Dear Members of the South Australian House of Assembly,
Voluntary Assisted Dying Bill
My name is Paul Russell. About 10 years ago I started a national organisation to oppose euthanasia and assisted suicide after working actively against such legislation for the previous decade in one guise or another.
Paul Russell
I gave up this work during the Victorian debate nearly four years ago now when my wife, Anne, was diagnosed with metastatic breast cancer.
These last four years have been an incredible journey as our family moved from living with someone dying from cancer to living with someone living well with cancer. It has been a rollercoaster for all of us and a continuing journey of love and solidarity.
When I left my work, some wondered whether or not this ‘first-hand-experience’ would change our thinking on the subject. It has certainly informed my thinking and, because of it, I find myself even more firmly opposed.
Does this experience make my observations unique? No, not at all. But I ask you to consider that, in combination with close to two decades studying this issue, that it is at the very least, an informed opinion.
I hope you can take the time to read on.
When the Premier of this State can say, in the chamber, that this bill before you is about when, ‘… after all other efforts to cure an illness, relieve the symptoms and make daily life more bearable have been tried and failed…’1 – a claim that is not supported by anything in the bill - I am left to question whether the rhetoric has run ahead of the reality. More concerning, however, is the unsupported claim that this bill is the most conservative bill with the most safeguards.
Most conservative bill ever? 68 safeguards? Really?
The Cambridge Online dictionary defines a safeguard as:
a law, rule, or something that is done to protect someone or something from harm or damage
The Voluntary Assisted Dying Bill 2020 in its Victorian iteration was claimed to be “the safest and most conservative (legislation) in the world”. This was based upon the claim that the legislation contained ’68 Safeguards’. The final report of the Victorian Ministerial Advisory Panel in 2017 went so far as to list these supposed ‘safeguards’ alongside other legislative instruments from various other jurisdictions to attempt to show how other jurisdictions were putatively ‘less safe’ than this new model.2
Two questions need to be considered when assessing these claims.
Firstly, what constitutes a ‘safeguard’ in such legislation and, secondly, who is it that these ’68 Safeguards’ seek to protect from ‘harm or damage’?
It might seem somewhat trite to observe that the inclusion of safeguards in such legislation has the primary end in convincing legislators to support the proposal. However, it is worth considering that, without so-called ‘safeguards’ few legislators would support assisted dying legislation.
Safeguards in euthanasia and assisted suicide legislation have always been thought of as those inclusions that seek to protect vulnerable people; people who, for whatever reason, may be coerced or feel pressured into choosing death; where a decision to choose death via such legislative provisions was not truly voluntary.
In 2020, McDougall and Pratt published a paper that looked at the Victorian legislation asking the title question: Too much safety” Safeguards and equal access in the context of voluntary assisted dying legislation3. Based on a ‘rights’ framework, the authors argued that some elements of the legislative framework were too restrictive and denied equal access.
It terms of the so-called ‘safeguards’ they made the following observations:
While the elements of the legislation within the comparison table (referred to above) are all framed as safeguards, they are not all aimed at patient safety specifically. Some, such as the conscientious objection provisions, are explicitly labelled by the Ministerial Advisory Panel as “practitioner protections” … The word “safeguards” is thus used broadly in the Victorian context, to include patient-focused and practitioner-focused elements of the legislation. Diverse provisions of the Victorian legislation – such as the prohibition on health practitioners raising VAD, the requirement for one of the doctors to have expertise in the relevant condition, the strong protection for conscientious objectors, and many others – are all framed as safeguards.4
So, the ‘sales-pitch’ that the bill before the South Australian Parliament has “68 Safeguards” may be true in the broadest terms as described above, but in terms of protecting vulnerable persons – what we normally think of when ‘safeguards’ are mentioned – there are no more protections here than in any other form of words presented to the parliament over many decades. The same problems remain.
The vast majority of the “68 Safeguards” either protect the doctors involved or are simply procedural. Procedural matters are always open to challenge and change as has been seen in many jurisdictions post-legislative assent.5 Erring on the generous side, only about seven of those safeguards listed could reasonably be construed as attempts to protect vulnerable people. As noted earlier, they are really no different to any we have seen in South Australia over the last 17 legislative attempts.
I urge you therefore, to reject the notion that this bill is somehow ‘safer’ than any others.
A word on vulnerability
Every person, every one of us, can and may be vulnerable at some point in our lives. Whether by some trauma, loss of a loved one, serious illness etc., each of us and each of our family members can find our inner resilience tested and even found wanting in the face of such difficulties.
My family has been travelling that road for a while now. In truth, it’s a bit more like a rollercoaster than a road: there are highs and lows and each of us sees and responds to things differently. Oft times conversations can be clumsy as our understanding and expectations can vary so much.
Take an example told to me by a palliative care doctor. The family of an elderly woman were called to her side from interstate. She was dying. Her son took the doctor aside and asked him, ‘Isn’t there anything that can be done to speed this up?’ The doctor saw callous indifference in the comment. I saw it differently. Death and dying don’t fit into our daily schedules. When such things happen our worlds are turned upside down and inside out. The sure foundations of our work, life’s routines etc. can often be shaken if not destroyed. It is entirely possible that the words of that man came from such a place of uncertainty as his plans were disrupted by his mother’s dying. His words may have been innocent of any bad intent; but others may have seen it differently.
Or my dear mother-in-law, who would often say in her later years: “Please! Just hit me on the head, dear!’ We knew this as a cry of frustration and a need for acknowledgement. Others may have seen it differently.
We cannot legislate against vulnerability nor poor decision making or inadvertent poorly worded comments or gestures. Nor can we reasonably expect that two doctors could sniff out and eliminate the difficult and sometimes awkward expressions that are in essence the outworking of grief and not necessarily a serious request to die.
Removing the protection of the law
The Criminal Code sections on homicide and assisting in suicide protect every South Australian in equal measure. This bill acknowledges explicitly that doctors and others who act in accordance with this bill are exempt from the provisions of The Criminal Law Consolidation Act 1935 13a. Criminal liability in relation to suicide. What was a crime one day becomes legal by the stroke of the Governor’s pen.
Whatever protection this law provides for all citizens is removed for those who are seeking access to their own death via Voluntary Assisted Dying.
But more than that; once the poison is dispensed and taken home, the person involved now has no effective protection from the laws on homicide as well.
How so? Put simply: where death is an expected outcome and a ‘success’, is there any reason to investigate what might actually be a homicide or perhaps assisting in suicide outside the provisions of the bill?
Placing the substance in a locked tin is hardly a safeguard. No-one is safe from a person with nefarious intent. Be it forcing the person to ingest the poison when they either were not ready or did not want to, or pressuring them to take it themselves, there is no independent person to verify what took place. No police investigation, no trial.
Remember Anne Marie Smith anyone? Abuse happens behind closed doors and in the dark places. This bill provides opportunity and obfuscates possible motive.
Two doctors
One of the supposed safeguards in this bill is the involvement of the medical profession in the process. People trust their doctors. Including them really does make us think that only those with a sound mind and settled intent will ever be prescribed the poison; that they fulfil the important role of ‘gatekeepers’.
Both the coordinating medical practitioner and the consulting medical practitioner must assess that the person is ‘acting voluntarily and without coercion’ and, their request is ‘enduring’. Surely this safeguard protects vulnerable people?
It may – but it may not.
Strangely, the bill does not mention depression, anxiety or hopelessness. Yet the detection of depression in patients by doctors is known to be a hit-and-miss affair. Likewise even for oncologists:
- UK GPs recognize depression in only 39% of all depressed patients attending their practices.6
- Oncologists recognize 33% of mild-to-moderate cases of depression and only 13% of severe depression cases in their cancer patients.7
- Nurses under-identify severe depression cases in their cancer patients.8
And yet all this bill does is suggest the possibility of a mental health professional being involved, whose opinion may even be discarded.
No-one will ever be able to gainsay the opinion of either of the two doctors. That we ascribe such omniscience in our medical profession is staggering. That we even ask them to decide who lives and who dies is an appalling affront to medicine.
Doctors are human too. They can be affected by pressure, coercion and empathy in their decision making just like the rest of us:
Transference and countertransference feelings are normal and can occur in any doctor-patient relationship. When these feelings heighten around emotionally intense issues, they can exert coercive pressure on clinical decision-making with an obligatory quality that is difficult to resist.9
Let’s be realistic. Yes, this is a safeguard. But let’s not kid ourselves into thinking it as failure proof. It isn’t!
Which begs the question? How safe is safe enough? Or to put it another way: What level of risk are you willing to accept? When the risk is that some people may die against their expressed wishes or without their ultimate consent and even by nefarious intent, I would argue that no risk is acceptable.
Inexorable incremental extension
Some call it the ‘slippery slope’ which is not an accurate characterisation. Incremental extension, whereby the criteria is adjusted and expanded in steps and overtime, is however a reality that cannot be ignored.
When I think about the various euthanasia type bills that this place has seen over the last few decades, there have been many different starting points; variations usually designed to be a very minimal approach to allowing people to be made dead with the approval of the state.
Phillip Nitschke would rail against these restrictions. He, and others, would often call them ‘hoops to jump through’ or even ‘roadblocks’ to what he called ‘a peaceful end’.
Nitschke is right. He is right to observe that the restrictions in this bill are essentially bogus.
If, as this bill proposes, we accept that people can choose to die and be aided to do so by the state, what right have we to limit that?
What about a 17 year old with a terminal condition? What about someone with a prognosis of more than six months? What about simply for mental health conditions that aren’t terminal? What about people who feel that they have completed their lives and simply want to exit?
Maybe we’re not enshrining a ‘right to die’ in this bill. I say maybe because it seems to me that this slogan adopted by pro-euthanasia groups over many decades, while now discarded, is in fact the truth of it.
Some may wish to observe that ‘a ‘right’ is universal, but this is only limited to a few’.
Precisely. Limited to a few – the place where we start. It becomes thereafter a ‘right’ nevertheless.
And I think of the media stories we have heard of late, heart-rending stories of people who are using their situations in the push behind this bill.
But I ask, do you think that these kind of stories will simply go away if we pass this bill? That hasn’t happened in other jurisdictions that have gone down this road, so I don’t see why it would happen here. Already we have seen such stories emanating from Victoria pushing to amend their legislation (upon which this bill is modelled).
And it is compelling. Why? Because whether we accept that we are creating a ‘right to die’ or not, it is difficult to bat away those cries because of our natural empathy for those who are suffering and because it would seem an injustice to deny to one what we have allowed for another.
And I note with interest the recent recommendations of the Queensland Law Reform Commission on this issue. Amongst other things, they recommend ‘12 months to live’ as their starting point.
We heard much made of the notion that the various bills and Acts in each state should be uniform in their application. Well, Queensland just blew that out of the water totally!
Well, let them do what they will do. Your responsibility is for the welfare of South Australians and not to kowtow in obeisance to another state simply on the basis that they walked down this road first.
I also recall in 2010, a WA MLC who had designed a bill telling pro-euthanasia supporters that he knew not everyone would be happy with how he had framed his bill, but that it was a ‘good start’.
Turning briefly on Canada. Canada, with a political system very much like our own. Canada legislated for what they call ‘Medical Aid in Dying’ in 2016 in response to an order to do so from the Canadian Supreme Court. In a further court decision on September 11, 2019 the Quebec Superior Court, struck down the requirement that a person be terminally ill to qualify for euthanasia in Canada.
In response, the Canadian government developed and passed bill C7 in March of this year. C7 went beyond the direction of the courts.
As Alex Schadenberg writes:
- Bill C-7 removed the requirement in the law that a person’s natural death be reasonably foreseeable in order to qualify for assisted death. Therefore, people who are not terminally ill could die by euthanasia.
- Bill C-7 created a two track law whereby a person whose natural death is deemed to be reasonably foreseeable has no waiting period, and could die on the same day as their request, while a person whose natural death is not deemed to be reasonably foreseeable would have a 90 day waiting period before being killed by lethal injection.
- Bill C-7 permits a doctor or nurse practitioner to lethally inject a person who is incapable of consenting, if that person was previously approved for assisted death.
- Bill C-7 approved euthanasia for people experiencing mental illness alone. Parliament placed a hold on this category of deaths for 24 months to enable the government to establish protocols for killing these people.
So, I ask rhetorically, why not start at where Canada is now? If that’s where this is heading, why not just bite the bullet and start a little further down that road?
I can’t imagine that anyone in our parliament would accept such a proposition at this time. Which goes to further prove the point that, in reality, all this talk of safeguards is really only there to make legislators feel less uneasy about supporting the idea of state-endorsed suicide. Because that’s what we are talking about here. It’s our starting point and it would be foolish to think that it will finish at this spot. It’s a beachhead for what will follow. It prises open the door and leaves it ajar.
By passing this bill you will have created a monster; a voracious monster that your successors will be compelled to feed. Yes, that would be their decision, but you will have made that possible.
You will have crossed a divide that has stood since ever laws were codified.
Somehow we make heroes of those who seek to push this kind of change. We all need heroes. The true heroes are those like Anne who teach us how to live well in difficult circumstances. Like her, I ask you to take courage and make a decision to choose life.
Please, don’t go there; we can all live without it.
With thanks and appreciation.
Paul Russell
paulstud@chariot.net.au
1 HOA Hansard 26th May 2021
2 Report can be found here: https://www2.health.vic.gov.au/about/publications/researchandreports/ministerial-advisory-panel-on-voluntary-assisted-dying-final-report Tables can be found at pages 217 - 220
3 McDougall, R., Pratt, B. Too much safety? Safeguards and equal access in the context of voluntary assisted dying legislation. BMC Med Ethics 21, 38 (2020). https://doi.org/10.1186/s12910-020-00483-5 available at: https://bmcmedethics.biomedcentral.com/articles/10.1186/s12910-020-00483-5
4 Ibid.
5 See for example: https://alexschadenberg.blogspot.com/2021/05/pressure-to-expand-euthanasia-in.html
6 Thompson C, Kinmonth AL, Stevens L, Peveler RC, Stevens A, Ostler KJ, Pickering RM, Baker NG, Henson A, Preece J, Cooper D, Campbell
7 Passik SD, Dugan W, McDonald MV, Rosenfeld B, Theobald DE, Edgerton S. Oncologists' recognition of depression in their patients with cancer. J Clin Oncol. 1998 Apr;16(4):1594-600. doi: 10.1200/JCO.1998.16.4.1594. PMID: 9552071.
8 McDonald MV, Passik SD, Dugan W, Rosenfeld B, Theobald DE, Edgerton S. Nurses' recognition of depression in their patients with cancer. Oncol Nurs Forum. 1999 Apr;26(3):593-9. PMID: 10214600.
9 Hicks, M.HR. Physician-assisted suicide: a review of the literature concerning practical and clinical implications for UK doctors. BMC Fam Pract 7, 39 (2006). https://doi.org/10.1186/1471-2296-7-39
No comments:
Post a Comment