Thursday, 7 June 2018

FATAL FLAWS: a must see doco on assisted suicide and euthanasia

Fatal Flaws is a newly released documentary by Kevin Dunn on euthanasia and assisted suicide laws.

As its title suggests the movie documents real flaws in these laws that pose fatal risks to the elderly, the disabled, the mentally ill and, indeed, all of us.

In a series of interviews with doctors and advocates on both sides of the issue Dunn’s conversational technique draws out the underlying viewpoint that characterises the pro and anti assisted suicide/euthanasia positions.

On the pro assisted suicide side it becomes clear that there are in fact two drivers which only partially overlap. Firstly there is the so-called principle of autonomy which affirms, effectively without limit, a person's right to demand and to be given assisted suicide or euthanasia for any reason at all.

This is the basis on which advocates and politicians in the Netherlands are now proposing euthanasia for completed life. This is a far cry from the original justification of intolerable suffering.

It also underlies the heartbreaking story of Aurelia Browers, a young Dutch woman who had struggled for many years with depression and suicidal thoughts. Dunn warms to her enthusiastic, seemingly bubbly personality and seeks to offer her hope. However, in the death affirming culture of the Netherlands, her “choice” to despair of life is affirmed and she was euthanased on 26 January 2018 by doctors from the End of Life Clinic.

The second principle is the view that many people would simply be better off dead. This principle is shown by Dunn's interviews to operate often independently from any requirement for an autonomous request for euthanasia.

In Canada, disabled young woman Candace Lewis's mother was encouraged – or rather bullied – by a doctor to agree to euthanasia for her daughter. Candace had to endure hearing a doctor talking to her mum about killing her.

In the Netherlands two middle aged women talk about attempts by doctors to kill their mothers without any request from the mothers. In one case the daughter was able to intervene in time and her mother lived long enough – another year – to see her second great grandchild. Sadly in the other case the mother was dead by the time the daughter got to the hospital. The mother had been told she was being given an injection to help her sleep but was in reality a lethal injection without request or consent.

With Victoria's assisted suicide and euthanasia law set to go into effect on 19 June 2019 and an inquiry into end of life choices set to report in Western Australia in August 2018 it would be timely to order a copy of Fatal Flaws and arrange a screening for your friends, church group or community group.

So much discussion on assisted suicide and euthanasia is shallow and ill-informed. Viewing Fatal Flaws will equip you to make an informed contribution to the debate.

Fatal Flaws can be ordered at: www.epcc.ca/fatal-flaws-legalizing-assisted-deathwww.epcc.ca/fatal-flaws-legal

Alex Schadenburg and the Euthanasia Prevention Coalition have done us all a great service in producing this much needed truth telling documentary.

There is no extra fee for a public screening. EPC is keen to get the doco seen by as many people across the world as possible.

A preview can be seen at:  www.fatalflawsfilm.comwww.fatalflawsfilm.com

Tuesday, 8 May 2018

Alfie Evans: Better off dead - The courts know best!

Reading the seven key court decisions in the tragic case of Alfie Evans is profoundly distressing. 

The mysterious illness that struck young Alfie and led to seizures and severe brain damage was never diagnosed. MRIs showed a profound deterioration of his brain that was, on all the evidence, irreversible.

In the circumstances, a choice to remove Alfie from a ventilator could be a legitimate choice to cease a treatment that may be imposing a burden on Alfie (there was some possibility he may be able to experience pain and discomfort) without providing any hope of recovery.

The real issue in this case was who was responsible for making decisions for Alfie.

The court proceedings were initiated by Alder Hey Children’s National Health Service Foundation Trust seeking an order from the Family Division of the High Court of England and Wales authorising the removal of the ventilator from Alfie with the expectation that he would die shortly afterwards.
Alfie’s parents, Tom and Kate, vigorously and adamantly opposed the proposal to withdraw the ventilator. Accepting that Alder Hey did not believe that it was in Alfie’s best interest to continue ventilation, Tom and Kate were working with Bambino Gesu Hospital in Rome to provide alternate care for Alfie.

At no stage did any court suggest that Tom and Kate were incompetent as parents or were likely do anything that would cause Alfie significant harm.

However, the series of court decisions which deprived Tom and Kate of any role in the decision making about Alfie’s medical treatment were ultimately based on two principles now enshrined in English law.

Firstly, “A child, unlike most adults, lacks the capacity to make decisions about future arrangements for themselves. Where there is a dispute, it is for the court to make a decision, as it would in respect of an adult without capacity. This is the gold standard by which most of these decisions are reached. It is an assessment of best interests that has been concluded to be perfectly clear.”[1] (underlining added)

Let’s be clear what this means. Whenever there is any dispute about any matter affecting a child that is brought before an English court, the court can simply disregard the wishes and views of the parents, even when all the evidence is that those parents are both loving and competent, and make its own unilateral decision as to the best interests of the child.

This judicial overreach goes well beyond the traditional and necessary role of the courts in stepping in to protect children from parental decisions or neglect that would cause significant harm to a child. The classic example is a court order for a child of Jehovah’s Witnesses to be a given a lifesaving blood transfusion despite the objection of the parents.

This approach to the best interests of children is profoundly flawed. It directly undermines the natural order in which parents instinctively love and care for their offspring, by subjecting their role as parents to the arbitrary interference of the courts. It assumes the courts have the wisdom  to determine infallibly the best interests of the child when, as every parent knows, this is not always clear.

Secondly, the court decisions were based on the utilitarian, quality of life, ethic that a person is “better off dead” than profoundly disabled.

Lord Justice MacFarlane, in the decision of the Court of Appeal that finally rejected Tom and Kate’s plea to let them transfer Alfie to the Bambino Gesu Hospital, opined:
if the welfare of the child is a primary consideration, when in relation to all the other factors in the case a judge has concluded that it is not in the best interests of that individual to carry on living and it is in the best interests of that individual to be allowed to die, one asks how can it possibly be disproportionate to hold that that person's right to go to a different hospital in a different country to access treatment.[2] (underlining added)

What gnostic, secret knowledge of life and death do judges possess that entitles them to decide that our children are better off dead?

Tom and Kate loved Alfie. They fought for him at great personal cost. English law let them down. It trampled on their role as parents and spat in their faces by telling them that the courts know best and that their Alfie was better off dead.

Alfie Evans rest in peace.

Alfie Evans court decisions
1.     Alder Hey Children's NHS Foundation Trust v Evans & Ors [2018] EWHC 818 (Fam) (11 April 2018) (View without highlighting) [141%] 
([2018] EWHC 818 (Fam); From England and Wales High Court (Family Division) Decisions; 11 KB)
2.     Alder Hey Children's NHS Foundation Trust v Evans & Anor [2018] EWHC 953 (Fam) (24 April 2018) (View without highlighting) [139%] 
([2018] EWHC 953 (Fam); From England and Wales High Court (Family Division) Decisions; 19 KB)
3.     Alder Hey Children's NHS Foundation Trust v Evans & Anor [2018] EWHC 308 (Fam) (20 February 2018) (View without highlighting) [129%] 
([2018] EWHC 308 (Fam); From England and Wales High Court (Family Division) Decisions; 77 KB)
4.     Evans & Anor v Alder Hey Children's NHS Foundation Trust & Ors [2018] EWCA Civ 805 (16 April 2018) (View without highlighting) [119%] 
([2018] EWCA Civ 805; From England and Wales Court of Appeal (Civil Division) Decisions; 49 KB)
5.     Evans & Anor v Alder Hey Children's NHS Foundation Trust & Anor [2018] EWCA Civ 984 (25 April 2018) (View without highlighting) [117%] 
([2018] EWCA Civ 984; From England and Wales Court of Appeal (Civil Division) Decisions; 44 KB)
6.     Evans v. the United Kingdom - 18770/18 [2018] ECHR 357 (23 April 2018) (View without highlighting) [47%] 
([2018] ECHR 357; From European Court of Human Rights; 6 KB)
7.     E (A Child) (Rev 1) [2018] EWCA Civ 550 (06 March 2018) (View without highlighting) [11%] 
([2018] EWCA Civ 550, [2018] WLR(D) 247; From England and Wales Court of Appeal (Civil Division) Decisions; 108 KB)




[1] Justice Hayden, Alder Hey Children's NHS Foundation Trust v Evans & Ors [2018] EWHC 818 (Fam) (11 April 2018) at 8 citing Lady Hale.

[2] Lord Justice Macfarlane, Evans & Anor v Alder Hey Children's NHS Foundation Trust & Anor (Rev 1) [2018] EWCA Civ 984 (25 April 2018) at 32.

Friday, 9 February 2018

Oregon releases 2017 statistics on assisted suicide


Oregon’s Dying With Dignity Act allows for medical practitioners to prescribe drugs for self-administration by a person to allow the person to end his or her life.

Oregon publishes annual reports on the operation of the Dying With Dignity Act.  A careful analysis of this data reveals significant issues with the practice of physician assisted suicide in Oregon.

The data for 2017 - the twentieth year of legal assisted suicide in Oregon - was released on 9 February 2018. 

The data shows that concern about "being a burden on family, friends/caregivers" (55.2%) is  a far more frequent reason for obtaining a lethal substance to commit suicide than is concern about pain control (21%).

It also shows that non-terminal illnesses such as diabetes and arthritis are being accepted as justifying assisted suicide.

Physical suffering not a major issue – “being a burden” is

The Oregon annual reports indicate that physical suffering is not a major issue for those requesting physician assisted suicide. 

Of the 1275 people who had died from ingesting a lethal dose of medication as of 19 January 2018 just over one in four (25.8%) mentioned “inadequate pain control or concern about it” as a consideration. Only 30 out of the 143 (21%) who died from ingesting a lethal dose of medication in 2017 mentioned a concern about pain control.

Earlier annual reports noted that “Patients discussing concern about inadequate pain control with their physicians were not necessarily experiencing pain.”

However, in 2017 more one out of two people (55.2%) who died after taking prescribed lethal medication cited concerns about being a “Burden on family, friends/caregivers” as a reason for the request.

Physician assisted suicide has much more to do with relieving other people of a “burden” than relieving unbearable pain. 

To facilitate and fund euthanasia and assisted suicide of persons simply because feel they are a burden on family, friends or caregivers sends a cruel message to the elderly, disabled or chronically ill who may need the care and support of others in order to function in daily life. It implies that only the strong and fully independent have the right to live.

Mental health: No adequate screening

Research by Linda Ganzini has established that one in six people who died under Oregon’s law had clinical depression.

Depression is supposed to be screened for under the Act.  However, in 2017 only 5 out of 143 people (3.5%) who died under the Oregon law were referred by the prescribing doctor for a psychiatric evaluation before writing a script for a lethal substance.

In 2011 Dr. Charles J. Bentz of the Division of General Medicine and Geriatrics at Oregon Health & Sciences University explained that Oregon's physician-assisted suicide law is not working well.  He cited the example of a 76-year-old patient he referred to a cancer specialist for evaluation and therapy.  The patient was a keen hiker and as he underwent therapy, he became depressed partly because he was less able to engage in hiking.

He expressed a wish for assisted suicide to the cancer specialist, who rather than making any effort to deal with the patient’s depression, proceeded to act on this request by asking Dr Bentz to be the second concurring physician to the patient’s request.

When Dr Bentz declined and proposed that instead the patient’s depression should be addressed the cancer specialist simply found a more compliant doctor for a second opinion.

Two weeks later the patient was dead from a lethal overdose prescribed under the Act.

Dr Bentz concludes “In most jurisdictions, suicidal ideation is interpreted as a cry for help.  In Oregon, the only help my patient got was a lethal prescription intended to kill him.  He urges other jurisdictions “Don't make Oregon's mistake.”

Financial considerations

Of those who died from ingesting a lethal dose of medication in 2017, more than one in twenty (5.6%) mentioned the “financial implications of treatment” as a consideration. While this percentage is relatively small it is appalling that since 1998 forty seven (47) Oregonians have died from a lethal prescription after expressing concerns about the financial implications of treatment.

In two notorious cases, those of Barbara Wagner and RandyStroup, the Oregon Health Plan informed a patient by letter that the particular cancer treatment recommended by their physicians was not covered by the Plan but that the cost of a lethal prescription to end their life would be covered.

 The misleading notion of a peaceful death

Euthanasia and assisted suicide proponents hold out the promise of a peaceful death by fast acting lethal substances.  The lethal drugs most likely to be preferred by medical practitioners have been secobarbital and pentobarbital.  As of 19 January 2018 secobarbital had been used in 58.6% of cases and pentobarbital in 30.3% of cases in Oregon. Pentobarbital is no longer available in the United States and the price of secobarbital has increased significantly so physicians have been experimenting with various lethal cocktails. In Oregon in 2017 nearly half (46.2%) of all deaths by ingesting a lethal dose involved a cocktail in which morphine sulfate was the main lethal substance.

These drugs do not always result in a swift and peaceful death.

In 2017 more than one in nine (11.63%) of those for whom information about the circumstances of their deaths is available either had difficulty ingesting or regurgitated the lethal dose, had seizures or other complications or regained consciousness and died subsequently from the underlying illness.

The interval from ingestion of lethal drugs to unconsciousness has been as long as four hours (in 2017) while the time from ingestion to death has been as 104 hours (4 days and 8 hours). One person in 2017 took 21 hours to die.

In 2005, “One patient became unconscious 25 minutes after ingestion, then regained consciousness 65 hours later. This person did not obtain a subsequent prescription, and died 14 days later of the underlying illness (17 days after ingesting the medication).

This patient was lumberjack David Prueitt who, after ingesting the prescribed barbiturates spent three days in a deep coma, then suddenly woke up, asking his wife “Honey, what the hell happened? Why am I not dead?” David survived for another 14 days before dying naturally from his cancer.

Since 2005 six other people have regained consciousness after ingesting the lethal medication.  

In 2010, two patients regained consciousness after ingesting medications.  One patient regained consciousness 88 hours after ingesting the medication, subsequently dying from underlying illness three months later.  The other patient regained consciousness within 24 hours, subsequently dying from underlying illness five days following ingestion.

In 2011, two patients regained consciousness after ingesting the medication. One of the patients very briefly regained consciousness after ingesting the prescribed medication and died from underlying illness about 30 hours later. The other patient regained consciousness approximately 14 hours after ingesting the medication and died from underlying illness about 38 hours later.”

In 2012one patient ingested the medication but regained consciousness before dying of underlying illness ...  The patient regained consciousness two days following ingestion, but remained minimally responsive and died six days following ingestion”.

In 2017one patient ingested the medication but regained consciousness before dying from the underlying illness”.

Increase in number of deaths

The number of deaths from ingesting lethal substances prescribed under Oregon’s Death With Dignity Act reached 143 in 2017 (up 3.6% from 2016, and  nearly triple the 49 deaths in 2007) continuing a steady rise since 1998, the first year of the Act’s operation when 16 people died under its provisions.

Faulty prognosis

The Death With Dignity Act provides that before prescribing a lethal substance a doctor must first determine whether a person has a “terminal disease”.  This is defined by section 127.800 (12) of the Oregon Revised Statute to mean “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months”.
In 2017 one person ingested lethal medication 603 days (nearly 20 months) after the initial request for the lethal prescription was made.  The longest duration between initial request and ingestion recorded is 1009 days (that is 2 years and 9 months). Evidently in these cases the prognosis was wildly inaccurate.

Dr Kenneth Stevens has written about his experience of how the prognosis of six months to live works in practice under Oregon’s law:

Oregon’s assisted-suicide law applies to patients predicted to have less than six months to live.  In 2000, I had a cancer patient named Jeanette Hall.  Another doctor had given her a terminal diagnosis of six months to a year to live.  This was based on her not being treated for cancer.

At our first meeting, Jeanette told me that she did not want to be treated, and that she wanted to opt for what our law allowed – to kill herself with a lethal dose of barbiturates.

I did not and do not believe in assisted suicide.  I informed her that her cancer was treatable and that her prospects were good.  But she wanted “the pills.” She had made up her mind, but she continued to see me.

On the third or fourth visit, I asked her about her family and learned that she had a son.  I asked her how he would feel if she went through with her plan.  Shortly after that, she agreed to be treated, and her cancer was cured.

Five years later she saw me in a restaurant and said, “Dr. Stevens, you saved my life!”
For her, the mere presence of legal assisted suicide had steered her to suicide.

Not a terminal illness

Oregon’s Death With Dignity Act requires that a person be certified by two physicians as suffering from a terminal illness before a lethal dose of medication can be lawfully prescribed.

The 2016 Annual Report listed conditions that have been accepted as meeting this definition including besides malignant neoplasms (i.e. cancers) and amyotrophic lateral sclerosis, heart disease, chronic lower respiratory disease, HIV/AIDS,  benign and uncertain neoplasms, other respiratory diseases, diseases of the nervous system (including multiple sclerosis, Parkinson’s disease and Huntington’s disease), musculoskeletal and connective tissue diseases, viral hepatitis, diabetes mellitus, cerebrovascular disease, and alcoholic liver disease.

Earlier annual reports specifically mention some diseases that would not normally be classified as a terminal illness:

         myelodyoplastic syndrome (not terminal unless it develops into acute myeloid leukemia which itself is not necessarily terminal) (2003 Annual Report, p. 19);
        Hepatitis C (2004 Annual Report , p. 21)
        digestive organ neoplasm of unknown behavior! (2004 Annual Report , p. 21)
        cardiomyopathy (may cause death but not necessarily terminal) (2006 Annual Report, p. 5)
        endocarditis (not usually considered a terminal illness, only 20% mortality rate during initial infection) (2006, Annual Report, p. 5). 
The 2017 annualreport reveals that there have been a total of 8 people for whom the “underlying illness” has been listed as “Endocrine/metabolic disease [e.g., diabetes]”. It also cites arthritis, arteritis, stenosis and sclerosis (none of which are usually terminal illnesses) as the underlying illness in at least one case each. 
This suggests that even the requirement that an illness be terminal is not being strictly applied.

It has been confirmed by theOregon Health Authority that if a person with a chronic illness, such as diabetes, foregoes treatment such as insulin injections, for any reason (including financial reasons or suicidal ideation) and thereby is likely to die within six months, the person becomes eligible for assisted suicide.

The Oregon Health Authority has also clarified that all information about a person’s underlying illness is simply based on reports by the physician who prescribes the lethal medication and a second consulting physician. There is no independent checking of the veracity of those reports.

A burden on the family: a recipe for elder abuse

The data from Oregon shows that in 2017 more one out of two (55.2%) people who died after taking prescribed lethal medication cited concerns about being a “Burden on family, friends/caregivers” as a reason for the request.

Does the concern about being a burden originate from the person or is it generated by subtle or not so subtle messages from family, friends and caregivers - including physicians - who find the person to be a burden or a nuisance or just taking too long to die?

Elder law expert Margaret Dore comments:

In both Washington and Oregon, the official reporting forms include a check-the-box question with seven possible "concerns" that contributed to the lethal dose request. These concerns include the patient's feeling that he was a "burden."
The prescribing doctor is instructed: "Please check 'yes,' 'no,' or 'don't know' depending on whether or not you believe that a concern contributed to the request."
 In other states, a person being described as a "burden" is a warning sign of abuse. For example, Sarah Scott of Idaho Adult Protection Services describes the following "warning sign": "Suspect behavior by the caregiver . . . [d]escribes the vulnerable adult as a burden or nuisance."

The recommendation is that when such "warning signs" exist, a report should be made to law enforcement and/or to the local adult protective services provider.
Washington and Oregon, by contrast, instruct its doctors to check a "burden" box. Washington and Oregon promote the idea that its citizens are burdens, which justifies the prescription of lethal drugs to kill them. Washington's and Oregon's Acts do not promote patient "control," but officially sanctioned abuse of vulnerable adults.

Short relationship with attending physicians

The Oregon statute specifies that lethal prescriptions only be written by a person’s “attending physician” who is defined as “the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease.”

The data indicates that in some cases doctors have had a relationship with the patient of less than one week’s duration and that in 2017, in half the cases the doctor-patient relationship was of 10 weeks duration or less.

A total of 92 physicians wrote 218 prescriptions during 2017 (129 prescriptions per physician).

Taken together this data suggests that there are some doctors in Oregon very willing to write prescriptions for lethal substances for patients they barely know. One doctor in 2017 was writing a prescription for a lethal dose more frequently than once a fortnight (29 times in a year).

Who administers the lethal medication?

In 2017 either the prescribing physician (16.78%) or another healthcare provider (16.78%) was known to be present at the time the lethal medication was ingested. For the remaining two out of three (66.43%) people there was no physician or other healthcare provider known to be present at the time of ingestion.

In other words for two out of three cases there is no independent evidence that the person took the lethal medication voluntarily. It may well have been administered to them by a family member or other person under duress, surreptitiously or violently. We can never know.

Increase in suicide rate

Proponents have claimed that legalising physician assisted suicide would actually prevent, or at least delay, suicides by giving those faced with a terminal illness an assurance that the means for obtaining  peaceful death was legally available. However, a study of comparative rates of suicide in US states found that for the states, like Oregon and Washington, which had legalised physician assisted suicide there is an increase in the overall suicide rate of 6.3% compared to all other states and of the suicide rate of those aged 65 and over of 14.5%. There is no reduction in either the rate of non-assisted suicides or in the mean age of suicide.



Tuesday, 4 July 2017

Latest euthanasia statistics from the Netherlands

Every five years Statistics Netherlands publishes data on deaths by “medical end-of-life decision”.
The latest data reports on all deaths in the Netherlands in 2015.[1]

In that year there were 7254 deaths caused intentionally by lethal medication – 6672 deaths by euthanasia with a request; 431 deaths by euthanasia with no explicit request; and 150 deaths by assisted suicide.

This represents nearly 1 in 20 (4.93%) of all deaths in the Netherlands.

More than 1 in 10 (10.5%) of all deaths (other than sudden and expected deaths) of 17-65 year olds in the Netherlands are caused intentionally by euthanasia or assisted suicide.

More than 1 in 200 (0.52%) of all deaths (other than sudden and expected deaths) of 17-65 year olds in the Netherlands are caused intentionally by euthanasia without an explicit request from the person being killed.

There is a significant discrepancy (1306) between the number of cases of euthanasia with request and assisted suicide reported by Statistics Netherlands – 6822 – and the number of such cases reported (as required by law) to the Euthanasia Review Committees – 5516.[2]  This suggests that in nearly 1 in 5 (19.1%) cases where a doctor administers euthanasia with a request or prescribes lethal medication for assisted suicide there is a failure to comply with the law requiring such acts to be reported.

If the additional 431 cases of euthanasia with no explicit request are included then nearly 1 in 4 (23.96%) of cases of explicit killing by euthanasia or assisted suicide are nor reported.

It is extraordinary that Andrew Denton can keep a straight face when he claims that the Netherlands is a model of transparency in euthanasia practice that can be confidently taken as evidence that legalising euthanasia or assisted suicide can be done safely – but I guess he is a comedian by profession.

I found nothing ‘slippery’ or underhanded about what they were doing. The systems in Belgium and the Netherlands are based on full and transparent disclosure – where every case is reported and reviewed by peer committees, aligned with the coroner’s office, and with the power to report doctors to state prosecutors for any breaches.[3]

Legalising euthanasia and assisted suicide empowers doctors to kill their patients. In 2015 in the Netherlands some 431 patients were killed by doctors who clearly felt empowered to do so despite there being no explicit request from the patient and no legal basis for their deadly action.

Wednesday, 11 January 2017

Nitschke now promoting illegal drug exports

Exit International, the international suicide cult established and run by former medical practitioner Phillip Nitschke, is now promoting recourse to Energy Control, which operates a drug testing laboratory in Spain, for quantitative testing of the lethal drug Nembutal (sodium pentobarbital).

Energy Control is a Spanish organisation promoting a harm reduction approach to recreational drug use. It offers an international drug testing service for substances including cocaine, heroin and ice. Its philosophy is supposedly to support the responsible use of drugs such as these.


The drug testing service costs 60 euros per sample or 80 euros to receive full documentation of the tests. After making the payment a confirmation code is received.

The instructions for submitting samples for testing are as follows:

Put each sample with its “code to send sample” in an envelope and send to this address:

Energy Control
C/ Independència 384, bajos
08041-Barcelona (SPAIN)
You can send several samples together in the same envelope, just make sure each of them is correctly labeled with its own code, so we can identify them when they arrive.
40-50 mg is enough, except for pills and blotters which should be a whole one. It’s recommended to send the samples in a folded paper or zip bag rather than in a capsule. The tablets, blotters and microdots should be wrapped to prevent rupture and spillage.

By entering into the business of testing a lethal drug precisely for its purity and effectiveness in causing death, Energy Control is moving out of its alleged business of “harm reduction” and into the business of ensuring the ultimate harm of death. Energy Control of course has no means of knowing whether a lethal dose of sodium pentobarbital which has been sample tested at its laboratory will be used to commit suicide, perhaps by a depressed teenager, or indeed for the murder of an elderly relative or a relative with dementia.

The export of any amount of a prohibited substance such as sodium pentobarbital without the relevant license is an offence under Section8 of the Export Control Act 1982 which is “punishable on conviction by imprisonment for a period not exceeding 5 years.”


By encouraging his cult followers now not only to illegally and criminally import the death drug sodium pentobarbital but also to illegally and criminally export it at the risk of 5 years imprisonment, death cult leader Nitschke is once again demonstrating his cavalier recklessness for the wellbeing of his followers.

He needs to be stopped before the corpses of his followers pile any higher.

Sunday, 20 November 2016

A foetal homicide law in Western Australia?

In a joint media release dated 11 September 2016 from the Attorney General of Western Australia, the Hon Michael Mischin and the Minister for Police, the Hon Liza Harvey on the introduction of the Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 the introductory bullet points included a reference to “Up to 20 years jail for intentional foetal homicide”.

The Restraining Orders and Related Legislation Amendment (Family Violence) Bill 2016 passed its third reading in the Legislative Assembly of Western Australia on 17 November 2016 having passed in the Legislative Council on 15 November 2016.


Bodily harm to an unborn child


The Bill contained an ancillary amendment to the Criminal Code of Western Australia which inserted a new provision into section 1 which addresses bodily harm to an unborn child, grievous bodily harm to the woman’s unborn child and causing the loss of a woman’s pregnancy.

The new provision reads as follows:

 In this Code, unless the context otherwise indicates —

(a)   a reference to causing or doing bodily harm to a person includes, if the person is a pregnant woman, a reference to causing or doing bodily harm to the woman’s unborn child; and

(b)   a reference to intending to cause or intending to do bodily harm to a person includes, if the person is a pregnant woman, a reference to intending to cause or intending to do bodily harm to the woman’s unborn child; and

(c)    a reference to causing or doing grievous bodily harm to a person includes, if the person is a pregnant woman —

(i)                  a reference to causing or doing grievous bodily harm to the woman’s unborn child; and
(ii)                a reference to causing the loss of the woman’s pregnancy; and

(d) a reference to intending to cause or intending to do grievous bodily harm to a person includes, if the person is a pregnant woman —

(i) a reference to intending to cause or intending to do grievous bodily harm to the woman’s unborn child; and

(ii) a reference to intending to cause the loss of the woman’s pregnancy.

This is a significant step forward in recognising in the criminal law of Western Australia that an assault on a pregnant woman that causes the death of an unborn child, or other bodily harm to the child, regardless of any other harm occasioned to the woman herself should be punishable by law.

Falling short of a true foetal homicide law

However, the new provision falls short of a clear offence of “foetal homicide” which would require intentional unlawful acts leading to the death of an unborn child to be punished with the same penalty as other homicides, namely life imprisonment.

Nonetheless the Criminal Code of Western Australia now clearly recognises that it is a crime to “cause or do bodily harm to an unborn child” or “to intend to cause or to do bodily harm to an unborn child”.

“Bodily harm” is defined in Section 1 of the Code as “any bodily injury which interferes with health or comfort”.

Furthermore the Code recognises that it is an even more serious crime to “cause or do grievous bodily harm to an unborn child” or to “intend to cause or do grievous bodily harm to an unborn child”.

“Grievous bodily harm” is defined in Section 1 of the Code as “any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health”.

Finally the Code explicitly makes it an offence to unlawfully “cause the loss of a woman’s pregnancy”, that is to say, the death of an unborn child.

It is somewhat unsatisfactory to treat these offences, by a kind of legal fiction, as a species of bodily harm or grievous bodily harm to the mother of the unborn child rather than as, what they are in reality, direct harms to the unborn child as a separate individual human being.

An inherent tension in the law on the status of the unborn child: disposable or protected?

Nonetheless these new provisions are to be welcomed for two reasons:

Firstly, the provisions go some way towards a just recognition of the real harm done when the life of an unborn child is taken by an unlawful act, such as an assault on a pregnant woman.

Secondly, the provisions introduce a creative tension into the law of Western Australia which now, on the one hand treats acts intentionally causing the death of an unborn child – at any stage of pregnancy – as a serious crime while on the other hand, under Section 334 of the Health Act 1911 making it lawful for a medical practitioner to intentionally cause the death of an unborn child, subject to specified conditions, at any stage of pregnancy.

While these laws can exist side by side in formal law, the inherent contradiction between them can be pointed to by those who see it as self-evident that the very same unborn child can’t be rightly treated as disposable at will in one set of circumstances and worthy of full legal protection in another.


Hon Nick Goiran MLC: A champion for the unborn child

The Hon Nick Goiran MLC has worked persistently over the past few years to persuade the Barnett government to introduce a clear foetal homicide provision to the criminal law. 

While he is naturally disappointed that earlier promises to do so have not been fulfilled, he is to be congratulated on his vital contribution in achieving even this more modest step in the direction of greater justice for children who are killed before birth.

An extract from his second reading speech on the Bill, delivered in the Legislative Council on 15 November 2016 follows below.

(Dr Graham Jacobs MLA is also to be congratulated for addressing this issue forthrightly in the Legislative Assembly on 17 November 2016. Mr Peter Abetz concurred with his remarks.)

I remind members of the event that first led to our consideration of this provision, which is more commonly referred to as the foetal homicide law in Western Australia.

In October 2009, Matthew Silvestro was driving dangerously in a Nissan Pulsar and his heavily pregnant girlfriend, Vanessa De Bari, was in the passenger seat, and their two-year-old son was in the back seat. He turned the car into the path of a Jeep on Wanneroo Road in Woodridge, causing a collision that resulted in severe injuries to Vanessa and the tragic death of her unborn child. Fortunately, the toddler survived. Vanessa spent eight and a half months recuperating in hospital, learning to walk again, and she has permanent brain damage from the collision. The clear injustice in the Silvestro case with regard to this person who had a history of domestic violence offences and had seven restraining orders against him by six different partners is that he received only an $8 000 fine for dangerous driving occasioning grievous bodily harm. This was because currently under Western Australian law no penalty exists for the harm or death of an unborn child as a result of an unlawful assault or dangerous driving.

The former Attorney General, Hon Christian Porter, was rightly outraged by this loophole and the inadequate penalty and he announced plans to strengthen and clarify Western Australia’s foetal homicide laws by creating a new offence of causing death or grievous bodily harm to an unborn child through an unlawful assault on its mother. This offence, he stated, based on one in operation in Queensland, would carry a maximum penalty of life imprisonment. In regard to dangerous driving offences that cause the death of an unborn child, such as in the case of the death of Vanessa De Bari’s unborn child, the then Attorney General announced that this would be dealt with in the District Court and carry a maximum period of imprisonment of 20 years. Additionally, when there was a history of domestic violence against the mother by the offender prior to them harming or causing the death of an unborn child, the offender would face a presumption of imprisonment.

I need to draw to the attention of members of this house that those intentions, as I understand, have not been realised through the inclusion of clause 97 in this bill. It will not achieve what shadow Attorney General John Quigley said at the time, which was that any unlawful act that caused the loss of a child, even if it caused no other injuries to the mother, should attract a charge of grievous bodily harm and be defined as being in aggravated circumstances so that it will attract the higher maximum penalty. No clause in this bill attracts a higher maximum penalty for the death or harm of an unborn child when caused by a person with a history of domestic violence, or by upgrading the grievous bodily harm to being in aggravated circumstances. For the sake of clarity, clause 97 will amend section 1(4) of the Criminal Code by inserting as bodily harm or grievous bodily doing harm to a pregnant woman’s unborn child. This provides recognition of the harm or death of the unborn child as bodily harm or grievous bodily harm to the pregnant woman, and in some circumstances this may increase the penalty. Even though this Restraining Orders and Related Legislation Amendment (Family Violence) Bill achieves something meaningful for pregnant women who suffer the tragic loss of an unborn child through an unlawful assault or dangerous driving, it does not achieve what was intended following the clear injustice suffered by Vanessa De Bari and her unborn child.

Whilst I acknowledge that this amendment to the Criminal Code is a step in the right direction, I believe that consideration needs to be given to honouring the original intent of this reform by providing greater clarity to Western Australia’s foetal homicide laws by stating in law the reality of what has occurred and providing an appropriate penalty. Would any member of this house dispute the medical evidence that Vanessa De Bari’s unborn child was killed as a result of this car crash? I very much doubt it. We use the phrase “killing an unborn child” because, simply stated, that is what has occurred. That is the fact of the matter, yet out of fear of contradicting other laws in Western Australia, we deny the facts and call the killing of an unborn child grievous bodily harm to the mother. The law has a compounding effect.

It began in 1913 when the Western Australian Parliament passed the Criminal Code, which states in section 269 that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not and whether it has independent circulation or not and whether the naval string is severed or not. Perhaps in the past, before ultrasound technology, it was difficult to confirm the death of a child in utero, and, without confirmation, it was perhaps impossible to prove cause and effect. That is understandable. However, in 2016 a woman can have an ultrasound in the morning showing a moving, unborn child sucking its thumb, and the woman could then experience an assault to her womb, and the medical team could quickly assess the effect on the unborn child, thus placing beyond reasonable doubt that the assault caused the death of the unborn child. A post-mortem examination could further confirm these things. There was perhaps once an issue of cause and effect that led to the creation of section 269.


However, in 2016 we can understand and even prove that an unborn child is capable of being killed. Indeed, I might say that when a martial arts expert kicks the womb of his pregnant girlfriend with the intention of harming the unborn child, as occurred in Queensland in 1996, and the unborn child dies as a result, is this not killing the unborn child? Would the woman not grieve the death of her unborn child? According to our proposed amendment, her grief is misplaced and her grief should be directed towards the grievous bodily harm she has suffered. I am entirely uncomfortable with that notion. The grievous bodily harm she suffered would be of minimal significance to her compared to the loss of her unborn child. Yet our proposed amendment provides no greater significance to her own harm and no separate recognition of the death of the child that once lived within her. What might be of interest to members is that the Queensland Parliament recognised this misdirected justice and changed the law as a result. Twenty years ago, its state’s Criminal Code was amended to recognise that a child that is capable of being born alive is also capable of being killed, and the penalty for intentionally killing an unborn child is the same as murder—imprisonment for life. That, of course, is what the former Attorney General meant when he referred to basing our foetal homicide laws on Queensland’s law. However, in going this far, he would have had to recognise, and he did, the elephant in the room, which is legal abortion; yet he justified that foetal homicide laws could co-exist with legal abortion by stating that the proposed legislation would be drafted to require an unlawful act to be done to the mother before any penalty could apply. Obviously, in Western Australia, performing an abortion within the defined parameters of the law is not an unlawful act, and hence would not be affected by this new offence. I hasten to add that I am not attempting to ignite a debate about the right of women to have an abortion. 

I am simply attempting to draw to members’ intention the original intention of this law reform and to ask that we remain true to that intent to afford women who experience the tragic loss of a child in utero the dignity they deserve by acknowledging the gravity and the reality of the crime that occurred, that being the killing of her unborn child.