Damned if I Do

by Philip Nitschke

  In Caren and Shirley’s case, the Crown suggested a ­similar motive, and the showman Tedeschi was just the person to do it. He played to the jury and his expert witnesses did likewise. The defence lawyers were likeable enough, but they were no match for the Crown. As Tedeschi painted Caren as evil and manipulative, her barrister, Michael Williams, QC stayed silent. The prosecutor wove a story about the type of relationship Graeme had with Shirley; about the type of friend Caren was to Graeme; and about the problematic fact that his will had all but left out his daughters from a ­previous marriage (Graeme had said they already got their fair share after their mother’s death some years earlier). But, by the end of the evidence, Tedeschi had managed to persuade the jury to his way of thinking. Shirley was found guilty of ­manslaughter. Caren was found guilty of being an accessory.

  During what must have been a momentary lapse of ­concentration on Tedeschi’s part, bail was granted ­unopposed, with sentencing to take place in six weeks’ time. While the two women were now estranged, an added complication was the attitude and behaviour of Graeme’s two forty-something daughters. These women were no friends of their father’s second wife. In court, they sat not in the public ­gallery, but with the prosecution legal team where they clearly felt most comfortable. As the likely beneficiaries of Graeme’s ­multi-million-dollar estate, they had much riding on a guilty verdict.

  Some media reports painted the whole trial as being about death, sex and money: that Shirley wanted Graeme dead so she could inherit his millions. But that begs the question: Who are you supposed to leave your worldly goods to if not the person who loves you, and who you love, the most in the world? It should come as no surprise to anyone that this special person will also be the person who helps you die.

  I saw Caren fairly regularly over the intervening weeks before the sentencing date. I was often in Sydney and we’d have coffee, just as we had always done, at the Waratah Street tennis courts in Rushcutters Bay. At seventy-five, she was clever, brave and always enchanting. She was worried; she felt the stress of the trial had brought her cancer back. She was in increasing pain, and said life was an ordeal and that she craved a bit of peace. Of course what Caren was really saying, and she spelled it out clearly to me, was that she didn’t want to die in jail. Who could blame her? Neither of us trusted Justice Roderick Howie to be fair; at times I thought he’d acted like a petulant child in his courtroom. Jail did seem the most likely outcome.

  One day, as the sentencing date drew near, Caren said to me, ‘I’m going to end my life,’ and made a reference to never wanting to be handcuffed again. She knew we had a planned conference on dementia and the law in Sydney the following week to coincide with the sentencing, and asked if I would read out a statement from her—in fact, her suicide note—at that gathering. It was her choice and I knew she was serious. On Thursday, 21 September 2008, just days after her seventy-sixth birthday, Caren died peacefully and alone at her home in Lane Cove, drinking the Nembutal from the other bottle she had brought back from Mexico. Her ­daughter, Kate, had not known of her plans, and was heartbroken to lose her mother this way.

  In retrospect, Caren was lucky to have died on her own terms, if not in her own time. Justice Howie’s lengthy judgment vilified her, depicting her as the evil prime mover in Graeme’s death. He also accused her of cowardice, for ending her life and for not facing up to her sentence. This may have worked in Shirley’s favour though, and Howie seemed to soften when he moved on to her. He described her as a victim of others; meaning Caren, and, by extension, me. While his comments about Exit were unflattering, they were nothing like his denunciation of Caren. He sentenced Shirley to two years of periodic detention, with weekends in gaol in Wollongong.

  Many people, particularly Graeme’s daughters, saw this as an inappropriately lenient sentence. I can only ­imagine their disappointment when in October 2010, Shirley’s appeal was upheld in the Court of Appeal and her conviction quashed. This court held that Justice Howie had erred in his ­instructions to the jury.

  THIRTEEN

  Adversaries and allies

  I wonder about your friends that are not.

  Rodriguez, ‘I Wonder’

  I’ve had a number of abusive letters, the odd death threat and even a bomb scare. One of the most notable occurred when I was a torchbearer in the 2000 Sydney Olympics and I needed a police escort as I did my section, jogging along McMillans Road in Darwin; a death threat had been received, the only one in the torch’s long journey to Sydney. Incidents like this should be balanced with the overwhelmingly nice things that people, often total strangers, say to me in the street. But it’s the nasty things that tend to stay with you. On rare occasions, I’ve had people getting up at ­meetings or in the street, yelling things like ‘I’ll kill you, you bastard!’ In the corridors of Federal Parliament MP Bill Heffernan once shouted, ‘Nitschke, you murderer!’ I can’t remember my reply but it must have made an impression, as some years later, when we again ran into each other in the Parliament House café, he waved me over to his table, only to tell me how he admired my tenacity.

  Sometimes, public sentiment borders on the ­comical. Several times a year I receive envelopes with a selection of photo­copied pages from the Bible, or some other religious text, threatening hell and damnation if I don’t change my ways. These letters are almost inevitably anonymous and are often just addressed to ‘Philip Nitschke Darwin’—but they seem to find their way to my PO box. But this is relatively easy to deal with; all sorts of public figures have to put up with total strangers having strong opinions about them. People can think what they like and I try to let the insults, when they come, wash over me.

  I am fine, too, at dealing with those who clearly hate me. I’ve taken some of the more threatening letters I’ve received to the police—curious about how they will respond. They ­usually ask, ‘Is it signed?’ When I say, ‘No,’ the advice is, ‘Well, just forget it.’ I’m lucky I live in Australia. We don’t, I like to think, (often) kill abortion doctors here.

  Because of the nature of my work, there are always going to be incidents that upset. One recent example involved my mother, who is ninety-three and in an Adelaide nursing home. She was getting out of bed one morning, just as the GP, who had a scheduled visit, entered her room. He asked how she was and her dismissive reply was, ‘I’m bloody awful, I’d rather be dead.’ The next day she was told a ­psychiatric review was needed and the psychiatrist, his intern and a ­student duly arrived. Among other things, the psychiatrist asked her about her son: if she’d ever discussed euthanasia with me.

  ‘Of course I have,’ she said.

  Then he asked if I’d ever advised her about specific ways of ending her life—a question she thought was ­inappropriate, and none of his business.

  I was annoyed when I heard about this. As luck would have it, the psychiatric team did a follow-up visit on a morning that I happened to be with her. I asked about his earlier questioning of my mother, but this prompted a quick denial that the conversation had ever taken place. My mother was amazed, and said so. ‘Listen. You did ask that,’ she said to him, ‘I may be old, but I’m not stupid.’

  More troubling has been the hostility towards me from organisations as disparate as the AMA and the Australian Christian lobby, and from within the voluntary euthanasia movement itself, both here and overseas.

  Many of the problems started with the announcement in 1997 of my intention to run workshops that would teach elderly Australians how to end their lives. While my opponents called for the police to act, claiming that such workshops would breach assisted suicide laws, the police held back, knowing that this area of law was grey, making a successful prosecution difficult. With the police all but silent, the complaints were then taken to the Medical Boards, urging them to remove my medical registration. Surely, they said, I was breaking my Hippocratic Oath in informing the elderly and seriously ill how they could kill themselves. Although the Oat
h was never administered to graduating doctors at Sydney Medical School, it was clear what my opponent’s strategy was. After failing to get the police involved or criminal charges laid, the next best thing would be to have me deregistered.

  By the end of 1997, I was seeing dying patients across the nation, and took out medical registration in every jurisdiction. But the complaints from religious lobby groups ­followed and investigations in several states were commenced. In Victoria, in 1997, the medical board sent me a formal letter asking me to show reason why I should not be disciplined, which led me to consult Robert Richter QC, who had occasionally given me legal advice. I remember Robert saying to me, ‘Don’t treat this too lightly, and don’t hand over your medical registration without a fight, or you’ll live to regret it.’ The letter he drafted satisfied the board and the threat was averted, but his advice stuck in my mind. Similar incidents followed in Western Australia and South Australia, and each time I had to run around double-checking that my registration was in order, while arguing that the provision of good suicide advice is entirely consistent with good medical practice. I’ve been successful, and on each occasion been able to separate the running of my workshops and my ­medical registration. Indeed, my medical insurer, MIGA, makes a clear distinction between my medical practice and my voluntary euthanasia activities, providing no cover for the latter. Something they’ve done of course to protect themselves, but it is a helpful distinction for me to have on the record.

  One good thing that Tony Abbott did as health minister was to amalgamate the various state registration systems, a reform that was long overdue. The stage has now changed and it is the new national body, the Australian Health Practitioners Regulatory Agency (AHPRA), that governs doctors. It is this body that is now involved in carrying out two separate long-running enquiries into my fitness to practise medicine.

  While national registration may have provided some protection in Australia, this was not the case when we moved the workshop program offshore. The New Zealand Medical Registration Board, prompted by the quaintly named Society for the Protection of Community Values, wrote to me in 2001 stating that I would not be allowed to ­undertake a public lecture tour of that country because I was ‘not licensed in New Zealand to practise medicine’! Weird. Since when is public speaking ‘practising medicine’? Lawyers were involved and the tour finally went ahead, but the threat of action remains.

  * * *

  I dealt extensively with my views on the opposition to ­voluntary euthanasia from Christian churches in Killing Me Softly. While I’m well aware that Christianity is not one unified faith—indeed, in Exit International, there are believers of all sorts, from Catholics to Quakers, and more than a few survivors of the Holocaust—it does provide more than its fair share of my adversaries. The Australian Christian Lobby, Right to Life Australia, and the Democratic Labor Party have all rallied their troops to attack both myself and my work. The efforts of the faceless men and women of these organisations are quite insidious. They claim the moral authority of god while working the corridors of power in the State and Federal Parliaments of the nation to push their conservative moral agenda. More recently, they’ve even taken to ­lobbying statutory authorities, such as AHPRA, in their attempt to silence me and close down Exit.

  Such enemies are to be expected; there is much at stake in the voluntary euthanasia debate. But it is my adversaries from within the voluntary euthanasia movement itself who often cause the greatest damage and stress. One such person was retired Queensland motel owner John Edge. His attempt to blackmail me following the much-lauded ‘Peanut Project’, where a group of elderly Exit members set out to synthesise their own end-of-life drugs, their own ‘peaceful pill’, showed me the ugly side of jealousy. It also showed how dangerous it can be to recruit others when planning an illegal event. Today, Exit has learnt from the experience. Do it yourself and you probably won’t get caught; collaborate with others at your peril.

  John became involved in Exit in the time leading up to the death of Nancy Crick. Nancy wanted to know whether having someone with you when you suicide could lead to them being charged with assisting. She tested the law by drinking Nembutal at her home while surrounded by twenty-one family members and friends. John had been ­instrumental in helping Nancy get her Nembutal and was one of those with her when she died. After watching her ­peaceful ­passing, he thought that there was no better way to go. He ­especially liked the idea of making his own drugs; not for today or tomorrow, but to have in the cupboard, just in case. In many late-night talks, the seed was planted. What if a group of oldies got together to make Nembutal? The organic chemistry couldn’t be that hard, could it? After all, the German chemist Adolf Baeyer had first synthesised ­barbituric acid in his laboratory almost one hundred and fifty years earlier.

  Times have changed, though. Today’s plethora of back-yard drug labs and a heightened paranoia about terrorism have made it almost impossible for amateurs to acquire the equipment and chemicals needed for even the simplest synthesis. But this didn’t stop the members of the Peanut Project. For specialised glassware, they simply called on the services of a retired laboratory glass blower from within the Exit community. As more people started to find out about the ­project, offers of help flooded in. ‘You need a triple-arm flask? Sure, I’ll make you one.’ ‘You need metallic sodium? Let me get that for you. They use that in my son’s factory.’ ‘You need super-dry alcohol? No problem, I’ve got a mate who …’ and so it went, not to mention, ‘You need a remote farmhouse to set up the laboratory? Sure, come and use our weekender.’

  After a year’s careful planning, a dedicated group of twenty Exit members descended on the remote country home, in Adjungbilly, of former federal Attorney-General Kep Enderby for their big experiment. While the outcome was uncertain, it did seem possible that with the right conditions, this little group of amateur chemists might be able to pool their skills and produce their own peaceful pill.

  Accounts tell of an almost party-like atmosphere on the night, and the group did succeed in producing ­barbituric acid (subsequent lab tests proved this), but they fell short of producing the desired sodium pentobarbital or Nembutal, the prized euthanasia drug. To get technical for a moment, the critical molecular side-chain had refused to stick and the crystals had not formed, although everyone ­participating believed they had. What they didn’t know though, was that John had taken it upon himself, under the cover of darkness, to spike the mixture after discovering that the sediment was lacking. I remember when he first told me, and of my immediate concern. While the powder they’d all taken home might just be lethal if swallowed, a death as a result may be far from peaceful.

  From this point, John’s and my relationship rapidly deteriorated. He claimed that I had declared the project an Exit success (which I had thought it was), and accused me of duplicity. He wanted to tell the story, but in his way. After all, he said, you weren’t there. Eventually, I suggested we write up the story for Exit’s newsletter, Deliverance, and rang John from Sydney to seek his support. He said, ‘You’ll do that over my dead body. If you write anything, I’m going to the police, and you’re dead.’ It wasn’t an idle threat. I feared he had documents and records that could show my involvement in the planning part of the conspiracy to synthesise illegal drugs. I hung up and felt sick; we never spoke again.

  By this stage the Peanut Project had lost its appeal. It was simply too risky for any of the participants to keep the drugs they had made, and after Edge’s threat, too risky to carry out the necessary further chemical modification. As a result, all samples were collected and destroyed—a huge disappointment for everyone involved. It wasn’t part of the deal for those present to have their plans sabotaged and to find themselves facing considerable legal risk, because of one man’s ego. The last I heard of John was that he’d taken his life one night in a Gold Coast cemetery in 2010, using helium and a plastic bag, a method he had once scorned.

  While thi
s is just one case of what can go wrong when working alongside a colleague in the voluntary euthanasia movement, there are many other examples of people who I barely even know who have been the saboteurs. People who, like me, believe in having end of life choice, but who often have a radically different take on how to get it.

  The right-to-die movement is philosophically divided into two camps, with a few undecideds in between. At the crux of the split is a disagreement over whether the option of a peaceful death should be reserved for those who are ­terminally (or at least seriously) ill, or whether we are really talking about a fundamental human right, available to all who understand death (i.e. not children or those mentally impaired), whether sick or not. The role of the ­medical profession depends on which side of the divide you stand. Those who see voluntary euthanasia as an option restricted to the sick, invariably place the medical profession at centre stage. It is doctors who will decide if the person is sick enough to qualify; it is doctors who will prescribe the lethal drugs or administer the fatal injection. Those who would argue that a peaceful death is a fundamental matter of personal choice often see little point in involving a profession whose whole recorded history has focused on saving and prolonging life.

  I have found my own position changing. I entered the debate believing that the only way forward was for the passage of legislation such at the Northern Territory’s ROTI Act, which would allow only the terminally ill access to lawful help to die. And, as a doctor, I would be one of those chosen to judge the applicants, and ultimately to provide the necessary assistance. But even at that early stage, my beliefs were being challenged. It was Bob Dent who first made the point. ‘Why do I have to see a psychiatrist?’ he complained. ‘If I had the drugs, I could just take them when the time was right, no doctors or psychiatrists needed.’ He was of course right, and I felt guilty as I dragged him and three other terminally ill patients around Darwin seeing the doctors needed to sign their papers in order to use the Territory law. Why couldn’t he, I reasoned, have his own Nembutal locked in his cupboard to take if and when he wanted. After all, as a doctor I had access to the drug, and what gave me that right? Indeed shouldn’t all adults have access to that drug?