At the conclusion of its last sitting, the Legislative Council voted 22:18 in favour of the legislation. Of the 18 members who voted “no”, 15 gave speeches articulating reasons for their view. We examined those speeches and identified four major themes. These were: the bill doesn’t have adequate safeguards to protect the vulnerable; legalising assisted dying presents a slippery slope; palliative care services must be improved first; and a doctor’s duty is to treat, not to kill.
Some of these arguments are misleading and they all require close scrutiny.
1. Insufficient safeguards
The most frequently cited reason for opposing the bill was the inability of safeguards to adequately protect the vulnerable. Liberal Bernie Finn expressed concern that:
There is no regard to treatable depression or other mental illness that may be driving a request to seek suicide, so long as the patient has decision-making capacity. […]
Rachel Carling-Jenkins of Cory Bernardi’s Australian Conservatives noted the bill:
[…] has no detail on how an assessing doctor will satisfy themselves that the person has informed consent in the regime.
And the Liberal David McLean Davis said he was voting against the bill as it didn’t adequately address issues of “pressure and duress”. He said:
[…] I am very concerned that there will be those who seek to inherit, those who seek to take advantage of a vulnerable person.
Concerns that vulnerable people are at risk under such laws have been rejected in top peer-reviewed journals such as The Lancet and the New England Journal of Medicine as well as by the Canadian courts, who have cross-examined evidence testing the findings of this research. Justice Smith of the Supreme Court of British Columbia concluded that:
the empirical evidence gathered in the two jurisdictions [Netherlands and Oregon] does not support the hypothesis that physician-assisted death has imposed a particular risk to socially vulnerable populations.
Further, the Victorian bill does address “treatable depression” in the sense that a person can only access assisted dying if they are assessed to have mental capacity to make the decision. If the doctor is unsure about this – for example because of the patient’s depression – the doctor must refer the person to a health professional with appropriate skills to assess capacity.
The concern about doctors not being confident of informed consent is also surprising. As part of everyday practice, doctors are aware of their legal obligation to inform patients about treatment, and the need to obtain consent for it. The bill also contains a detailed list of information that must be provided to someone seeking assistance including the person’s diagnosis and prognosis, possible treatment options, palliative care options, the potential risks of taking the substance and the expected outcome of doing so.
2. The slippery slope
The slippery slope argument contends that even though the Victorian model is currently a conservative one, that doesn’t mean it won’t evolve over time. Labor’s Nazih Elasmar argued that
[…] it has been the norm for euthanasia laws to become increasingly permissive […] The Netherlands and Belgium are perfect examples. Euthanasia laws in the Netherlands now apply to children as young as 12, while in Belgium there is no age limit.“
But this argument is also misleading. The Victorian bill is modelled on the Oregon Death with Dignity Act which has not been amended since it was enacted 20 years ago. It is disingenuous to suggest a broadening of the law is the "norm”. In this regard, the Netherlands and Belgium are not “perfect examples”.
3. Palliative care should improve instead
In terms of palliative care, there were two inter-related arguments. First, that we should be focusing on increased funding to palliative care to widen its reach, instead of introducing assisted dying.
Liberal Joshua Morris stated that for “palliative care not to be appropriately funded in our state […] is nothing short of shameful” and that provision of palliative care “must be in place before a bill of this type is considered”.
The second argument is that offering people assisted dying but not palliative care, as Labor’s Daniel Mulino said, “is not a real choice”.
But access to assistance in dying is a separate and distinct issue. Chair of Victoria’s advisory panel for the assisted dying legislation, Professor Brian Owler, has said palliative care is the “main game” when treating patients approaching the end of their lives. This will always remain so.
Funding for palliative care should be increased so that palliative care services are available to all who need it. The government can, at the same time, increase funding for palliative care and pass legislation allowing assistance to die. We are advocates for palliative care and would welcome that outcome.
As for the issue of choice, it makes no sense to suggest an otherwise eligible person should not have assistance to die because he or she does not have access to palliative care. The proponents of this argument are effectively saying it is better to have no options rather than one option at the end of life, which cannot be right.
4. Doctors should do no harm
This argument holds that an assisted dying bill will undermine the nature of the doctor-patient relationship, which is based on trust. Arguments in this theme also contend assisting patients to die is the very antithesis of what doctors do. Nazih Elasmar referred to the Hippocratic oath, noting that it says “first, do no harm”.
It’s important to note that for a person to be eligible for assisted dying under the Victorian bill, the time of healing has passed. The person is terminally ill and will inevitably die.
Secondly, many in our community including health professionals do not regard assisted dying as a “harm”. A recent Tribunal decision has accepted this view.
What counts as harm depends on context. For example, we do not normally think surgeons are violating the Hippocratic oath when they cut into our skin during life-saving surgery, yet cutting into our skin is a form of harm. We accept this harm because it is outweighed by the fact the surgery is life-saving. We can similarly argue helping people die more comfortably is not a form of harm, but is actually a benefit.
Thirdly, it is important to acknowledge that every day doctors, patients and families make decisions to withhold or withdraw treatment that will result in a patient’s death. Pain relief is also provided knowing this can accelerate death. These actions are not thought to undermine the doctor-patient relationship.
As the debate over the bill continues in Victoria’s Legislative Council, we repeat our earlier call that all MPs interrogate their positions, including the biases that underpin them, to be intellectually rigorous. Debates must be being based on reliable evidence.
Authors: Lindy Willmott, Professor of Law and Director, Australian Centre for Health Law Research, Queensland University of Technology