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Further implications
Any law which raises questions of life and death and modifies the relationship between doctors and patients is of great significance and is likely to provoke debate. With regard to legalising assisted dying, there appear to be three principal areas of contention - around values, definitions and interpretation of data.
Re values, there are those who contend that excruciating pain at the end of life cannot be justified because removing it by assisted dying might cause harm to others through diminishing their choices or changing the climate in which their medical care is given. For these supporters of assisted dying, the hypothetical harm does not outweigh the benefit of the immediate, actual relief of suffering. On the anti-euthanasia side of the dispute, there are those who argue in terms of numbers and who contend that the relief offered a small number of patients via assisted dying, is not sufficiently significant to put large numbers of other people at risk. In addition, there are differing views around the relative value of the 'sanctity of life' and of 'autonomy' and what is sometimes referred to as 'the right to die'.
Definitions also differ. The final report of the Victorian Parliament's Legal and Social Issues Committee's 'Inquiry into end of life choices' is careful to define the action it wishes to legalise as 'assisted death' rather than 'physician assisted suicide' - a phrase used in some other jurisdictions. This would appear to be because the Committee wishes to stress patient 'self-determination' and avoid situations where the voluntary nature of the life-ending act might be questioned because it is performed by a doctor or other medical personnel. The Committee also wishes to make it clear that it is not seeking to sanction 'suicide'. What it is referring to is the hastening of death rather than the simple causing of death, as has been legalised in some jurisdictions where a person needs only to be suffering intractable pain to have his or her death 'assisted'. In the Victorian legislation, foreshadowed by the Committee, those seeking to have their lives prematurely ended would need to be in the final stages of a terminal condition with only weeks or months left to live.
Some of the questions involving personal values are not resoluble. There is no logical way of deciding between the 'sanctity of life' and the 'right to die'. Each is essentially a question of ideology or belief. On the question of hypothetical harm as opposed to demonstrable benefit, there is some prospect of clarifying this question. There are now a number of states and countries around the world where different forms of euthanasia have been practised. Careful study of the effects in these jurisdictions should help legislators in Australia determine just how likely these 'hypothetical' harms are. Have they occurred in other jurisdictions following the legalisation of euthanasia?
A similar approach could be adopted regarding differing definitions of euthanasia and exactly what form of the action, if any, should be legalised. The limited definitions Victoria is intending to apply are meant to prevent abuses of the practice. For example, if the lethal substance is self-administered, as is intended in the proposed Victorian legislation, there is less likelihood that someone's life will be ended against his or her wishes. To determine the necessity for this limited form of 'assisted dying' it should be possible to discover if jurisdictions with more liberal definitions have found involuntary euthanasia has occurred.
What would therefore seem to be needed is a close examination of the available evidence from within Victoria to determine the need to adopt any form of assisted dying. If a need is established then a similarly close examination of other jurisdictions where euthanasia has been legalised should make it possible to weigh the benefits against the harms.
The Victorian Parliament's Legal and Social Issues Committee claims to have weighed the existing evidence in this manner. What is concerning is that this claim has been disputed. Daniel Mulino's Minority Report claims that the data the Committee considered does not support the conclusions it has come to.
One of the challenging features of the debate surrounding the legislation of assisted dying is the manner in which the available evidence is used. Those supporting an alteration to the law tend to interpret the experience of overseas jurisdictions that have legalised euthanasia in a positive light. Those who are either opposed to or apprehensive about such a change will look at the same evidence and see it differently. Thus the experience of the American state of Oregon, since it legalised euthanasia, is seen either as one of stability and the effective application of regulation or as one where there has been a concerning growth in the number of people accessing assisted dying.
In 2013 the International Journal of Law and Psychiatry published a paper by Brian L. Mishara, Centre for Research and Intervention on Suicide and Euthanasia, University of Qubec, Montreal, Canada and David Weisstub, Legal Psychiatry and Biomedical Ethics, University of Qubec, Montreal, Canada, titled 'Premises and evidence in the rhetoric of assisted suicide and euthanasia'. The article highlighted the lack of objective analysis of premises and data in the euthanasia debate. It stated, 'In debates about euthanasia and assisted suicide, it is rare to find an article that begins with an expression of neutral interest and then proceeds to examine the various arguments and data before drawing conclusions based upon the results of a scholarly investigation.' Such an objective analysis of data and premises is necessary in this debate.
The Victorian Government plans to establish an expert panel to help draft its proposed legislation; however, the function of this panel does not appear to be to re-examine the premises upon which the Committee has formed its judgements or the evidence upon which it claims to have based its conclusions. Supporters of assisted dying may see such a re-examination as merely a stalling device; however, given the importance of the issue, it is desirable that governments be as objectively sure of their ground as possible before they act. Rather than serve as a stalling device, it is even possible that a re-examination of presuppositions and of the available evidence might allay fears and lead to the legalisation of a less limited form of assisted dying.