011) The Drum<http://www.abc.net.au/news/2011-11-29/dempster-do-you-have-the-right-to-die/3702050>.
 Above n 20, 554.
 Margaret Otlowski, Voluntary Euthanasia and the Common Law (Clarendon Press, 1997) 245.
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 Above n 36, 90-91.
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 Merold Westphat, Hagel, Freedom and Modernity (University of New York Press, 1992) 158.
 Ronald Dworkin, Sovereign Virtue: the theory and practice of equality (1st Harvard University Press, 2001) 245.
 Glanville Williams, ‘Euthanasia legislation: a rejoinder to the non-religious objections’ (1958), 43 (1) Minnesota Law Review. As cited Daniel Hillyard and John Dombrink, Sin No More: from abortion to stem cells, understanding, law, and morality in America (New York University Press, 2007) 139.
 John Mills, On Liberty (Ticknor and Fields Boston, 1863) 23.
 Above n 20, 1.
 Consent to Medical Treatment & Palliative Care Act 1995 (SA) s17(1).
 Above n 22, 184.
 Rights of the Terminally Ill Act 1995 (NT).
 Euthanasia Laws Act 1997 (Cth).
 Voluntary Euthanasia Bill 2010 (WA).
 Medical Treatment Bill 2008 (VIC).
 Dying with Dignity Bill 2009 (TAS).
 Rights of Terminally ill Bill 2001 (NSW); Voluntary Euthanasia Trial Referendum Bill 2003 (NSW).
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 Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 (Netherlands); Act on Euthanasia 2002 (Belgium).
 Death with Dignity Act 1994 (Oreg) (Measure 16).
 Swiss Penal Code 1937 (SR 311.0), s 115.
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 Russel Ogden, Euthanasia, Assisted Suicide & AIDS (Perreault Goedman Publishing, 1994) 90.