Victoria’s Voluntary Assisted Dying Act: a bag of unforeseen consequences
Tuesday, 23 July 2019
| John Buchanan
Should the Victorian model of assisted suicide and euthanasia be extended to other States, as is now being considered? Have the pros and cons been fully considered? Is it safe?
This is a complex medical and psychological issue, which calls for rational examination rather than emotive slogans. It is necessary to understand the arguments for and against, including the consequences of this radical legislation for future patients.
Why do some argue for assisted suicide and euthanasia legislation?
A careful reading of the over 1,000 submissions to the 2015-2016 Victorian Inquiry reveals several motivations. The main ones are the ‘compassion argument’, linked with poor family deaths years ago and a belief that Palliative Care cannot relieve ‘all distress’; the ‘poll argument’ – ‘people want it’; an ideology of ‘rights’; and a desire for ‘autonomy’. A consistent theme is an unstated fear of ‘uncontrollable distress’, as some advocates imply is common.
However, Canadian evidence shows that people who use assisted suicide and euthanasia are not suffering uncontrolled terminal illness symptoms, but want convenience and control; they are driven by their fears. This was re-stated recently in Melbourne when a Canadian euthanasia doctor observed that most were ‘captains of industry who were used to control’.
Many Palliative Care physicians believe that Palliative Care measures are adequate, if existing skills and knowledge are used, and they are of the opinion that this legislation is unnecessary. Too often the relevant professional skills are only partially available in the community due to the reality that Palliative Care is a young specialty, and many professionals have poor training as a consequence of inadequate government funding. The Palliative Care Victoria submission to the Victorian Inquiry stated:
In most cases, specialist palliative care teams are able to address the person’s physical pain and other symptoms and to respond to their psycho-social, emotional, spiritual and cultural needs so that they are able to live and die well with dignity. However, a small minority of patients experience refractory symptoms such as agitated delirium, difficulties breathing, pain and convulsions.
Refractory symptoms are defined as
pain or other symptoms for which all possible treatment has failed, or it is estimated that no methods are available for palliation within the time frame and the risk-benefit ratio that the patient can tolerate ... Prudent application of palliative sedation therapy may be used in the care of selected palliative care patients with otherwise refractory distress.
Many of the submissions to the Inquiry described poor deaths decades ago - obviously distressing, but not necessarily relevant to the expertise of modern Palliative Care in 2019, if the government acts to improve training of all health professionals to the level of currently available specialist knowledge and skills.
What weight can be put on polls? Over decades people have been given unrealistic alternatives (uncontrollable suffering or legalise euthanasia) - a deliberately false choice created by advocates to enhance their argument. Modern Palliative Care is better than that. Many members of the public have no up-to-date knowledge of Palliative Care and think it is merely hand-holding rather than a medical specialty. They also have no concept of the legal and medical consequences of euthanasia legislation. An uninformed opinion about any subject is not a valid opinion.
Palliative Care is not perfect. Is any medical specialty perfect? Is there any illness that does not involve some suffering? But there is no need to change the law to get good Palliative Care. What is needed is the dissemination of the existing knowledge that resides in expert Palliative Care services.
Some offer the argument of ‘existential suffering’ as requiring assisted suicide legislation. This is code for ‘euthanasia on demand’, as some people explicitly advocate. How could any doctor interpret a criterion of ‘existential suffering’? In reality, it means a free-for-all. It would cover psychiatric illness, being ‘tired of life’, grief and the impulsive suicidal thought of severe depressive illness, all of which may be quite treatable.
The problems with the Victorian legislation
If you assumed the legislation was the result of careful rational thought, taking the problematic consequences of such legislation into account, you would be mistaken. The legislation was suggested by an Upper House member whose vote the Premier wanted on other issues. The Inquiry member selection was biased towards those with a pre-existing view in favour of assisted suicide. Government members of Parliament were directed to vote for the legislation. Six Labor government MLAs voted against the Bill in the Assembly, two of them ministers (one of them the Deputy Premier). Three Labor MLCs voted against the Bill in the Council (after giving eloquent reasons as to why it was unsafe).
There are a number of problems with the Victorian legislation. The legislation is described by some as having ‘strict eligibility criteria’ and including ‘safeguards’, but an examination of Section 9 of the Act reveals that some key processes are missing. The criteria are actually loose, easy to get around by ‘doctor-shopping’ and unsafe. The problem is that Parliament decides the criteria, but the way it actually works is effectively up to the interpretation of the doctors consulted and what they are told by the patient.
Some think ‘the process must be safe - two doctors have to get a permit!’, but it is entirely dependent on what the patient tells the two doctors, whom they may never have seen before. Under the Victorian model (Section 9 of The Act) the process is initiated by what the person tells the two doctors, who may have been ‘doctor-shopped’ as practitioners who are known to be willing to sign the forms.
The patient may be seriously misinformed about both diagnosis and options for Palliative treatment, affected by depression or pushed by relatives. What they say to the two doctors does not have to be verified. There is no requirement for the checking of pathology tests, no requirement for discussion with the treating doctor, no requirement for referral to a Palliative Care physician or a psychiatrist. It is just ‘I believe I have a terminal illness and want assisted suicide’.
The ‘regulation by permit’ offers no actual control over the process. The permit is signed off by bureaucrats. There is no proper medical review until the person is dead.
The normal clinical management in this situation is to explore why the person has suicidal thoughts, which may be for many reasons such as poor pain control, poor medication use, being misinformed about diagnosis implications and treatment options, family conflict, pressure from intolerant relatives or past history of depression. Such an assessment is usually done by experienced Palliative Care physicians or psychiatrists. Instead, in the Victorian legislation, this normal clinical process and patient care are abandoned and the focus becomes quasi-legal: Does the person ‘qualify’? Are they of ‘sound mind’?
People will be handed a fatal poison at home, to take when they wish: What will become of it? What if other persons, especially children, get access to it?
The death certificate will be falsified (as the Act requires) because they have accessed assisted suicide or doctor-actioned euthanasia, so that whatever the person says is wrong with them will be labelled as the cause of death, even if it is factually incorrect. Transparency about this social experiment is supremely important and should include full independent reporting. How else can it be evaluated?
There will be wrongful deaths by misunderstanding of diagnosis implications and the documented fact that doctors are unable to give an accurate prognosis of how long a person has to live. Seriously ill people often feel a nuisance and are vulnerable to relatives pushing for ‘early inheritance’, which is a form of elder abuse.
This legislation opens the door to many unforeseen consequences. It is discriminatory - against ill people, and disabled people. It will lead to people being fearful of doctors and of Palliative Care.
Response from medical professionals
The Western Australian (WA) Government is considering legislation similar to the Victorian legislation, except it is looser in that it allows doctors to raise the subject with patients. Australian Medical Association WA president Dr Omar Khorshid said recently he was concerned that the panel had recommended a regime that was ‘nowhere near as safe’ as Victoria’s. He was worried that Queensland, the next state to consider euthanasia laws, would go further. ‘There is no justification for slipping down the slope into a bad regime that is dangerous’, he said. ‘The AMA’s view is that we need to protect the vulnerable in society if we are to move down this path of euthanasia.’
The head of the WA Palliative Medicine Specialist Group, Dr Anil Tandon, a Palliative Care physician at Perth’s Sir Charles Gairdner Hospital, said the group was concerned that euthanasia would be introduced in WA when many people did not have access to adequate Palliative Care services. He said WA had the lowest proportion of Palliative Care doctors of any state and the government needed to spend more on services for the terminally ill. In an open letter to the government, 21 members of the group — 16 doctors, four nurses and a pharmacist — said they believed euthanasia was not a solution to suffering:
The proposal to legalise euthanasia and assisted suicide involves a massive change in the ethics of our society. … “Do not kill” is a foundational ethical principle which has been observed by every civilisation for thousands of years. Euthanasia and assisted suicide are not medical treatments, and most emphatically not part of palliative care.
The specialists said they supported the rights of their patients to refuse treatment, to end treatment deemed as unnecessary, to control their symptoms and to choose where they would die. ‘We reaffirm our commitment to our patients: we will continue to care for you to the best of our ability, guided by your choices, but we will not kill you’, they said.
There is informal pressure on doctors to go against long-standing medical ethics, and against the World Medical Association and American Medical Association who both state that assisted suicide is unethical. The Australian AMA ethics statement states that doctors should not be involved. A recent article in the British Medical Journal described the pressure experienced by GPs in The Netherlands, including ‘emotional blackmail’.
Freedom of conscience for doctors is supremely important; many doctors do not wish to perform these actions, which are against their personal and medical ethics. They see the long-term problems now evident in The Netherlands and Belgium and can foresee the harm to future patients.
The initial criteria morph in practice into increasingly slack interpretation, including euthanasia for psychiatric illness and documented involuntary euthanasia. Former Australian Prime Minister Paul Keating said of the Victorian legislation:
An alarming aspect of the debate is the claim that safeguards can be provided at every step to protect the vulnerable. This claim exposes the bald utopianism of the project – the advocates support a bill to authorise termination of life in the name of compassion, while at the same time claiming they can guarantee protection of the vulnerable, the depressed and the poor.
Once this ethical line is crossed, the genie is out of the bottle and future patients will be harmed.
John Buchanan has clinical experience as a Consultant Physician, Palliative Care physician and Consultant Psychiatrist in Oncology and Palliative Care. He is the Honorary Secretary of the Australian Care Alliance.