Doctor of Juridical Science / This thesis challenges a number of claims that are made in the context of the euthanasia debate: that there is only one version of the good death; that rights discourse is the most appropriate vehicle by which to secure legal recognition of a right to die; that the Netherlands is either a model for reform or the epitome of a slippery slope in its regulation of euthanasia; and that a key argument in the euthanasia debate, the sanctity of life doctrine, is a fixed, immutable concept. In this thesis I use process sociology, developed by Norbert Elias, in order to capture changing sensibilities toward death and dying in the common law jurisdictions (Australia, England, the United States of America, Canada and New Zealand) and in the Netherlands. At the same time I analyse changing attitudes among key groups whose work impacts upon the euthanasia debate namely, parliamentarians, law reform bodies, the judiciary and medical associations. My aim in adopting this approach is threefold. First of all, to examine evolving attitudes to death and dying in order to determine whether the institutions of law and medicine are responding in an adequate manner to changing sensibilities in the common law countries and in the Netherlands. Secondly, to highlight shifting balances of power within the euthanasia debate. Thirdly, to assess whether the various options for reform that I discuss are workable or not. In this thesis I show that there appears to be a sensibility of support in the common law countries for euthanasia to be legally available when an adult is terminally ill, is experiencing pain that he or she cannot bear and has expressed a wish to die (the typical euthanasia scenario). However, the situation is far from clear cut. The methods adopted by one of the ways of measuring sensibilities, opinion polls, suggest that sensibilities may not always be well-informed. Further, attitudes within and between key groups are not uniform or settled. In the context of this unsettled state of affairs, I show that responses to changing sensibilities from law and medicine in the common law jurisdictions are far from satisfactory. So far as legal responses are concerned, case law outcomes in right to die applications suggest a lack of flexibility. Outcomes in prosecutions following active voluntary euthanasia or assisted suicide reveal a non-application of established legal principles and suggest that the courts do not focus, squarely, upon the real issues at stake in the euthanasia debate. Medical responses are similarly less than optimal due to a tendency to de-emphasise existential (emotional) pain which, research shows, is the prime motivating factor in requests to be assisted to die sooner. Responses to changing sensibilities to death and dying in the Netherlands are also unsatisfactory because of the disorganised manner in which euthanasia was legalised and because regulation is inadequate. I come to the conclusion that there are three ways in which we could possibly resolve these problems and increase the flexibility of responses to changing sensibilities toward death and dying. They are as follows: by legalising euthanasia; by permitting a defence of necessity; or, by liberalising the use of terminal sedation in end-of-life care. Of these three, I conclude, in light of shifting sensibilities and overall negative attitudes among key groups to euthanasia, that the last is the most appropriate option at the present time. In closing, I address some of the larger issues at stake in the euthanasia debate. In particular, I deal with the effect that changing sensibilities toward the process of dying have had upon human social life, leading to the problematic situation that Elias referred to as the ‘loneliness of the dying’.
| Identifer | oai:union.ndltd.org:ADTP/283492 |
| Date | January 2008 |
| Creators | Hiley, Victoria |
| Publisher | University of Sydney., Law |
| Source Sets | Australiasian Digital Theses Program |
| Detected Language | English |
| Rights | The author retains copyright of this thesis., http://www.library.usyd.edu.au/copyright.html |
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