Right: Victorian Premier Daniel Andrews: it may be time to “take a fresh look at things”.
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Arguments in favour of legalising euthanasia
1. The individual should be able to choose to die with the least possible distress
The Victorian Inquiry into end-of-life options noted the changing nature of end of life experiences for many Victorians with increased average life expectancy and more people dying from chronic and degenerative conditions in a medicalised context.
The Committee claims this has lead to demand for improvements in the way these end of life experiences are managed. The Committee states, 'The changing prominence of diseases has shifted the focus from curing a disease to managing a person's illness and providing them comfort and pain relief as they die.' As an outgrowth of the changing nature of dying the Committee notes, 'Australian public opinion polls over the past 25 years show varying but consistent support for reform to introduce assisted dying laws.'
The Committee deliberately does not endorse a 'right to die', nor does it refer to 'dying with dignity'. Instead the Committee justifies its recommendations, including that for assisted dying, on the basis of 'autonomy', 'choice' and the avoidance of suffering.
In its statement of the 'core values' underlying its judgements, the Committee states, 'People should be able to make informed choices about the end of their life.' It elaborates, 'An adult with capacity has the right to self-determination. This is a fundamental democratic principle which should be respected.'
As a general principle, before addressing access to euthanasia, the report asserts 'Pain and suffering should be alleviated for those who are unwell.' It further states, 'The goal of end of life care should be to minimise a person's pain and suffering.'
On the question of assisted dying, it concludes, 'Prohibition of assisted dying is causing some people great pain and suffering. It is also leading some to end their lives prematurely and in distressing ways.'
The issue of preventing pre-emptive suicides was a significant one for the Committee which noted evidence from the Coroner that Victorians were regularly taking their own lives, sometimes in particularly distressing and inept ways, in order to avoid the suffering of terminal illness.
The report states that the decision as to what constitutes 'enduring and unbearable pain' (a pre-condition for accessing assisted dying) has to be left to the patient. It states, 'It is not for
others to decide what is and is not tolerable for a patient.'
Health Minister Jill Hennessy has stated, 'It is time for us to put forward a proposition that gives people a choice about how they die when they face unbearable and unspeakable suffering.'
The Health Minister has further stated, 'We know we need to do more to give people with terminal illnesses more choices at the end of their life.'
Victorian Sex Party MP Fiona Patten has declared public support for the proposed legislation, stating, 'We should respect them[suffering, terminally ill people] enough to give them the choice to die surrounded with family and friends in as much comfort as possible.'
2. Rigorous safeguards will protect against misuse of assisted dying
The Committee in its report indicated that stringent safeguards would be put in place to avoid abuse of assisted dying.
The Committee indicated that its safeguards ensure that only 'an adult, with capacity, who is at the end of life and has a serious and incurable condition which is causing enduring and unbearable suffering [is able] to request assisted dying.'
The recommended limitations on access to assisted dying, as outlined in the Committee report are:
i.'Assisted dying should be accessible only to adults, 18 years and over.'
The age restriction appears to be based on an assessment of 'capacity' or competence, with the Committee having judged that children (here defined as those less than 18 years of age) lack the experience and judgement to make a decision about when and how to end their lives.
ii. 'Assisted dying should be accessible only by people with capacity to make decisions
about their own medical treatment. Those without legal capacity cannot access assisted dying.'
This limitation appears to grow out of the Committee's concern to ensure 'self-determination' and 'choice'. It has again concluded that only the legally competent are in a position to make a decision about how and when to end their lives. It also appears to be a safeguard against allowing others, possibly with self-serving motives, to make a life-ending decision for incapacitated relatives.
This restriction to those with 'capacity' would appear to deny access to assisted dying to those with conditions such as advanced Alzheimer's disease.
iii. 'Only a person who is ordinarily resident in Victoria and either an Australian citizen or permanent resident may access assisted dying.'
This appears an attempt to prevent the Victorian medical system becoming overburdened by people normally residing in other jurisdictions coming to Victoria to access assisted dying.
iv. 'The request must come from the person themselves.' It must be 'completely voluntary and properly informed.' The request must be made three times, first verbally, then in writing and then again verbally. This seems intended to ensure that a considered and enduring decision has been made. The Committee states, 'This process ensures that the decision to request assisted dying is well considered, and that the person has a period of time to reflect on it and discuss it with loved ones.' The requirement that the decision be 'voluntary' is an attempt to avoid having people chose immediate death under coercion of some sort, perhaps under duress from relatives or others with self-serving motives.
v. 'Assisted dying should be accessible only to those who are:
a) at the end of life (final weeks or months of life), and
b) suffering from a serious and incurable condition which is causing enduring and unbearable suffering that cannot be relieved in a manner the patient deems tolerable.' The Committee also recommends that the condition be physical. It states, 'Suffering as a result of mental illness only, does not satisfy the eligibility criteria.'
This safeguard seems intended to ensure that assisted dying is not used as a means of committing suicide. The Committee intends it to be used as a means of hastening death and reducing suffering for those who are immediately terminal, not as a means of ending life for those who are otherwise healthy or whose death is not imminent.
vi. 'A request for assisted dying must be approved by a primary doctor and an
independent secondary doctor.' It is the responsibility of the primary and secondary doctors to ensure that the conditions outlined above have been met.
vii. 'In cases where either doctor is concerned that the patient's decision making capacity may be impaired by mental illness, they must refer the patient to a psychiatrist. The psychiatrist should then determine whether the patient is suffering from mental illness that makes them incapable of making informed decisions about medical treatment.'
viii. 'Patients requesting assisted dying must be properly informed:
a) of the diagnosis and prognosis of their condition, as well as the treatment options available to them, including any therapeutic options and their likely results
b) of palliative care and its benefits
c) that they are under no obligation to continue with a request for assisted dying, and may rescind their request at any time
d) of the probable result and potential risks of taking the lethal drug.
ix. Monitoring and review
The Committee has also recommended an ongoing monitoring and review process which it intends to act as a further safeguard against the possibility that access to assisted dying will be abused.
The Committee recommended:
a) an Assisted Dying Review Board, to review each approved request for assisted dying
an entity,
b) End of Life Care Victoria to provide policy and strategic direction for end of life care in Victoria and to gather, analyse and report data on end of life care practices.
3. Current legislation does not offer clear or adequate protection to doctors or others who assist the terminally ill
The Committee judged that there is a misalignment between criminal penalties and the attitude of both the courts and the public to those who assist the terminally ill to die.
With regard to private citizens who assist another person to die, Committee states, 'Assisted dying is illegal in Victoria. Inciting suicide and aiding and abetting suicide are also illegal. Despite this, the Police, the Office of Public Prosecutions, and the judiciary are reluctant to pursue harsh penalties for those who assist loved ones to die.'
With regard to doctors currently involved in assisted dying, the Committee states, 'There have been no prosecutions in Australia of doctors for assisting a patient to die, despite evidence that they do so in unlawful circumstances.
Criminal law institutions have no way of identifying end of life medical cases that ought to be
investigated. Police and prosecuting authorities are reluctant to pursue suspected cases of doctors performing assisted dying. In addition, there are also serious evidentiary obstacles in proving that a doctor intended to hasten the death of a patient in administering treatment.'
The Committee suggests that there is a significant number of Victorians who are being forced to take action outside the law and also that widespread sympathy for such actions prevents their proper legal oversight.
The Committee concludes, 'The effect of the end of life legal framework on the lives of Victorians and on the practice of medicine and the law signifies that it does not reflect our
contemporary society's values.'
Regarding the actions of medical practitioners. The Committee states, 'The recommendations... aim to increase transparency around end of life medical practice and to improve clarity on end of life law so that health practitioners can be confident knowing where the boundaries of legal medical practice lie.'
The recommendations made by the Committee are:
i. 'That the Victorian Government establish a requirement for all cases of continuous palliative sedation to be reported to the Department of Health and Human Services, and for the Department to include this data, de-identified, in its annual report.'
ii. 'That the Victorian Government enact in legislation the common law doctrine of double effect to strengthen the legal protection for doctors who provide end of life care.'
iii. 'That the Victorian Government legislate to enact the protection doctors currently have under the common law regarding withholding or withdrawing futile treatment. In this regard the Committee recommends Government give consideration to the South Australian Consent to Medical Treatment and Palliative Care Act 1995 section 17.'
The Committee also proposes the introduction of a Future health Bill
iv. That the Victorian Government introduce legislation providing for:
a) instructional health directives, which will replace the refusal of treatment certificate. This should specify:
refusal of or consent to a particular medical treatment will be taken to be a binding provision, which can apply in limited circumstances; the ability to refuse or consent to treatment in relation to future conditions; protection for ambulance officers when they act in good faith in reliance on an instructional health directive; substitute decision makers, with the equivalent of an enduring power of attorney (medical treatment), to be able to refuse medical treatment.
The final recommendation the Committee makes regarding transparency and legal protection for all parties involved in end of life decisions is the legal, safeguarded and monitored introduction of assisted dying. The Committee recommends:
v. That the Victorian Government introduce a legal framework providing for assisted dying, by enacting legislation based on the assisted dying framework outlined in this report.
4. Those opposed to euthanasia will not be required to implement it and need not use it
The proposed legislation does not envisage the direct involvement of a doctor in the administration of the means of death. 'Assisted dying should in the vast majority of cases involve a doctor prescribing a lethal drug which the patient may then take without further assistance.'
The Committee is also clear that health personnel with ethical objections to assisted dying cannot be compelled to participate in the process in any capacity The Committee makes specific recommendations for conscientious objection. It states, 'No doctor, other health practitioner or health service can be forced to participate in assisted dying.'
The Committee elaborated its position on conscientious objection as follows:
'The Committee recognises the right of doctors, other health practitioners and
health services to conscientiously object to assisted dying. The Committee
appreciates the concerns expressed by providers of palliative care services that
neither doctors nor health services should be forced to perform assisted dying.
No one should be forced to facilitate assisted dying.
The codes of conduct and ethics of the medical profession are instructive on
this matter.
The Australian Medical Association Code of Ethics states:
Respect your patient's right to choose their doctor freely, to accept or reject advice
and to make their own decisions about treatment or procedures...
When a personal moral judgement or religious belief alone prevents you from
recommending some form of therapy, inform your patient so that they may seek
care elsewhere.'
Clearly the Committee also does not envisage that any terminally ill person should be compelled to request to die. One of its guiding principles is 'self-determination' and the purpose of its safeguards is to ensure that those requesting assisted dying do so in a way that is informed, considered and voluntary.
5. Palliative care will be strengthened and extended as part of a suit of available options
The Victorian Parliament's Legal and Social Issues Committee's report attaches great importance to the provision of palliative care. It does not see assisted dying as a substitute for palliative care or as an option which should undermine the provision of palliative care.
Looking at developments in overseas jurisdictions where assisted dying has been made available, the Committee concludes that the provision of assisted dying does not reduce the use of or government support for palliative care. It states, 'Government support and funding of palliative care has not declined when assisted dying frameworks have been introduced.'
The Committee further suggests that assisted dying will only ever be a minority provision supplied to a small number of Victorians. Its report states, 'The Committee's research in Victorian and international jurisdictions has satisfied it that the methods used in assisted dying are medically sound and help that small cohort of patients who want this option to achieve a peaceful death.'
Regarding palliative care, the Committee states, 'Demand for palliative care in Victoria has steadily increased in recent times. This is forecast to continue.'
The Committee noted the quality of palliative care provided in Victoria and outlined a range of government supports and initiatives whereby the effectiveness and reach of palliative services could be extended. It concluded, 'Through proper support and awareness of Victoria's palliative care services the Committee believes it is possible to improve the number of people who die in their place of choice.'
Of the 49 recommendations made by the Committee, more than 20 make direct reference to palliative care and ways in which it might be improved.
One of the Committee's set of 'Core values for end of life care' states, 'Palliative care is an invaluable, life-enhancing part of end of life care. Palliative care provides much needed pain relief for people during the end of their life, and provides comfort to their loved ones and carers. Palliative care often prolongs life.'