The Rights of the Terminally Ill Act 1995 (the ROTI Act) was in operation in the Northern Territory from 1 July 1996 until it was suppressed by the Commonwealth’s Euthanasia Laws Act 1997 on 27 March 1997.
During this nine month period four people were assisted to terminate their lives by Dr Philip Nitschke.
Case studies on these four deaths have been published. The principal author of this paper is Professor David Kissane, who is a consultant psychiatrist and professor of palliative medicine. Philip Nitschke is a co-author of the paper.
The case studies examine how the conditions required by the ROTI Act were met. Cases numbered 3, 4, 5 and 6 in this paper refer to those cases which ended with the person’s life being terminated with the assistance of Dr Philip Nitschke.
Only four people were killed under its provisions. Of these there is evidence in three cases (75%) of untreated depression or other mental health issues; in one case (25%) that the person was not terminally ill and in two cases (50%) that further treatment could have relieved their condition. In none of the four cases (0%) was there any evidence of uncontrolled pain.
Fatigue, frailty and depression
Kissane noted that “fatigue, frailty, depression and other symptoms” were the prominent concerns of those who received euthanasia. He observed that “palliative care facilities were underdeveloped in the Northern Territory, and patients in our study needed palliative care… There is a need to respond creatively to social isolation, and to treat actively all symptoms with early and skilled palliative care.”
From the case histories, it is apparent that cases 3 and 4 each had depressive symptoms.
In case 3, the patient had received “counselling and anti-depressant medication for several years”. He spoke of feeling sometimes so suicidal that “if he had a gun he would have used it”. He had outbursts in which he would “yell and scream, as intolerant as hell” and he “wept frequently”.
Neither the patient’s adult sons nor the members of the community palliative care team who were caring for him were told he was being assessed for euthanasia. “A psychiatrist from another state certified that no treatable clinical depression was present.”
In case 4, “the psychiatrist noted that the patient showed reduced reactivity to her surroundings, lowered mood, hopelessness, resignation about her future, and a desire to die. He judged her depression consistent with her medical condition, adding that side-effects of her antidepressant medication, dozepin, may limit further increase in dose.”
Kissane comments that “case 4 was receiving treatment for depression, but no consideration was given to the efficacy of dose, change of medication, or psychotherapeutic management.” While Dr Nitschke “judged this patient as unlikely to respond to further treatment”, Kissane, comments that “nonetheless, continued psychiatric care seemed warranted – a psychiatrist can have an active therapeutic role in ameliorating suffering rather than being used only as a gatekeeper to euthanasia”.
Further concerns are raised by the report on case 5. Dr Nitschke reported that “on this occasion the psychiatrist phoned within 20 min, saying that this case was straightforward”. This assessment took place on the day on which euthanasia was planned.
This case involved an elderly, unmarried man who had migrated from England and had no relatives in Australia. Dr Nitschke recalled “his sadness over the man’s loneliness and isolation as he administered euthanasia”. Dr Nitschke has since revealed in testimony to a Senate committee, that he personally paid for this psychiatric consultation and that it in fact took less than 20 minutes.
Not terminally ill
The ROTI Act provided (Section 4) that: “A patient who, in the course of a terminal illness, is experiencing pain, suffering and/or distress to an extent unacceptable to the patient, may request the patient’s medical practitioner to assist the patient to terminate the patient’s life.”
In case 4, there was no consensus that the person was terminally ill. The person was diagnosed with mycosis fungoides. “One oncologist gave the patient’s prognosis as 9 months, but a dermatologist and a local oncologist judged that she was not terminally ill. Other practitioners declined to give an opinion. In the end an orthopaedic surgeon certified that the ROTI provisions for terminal illness had been complied with.”
In case 3 the patient may have benefited from radiotherapy or strontium but neither of these was available in the Northern Territory.
In case 5, the patient had an obstruction and was clinically jaundiced. Kissane reports that “when questioned about options like stenting for obstructive jaundice or the management of bowel obstruction” Dr Nitschke “acknowledged limited experience, not having been involved in the care for the dying before becoming involved with the ROTI Act.”
This raises doubts as to whether the patient in this case – who was reported by Dr Nitschke to exhibit “indecisiveness” over a two month period about whether or not to request euthanasia – would still have done so if he had been given better symptomatic relief for the jaundice and obstruction.
“Severe Pain or Suffering”?
Section 7(1)(d) of the ROTI Act provided that “a medical practitioner may assist a patient to end his or her life” only if, among other conditions, “the illness is causing the patient severe pain or suffering”.
Kissane reports that pain “was not a prominent clinical issue in our study”. In case 3, “the patient took morphine for generalised bone pain.” For case 4, “pain was well controlled”. In case 5 the patient “complained of mild background pain incompletely relieved by medication”. In case 6, “regular analgesia was needed for abdominal pain”. In none of these four cases is there any evidence of severe pain that was not being adequately controlled.
Conclusion
The failed experiment in the Northern Territory, thankfully brought to an end by the decisive action of the Commonwealth Parliament, shows that apparently strict safeguards fail to ensure careful practice.
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