e-Deliverance A Peaceful Death is Everybody’s Right June/July Exit International 2008 Jury Says Guilty The murder/ assisted suicide trial of Exit minutiae of their private lives. While Caren’s members Caren Jenning and Shirley Justins friends, together with her daughter Kate, came was always going to be about Voluntary Eu- loyally to court every day to support her, the thanasia. humiliation of having the world pry into her ever move was not abated. From Senior Crown Prosecutor Mark Tede- schi’s opening address accusing Exit Director, Court rooms are rarely pleasant places and Dr Philip Nitschke, of being “hellbent” on Court 3 of the New South Wales Supreme helping 71 year old Graeme Wylie to die, to Court in King St Sydney is no different. A Justice Roderick renovated Francis Howie’s repeated Greenway build- warnings to the ing, the wooden jury to leave panelling, to- their emotions gether with crim- at the door, this son robed Judge landmark seven and black-robed week trial in the Counsel at the bar New South Wales table, served as Supreme Court a daily reminder marks a turning Shirley Justins and Caren Jenning outside the Sydney Supreme Court to those present point in the way the of the gravity of the law deals with the end-of-life choices debate. proceedings. For many of us, time seemed to stand still during those long weeks of the trial, After six weeks of evidence and four days of as witness followed witness to give evidence nervous waiting while the jury deliberated, at for and against the two accused women. approximately 2.30pm on Thursday 19 June, Amidst endless legal argument on matters of the 4 women and 8 man jury delivered the law and the admissibility of various pieces of verdicts of guilty of manslaughter of Graeme evidence, the trial progressed at a snail’s pace Wylie to Shirley Justins and guilty of acces- until its grisly conclusion on Thursday. sory before the fact of manslaughter to Caren Jenning, a friend of Graeme Wylie’s for over This month’s Deliverance has been delayed 30 years. because of the trial. Below is a summary of the proceedings so that the Exit community can The verdicts marked the end of a gruelling be aware of how events unfolded. and nail-biting seven weeks. The trial took This Edition • Jury Says Guilty - Page 1 an enormous personal • Caren Says ‘Thank You’ - Page 5 toll on both Shirley • Exitorial - Page 5 and Caren who sat • Exit Donation + Exit Shop Order Form - Page 6 • National Chapter News & Meeting Dates - Page 7-8 day after day in the • Dementia, VE & the Law - One Day Conference - Page 9 witness box as the • MMSE Test - Page 9 Crown Prosecutor • Bob Brown Private Member’s Bill - Page 10 • New VE Book on Justins - Jenning Trial - Page 10 went through the Jury Says Guilty (cont) The Jenning - Justins case began long before of Tasmania) were called to give evidence to the day of Graeme Wylie’s death on 22 March explain what Graeme had told them of why he 2006. A retired Qantas pilot, like many men of wanted to die. Both described conversations his generation, Graeme Wylie was headstrong with their brother about his wish to end his and independent. life.
Married twice previ- Yet, as with many ously, when Graeme cases that find them- met work colleague selves in the Supreme Shirley Justins, a Court, there were 19 year relationship many ‘other’ factors began. Protective of at play. Prominent Shirley this couple among these was spent almost two the issue of Graeme decades together en- Wylie’s will. While joying bushwalking, the media might kayaking and their Caren with her legal team, solicitor Sam Macedone (left) have chosen to report garden. However, and barrister Mike Williams QC Shirley Justins as a when Graeme was diagnosed with Alzheim- money-hungry third wife, what was less re- er’s disease in March 2003, the couple’s world ported was Graeme Wylie’s determination that changed. the adult daughters of his first marriage who had already received an ample financial payout Hobbies were put aside as they engaged in a after their own mother had died, and should revolving door of medical appointments, test- receive no more. Far from Shirley manipulat- ing and treatment. Given that there is no cure ing Graeme into changing his will, an equally for Alzheimer’s disease, Graeme Wylie knew convincing argument presented to the jury was his only out would be an early death. The that it was natural and normal for a partner of question he started asking was should that be 19 years to be the primary beneficiary of her sooner or later? partner’s estate.
Graeme Wylie had long as- Despite Graeme Wylie’s strong serted that a nursing home was belief in voluntary euthanasia not for him. He was said to be and his never-wavering convic- ‘devastated’ by his Alzheim- tion that his life was his choice, er’s diagnosis. Like many in our criminal justice system the same boat, Graeme Wylie deemed that there were too was certain that he wanted to many unanswered questions die before he lost the ability to surrounding the death of this make the decision for himself. man. Suicide was soon to become a regular theme in his conversa- The crux of the court case tions. became Graeme Wylie’s deci- sion-making ability. Did Mr An intensely private man, the Wylie have the mental capacity topic of taking his life before to make the decision to die on his condition deteriorated 22 March 2006? The court was became of such importance little interested in Mr Wylie’s to Graeme that he discussed Shirley Justins with her legal team, mental state in the six months solicitor Michael O’Brien & his views widely. To this end, Barrister Peter Bodor QC before he died. Rather, the his two sisters (both residents
2. Jury Says Guilty (cont)
When the trial began the evidence was largely circumstantial. All this changed on day 11 when Shirley Justins suddenly changed her plea to guilty for assisting in the suicide of Graeme Wylie. This decision by Shirley left Caren with little choice but to also change her plea and plead guilty to the importation of a border controlled drug (Nembutal). When the trial resumed after this pivotal moment, the new playing field was unrecognisable. Not only did the jury see two self-confessed liars sitting in the dock, but by the Crown refusing Exit members Rita Caldwell, Vince Phelan & Elizabeth Yates leaving to accept the change of pleas and left the origi- court after a day’s sitting nal charges of murder and accessory before the Crown’s case focused on the day of his death fact of murder stand. The situation suddenly and the short period prior to that time. At what looked a lot more serious. point did Mr Wylie become unable to make this decision for himself?
In R v Jenning and R v Justins, the Crown al- leged: a. Mr Wylie lacked the mental capacity to make a rational choice to suicide; b. Shirley Justins knew that he lacked the ca- pacity and if she didn’t know she should have made inquiries to find out; and c. Caren Jenning knew that Shirley Justins knew that her friend Graeme Wylie lacked the capacity to choose suicide. Philip Nitschke addressing the press after the verdict In law, the distinction between murder, man- A fourth charge levelled at Caren Jenning slaughter and assisted suicide hinged on the concerned the importation of Nembutal from question of Graeme Wylie’s capacity. If the Mexico. The same Nembutal that Caren gave jury found that Graeme Wylie had the capacity to Shirley to give to Graeme. The Nembutal to make the decision (to suicide) for himself, that Graeme Wylie drank and the Nembutal the charges against Caren and Shirley would that gave him the peaceful death he so desired. have been the relatively less serious charges of assisting a suicide.
If Mr Wylie lacked capacity but if Shirley Justins did not know that he did not have
Contact Us Exit International PO Box 37781 Darwin NT 0821 Australia ph 1300 10 EXIT (3948) fax 02-8905-9249 [email protected] Donate to Exit Exit relies on donations to fund its meetings/ workshops, private visits and R&D programs Please give generously. 3. Jury Says Guilty (cont) capacity, then the charge would be manslaugh- would have pro- ter for Shirley and accessory before the fact vided no protec- of manslaughter for Caren. If Graeme Wylie tion for Shirley lacked capacity, and Shirley Justins and Caren or Caren who Jenning knew that he lacked capacity, the chose to assist charges would have been murder and accesso- him. Advance ry before the fact of murder respectively. Ac- Directives are cording to Crown Prosecutor Mark Tedeschi solely concerned QC, this is the first case of its kind where the with the cessa- legality of a person’s decision to suicide and tion of medical the assistance provided to that person by those treatment. They near him has been based upon the concept of are not concerned mental capacity. with active as- sistance to put Crown Prosecutor Mark Tedeschi QC Implications for Exit Members an end to one’s The implications of the decision in the Justins suffering. - Jenning case are significant for many in the Exit community. Most notably, the decision Furthermore, if someone you know has Alzhe- means that if a person has been tested and imer’s and you are not sure of their capacity found to be suffering from dementia, then (to make an end of life decision), a trip to the should that person choose to end their suffer- doctor to have their capacity checked could lead to certification and institutionalisation under the relevant Medical Treatment Act. Yet this was exactly what the Prosecution argued that Shirley Justins’ should have done. And it is this that the Law expected of her.
It is for this reason that Exit Director, Philip Nitschke, was quoted in the media immedi- ately after the verdict as advising people not to go to their doctors and not to be checked for Alzheimer’s. This case shows clearly that if a person has Alzheimer’s or any condition lead- Dot & Kep Enderby at the trial ing to a decline in cognitive function, then that ing, those close to them can be at risk of being person’s capacity to decide to end their suffer- charged with the most serious criminal offence of murder, regardless of the degree of involve- ment in the Alzheimer’s sufferer’s death.
Members should be aware that where a person you love has Alzheimer’s or some other cause of dementia, there is often very little the medi- cal profession can do to help. Drugs such as Aricept may stabilize and even slow a person’s deterioration, but a steady decline is expected.
Advance Directives (Living Wills) are some- times quoted as a possible source of comfort, but remember, advance directives never allow a person to ask for assistance to die. Had Graeme Wylie had an Advance Directive, this Detective Stewart Leggat who led the investigation with his colleague Constable Melanie Staples 4. Exitorial Jury Says ‘Guilty’ ing is immediately called into question. It is The court case involving Shirley Justins and Caren this questioning of a person with dementia’s Jenning has brought home dramatically the legal capacity, that exposes those close to the per- dangers that exist for those of us involved in the end-of-life options movement. son to very significant legal risk if the sufferer chooses to end their life. The Catch 22 is that It has been distressing and quite disturbing to see a if a person seeks have their capacity checked Supreme Court jury show such little understanding and the words suicide or voluntary euthanasia and even less compassion when it comes to judging are mentioned as the reason why, then institu- the actions of older people at the end of life. tionalisation becomes a very real possibility. Like many who sat through the seven week trial, I And all this in the face of an absence of a cure was completely astounded at the verdicts that were for most causes of dementia. delivered. When I met with Graeme Wylie a few weeks before he died, to assess him on behalf of Included on page 9 of this edition of Deliver- Mr Ludwig Minelli of Dignitas in Zurich, I saw a man who wanted desperately to die. ance is the most commonly-used test to show the deterioration brought about by Dementia, Yes, he was confused as to the names and number the Mini Mental State Examination (MMSE). of his children. But as the court was told, imme- It was Graeme Wylie’s scores from this test diately prior to my arrival Graeme and Shirley had that were cited as proof that he had lost the been discussing whether it might be better not to tell Dignitas (and me) that he even had children. capacity to make decisions for himself. These Graeme Wylie would not be the first Australian con- test scores over-rode the evidence given by sider lying about offspring, in order to get accepted Graeme’s friends and family, that he knew by Dignitas. No doubt he will not be the last. exactly what he was doing in making the deci- sion a. to change his will and b. to end his life. The wash-up from this court case means that Exit will now be much more focused upon the is- Exit urges all members to take this test pri- sue of mental capacity in our activities. The case vately at home. If you find yourself with a sets out clearly the danger area of ‘capacity’ when consistently poor score then you might want to suicide and assisted suicide are contemplated. think seriously about seeking medical advice and having this result recorded, especially if Planning is already underway for a one-day confer- ence on ‘Dementia, VE and the Law’ to be held in you think that you might choose to end your Sydney on Bob Dent Day 2008 (Sept 22). We are life at some future point if the deterioration convening this conference to assist members with continues. The verdict in this court case is issues that confront them, should they or a person dangerous and distressing. People who act close to them ever suffer from one of the many con- out of motives of compassion and friendship ditions that diminish a person’s capacity to make informed decisions. are not the stuff of criminals. A conviction of manslaughter shames us all. Finally this month, the Senate Committee Report on the Bob Brown Private Member’s Bill - a Bill which Caren Says ‘Thank You’ seeks to overturn the Euthanasia Laws Act (the law introduced by the Kevin Andrews Bill which over- Caren has asked Exit to thank members for turned the Rights of the Terminally Ill Act) - was the many cards and well tabled in the Senate on Thursday 26 June. The wishes that she has re- Bill will now be amended and then debated in both ceived during the course Houses of Parliament later in the year. If success- of the trial. She was ful, the Parliament of the Northern Territory will once again be able to consider laws on VE. enormously heartened to know that she was not As this newsletter goes to press we are travelling alone in this most stress- to New Zealand to host NZ’s first-ever Voluntary ful time. Euthanasia conference. Exit will also be holding a public meeting and workshop in the university town of Dunedin on the South Island. A full report will be She would also like to thank those members included in the August edition of Deliverance. who attended court each day in the public gal- lery. The sea of purple was very reassuring.
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Tel 1300 10 3948 (EXIT) Melbourne office 03 9850 8192 Email: [email protected] Auckland 09 889 0964 Web: www.exitinternational.net Chapter News ACT & New South Wales any developments in our techniques and technol- Canberra ogy and with their input and discussions two hours The ACT chapter holds meetings quarterly and has just fly by. A few of us had lunch in the club three working groups considering issues relat- Bistro, which I feel is a great way to get to really ing to the peaceful pill, other end of life options, know one another. Our next meeting will be held and Nancy’s Friends. A coordination group helps at 10.30am on Wednesday 16 July at the RSL Hall with the organisation of activities. (Being Canber- at Ballina. Contact Jude McCauley on 02-6672- rans and savvy in the ways of government, we are 3321 or email
Northern Territory Tasmania - Hobart I wear many hats at Exit and 2008 has been an ex- The Hobart Chapter will be holding a meeting at tremely hectic year. I’m hopeful however of see- 9am on Friday 3 July in Room 1, Adult Education ing NT Chapter meetings commence in the latter Centre, Church St, Hobart. Contact Keith Ander- part of the year. Is there a local member willing to son on 03-6229-2447 or email volunteer in sharing the role of coordinator or help
Townsville Please Note: The purpose of Townsville Chapter meetings is Chapter News details are constantly being received and will to foster friendship, support and trust and share be listed on the Exit Website (www.exitinternational.net) as information. The next meeting of the Townsville they occur. If you have information to be listed contact us on Chapter will be held on Sunday 17 August. [email protected] Dementia, VE & the Law Holiday Inn, Kings Cross Sydney Monday 22 September 2008 (One Day Conference) On 22 September every year, Exit celebrates According to Alzheimer’s Australia, there are Bob Dent Day. Bob Dent was the first person currently more than 100 conditions that cause to receive a legal lethal voluntary injection. dementia. Most disturbing, perhaps however is His death was the first legal voluntary euthana- the expected future trajectory of dementia. sia death in the world. Between 2000 and 2050 there will be a 300% This year Exit will be marking this special oc- increase in the number of people with demen- casion by holding a one day conference on the tia. Exit suggests that in the absence of a cure theme of ‘Dementia, Voluntary Euthanasia and for dementia, many sufferers will consider the Law. There will be a range of speakers, putting an end to their suffering while they covering all aspects of the focus of the confer- are still able and this has special relevance for ence. Registration forms will be included with voluntary euthanasia. In the coming years, the August edition of Deliverance. dementia seems likely to affect us all. Mini Mental State Examination - MMSE Test - As explained on page 5, the MMSE Test was Part III - Attention and Calculation cited in the Justins - Jenning trial as the pivotal Serial 7’s. 1 point for each correct answer. assessment of the decline in a person’s men- Stop after 5 answers. Alternatively spell tal cognitive ability. This is why Exit is now ‘world’ backward. (max score 5 pts) reproducing the Test for our members. Part IV - Recall Ask for the 3 objects repeated above. Give 1 Members are encouraged to come together point for each correct answer. (max score 3 and test each other. Be careful with the results pts) though. Recording of a score significantly less Part V - Language that the maximum 30 possible points could Name a pencil and watch. (max score 2 pts) have serious implications if you should decide Repeat the following: ‘No ifs, ands, or buts’ on a future end of life option. (max score 1 pt) Follow a 3-stage command: ‘Take a paper Part I - Orientation in your hand, fold it in half, and put it on the What is the (year) (season) (date) (day) floor.’ (max score 3 pts) (month)? (max score 5 pts) Read and obey the following: CLOSE YOUR Where are we (state) (country) (town) (hospi- EYES (max score 1 pt) tal) (floor)? (max score 5 pts) Write a sentence. (max score 1 pt) Part II - Registration Copy the design shown. (max score 1 pt) Name 3 objects: 1 second to say each. Then ask the patient all 3 after you have said them. Give 1 point for each correct answer. Then repeat them until he/she learns all 3. Count trials and record. 5 points) (max score 3 pts)
Total Score /30 (Max possible 30 points) Bob Brown Private Member’s Bill On Thursday 26 June, the eagerly-awaited Australian Democrats Senator for Queensland, Senate Committee Report into the Rights of Andrew Bartlett, asserted his support for VE the Terminally Ill (Euthanasia Laws Repeal) but argued for a national legislative approach. Bill 2008 was tabled in the Senate. A report Senator Bartlett said that while he valued Dr that presents a range of views, the focus of this Nitschke’s contribution to the committee, he Inquiry has been two-fold. Firstly, the Com- could not support the Bill in its present form. mittee examined whether the two principal Australian territories As the instigator of the - namely the North- Bill, Tasmanian Sena- ern Territory and the tor Bob Brown spoke ACT - should have the passionately and per- power to legislate on suasively in support issues associated with of the Bill passing in Voluntary Euthanasia. an amended form. In his opening comments, The second focus of Senator Brown said he the Inquiry concerned was confident that the whether any overturn- Bill would pass both ing of the Euthanasia Senator Bob Brown & Philip Nitschke at Parliament House Houses of Parliament Laws Act (which was brought about by the saying it was his ‘primary intention’ to give Kevin Andrews Private Member’s Bill) should the ACT and the NT the right to make laws. immediately restore the Rights of the Termi- nally Ill Act in the Northern Territory. Senator Brown was scathing of the views of his dissenting colleagues saying that Guy Speaking at the Report’s tabling in the Senate Barnett’s pro-life view should be treated with against the Bill was the Tasmanian Liberal, the ‘contempt it deserves.’ Opposing views he Guy Barnett, who argued instead for more said were ‘dictatorial’, ‘anti-public’, showing palliative care funding. The Senator went on a ‘failure of logic’ and extraordinary ‘timidity’ to note the danger of voluntary euthanasia on this important social issue. leading to involuntary euthanasia (the slippery slope), the danger of such legislation to indig- The Bill is expected to be debated in both enous Australians (with intimations of ethnic Houses of Parliament later in the year. A copy cleansing) and the possibility of death tourism of the 164-page Report of the Legal and Con- to the NT (since two of the four patients who stitutional Affairs Committee, together with used the Rights of the Terminally Ill Act were information about the Inquiry and a full list of from outside the Territory). In his address he submissions, are available online at: made a number of defamatory comments about http://www.aph.gov.au/Senate/committee/legcon_ctte/ Exit and Dr Philip Nitschke under parliamen- terminally_ill/index.htm tary privilege. Family First Senator for Victo- Book Planned on Justins-Jenning Trial ria, Chris Fielding, also spoke against the Bill, In light of the complexities and the often one- arguing that ‘people with suicidal thoughts’ sided media reporting of the Justins - Jenning need ‘life-saving assistance.’ murder/ assisted suicide trial, Exit is excited to announce that Dr Fiona Stewart is now writing Speaking for the Bill was Committee Chair, a book on the social, legal and medical aspects Labor Senator for the Northern Territory, Trish of the trial. The as-yet untitled book will tell Crossin, who announced the Government the story behind the public story that emerged would support the Bill in an amended form. during the trial. The book will be published in Senator Crossin advocated for a two-step 2009. Watch Deliverance for further details. process, the first of which would be to restore Deliverance is Copyright the Territory’s right to make laws on sensitive The contents of this newsletter are copyright and may only be issues such as Voluntary Euthanasia. reproduced with the permission of the Editor and with appro- priate citation. Contact: [email protected]