Observations on the paper: Voluntary Assisted Dying - A Proposal for Tasmania
Political language -- is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.
George Orwell, "Politics and the English Language", 1946
For over a year now, the Tasmanian Premier, Lara Giddings MP and her lead-coalition partner Nick McKim MP have been talking about introducing a discussion paper on euthanasia and assisted suicide as a preface to tabling legislation.
Anyone who follows Australian politics and politics in general knows the old saying: never run an inquiry if you don't know the outcome. Sure, it's a cynical view - but there's plenty of evidence to suggest that politicians - at least sometimes - take this as holy writ.
The Voluntary Assisted Dying paper (hereafter VAD) is a prime example.
A colleague recently said that he thought that this paper was 'brilliant'; and I would have to agree (though I probably would have said: breathtaking). If someone without any thought or background on this issue were to read it, he or she would be immediately convinced that there's nothing wrong with the proposal; that all is rosy in the euthanasia & assisted suicide garden; that we should just get on with it!
The first clue that this is not the case lies in the title of the paper - Voluntary Assisted Dying.
Words are important - so what are we really talking about here? Euthanasia and assisted suicide - these are the correct terms and, while there may be limits to what people understand these terms to mean, they still convey clear principles and actions. Yes, I concede that, once we have legislation to look at, how it expresses intentions could lead one to accept the modifier: voluntary. But it's still euthanasia. Assisted Suicide is more clearly understood; and when referring to a legislative process that includes an indispensable role for a doctor, we can rightly call it physician assisted suicide. Should we be concerned?
Others have clearly expressed concern about the potential risks in any legislation developed for Tasmania and allege that deficiencies exist in legislation already in place overseas. We have given these concerns a great deal of consideration and we have not been able to find any sound evidence that there is a heightened risk for people who may be vulnerable due to their age, disability, mental illness or isolation as a result of assisted dying legislation that has been enacted elsewhere. Many claims against overseas laws are based on inaccuracies and unscholarly information, whereas in-depth examination of good quality evidence, including the data published in the annual reports on the operation of specific assisted dying laws, shows these fears to be unfounded. We do not believe it is logical or reasonable to assume that vulnerable people would be at risk in Tasmania if a safeguarded voluntary assisted dying law were in place here. (from the introduction on page 2)
There are a number of things wrong with this statement. Leaving aside the most obvious - that there is scholarly information available that, at the very least, creates incontestable doubt - let's focus for a moment on what this (and other similar passages in the paper) are really saying. It's an intellectual form of gnostic paternalism - "we know all there is to know and you should just trust us when we say that everything will be just fine and dandy."
If it is, as I suggest a gnostic view, it remains nothing new. In fact, it could be said to be following a pattern over these last few years of inquiries, round tables and expert committees that have recommended legislative change. If, as I suggest, there is evidence that - at the very least - creates doubt and suggests immutable risk, then, if we're bent on producing an outcome in favour of change we would need to do one of two things: either ignore the contrary evidence or dismiss it. The VAD paper does both.
In 1998 the Community Development Committee of the Parliament of Tasmania undertook a review and produced a report entitled: The Need for Legislation for Voluntary Euthanasia for the Terminally Ill. This was a significant inquiry conducted in the wake of the overturning of the Northern Territory's Rights of the Terminally Ill Act (ROTI) by the passage of the Federal Euthanasia Laws Act in 1996. Notably, of the five Tasmanian parliamentarians who conducted the inquiry only one was known to oppose legislative change as the commencement, yet in the final report, the decision was unanimously against euthanasia - type legislation.
On that report, the VAD paper has this to say:
In 1998 the House of Assembly Community Development Committee held an inquiry into the need for voluntary euthanasia legislation in Tasmania. The Committee concluded that, on the evidence available to them at that time, voluntary euthanasia should not be decriminalised because "legislation could not adequately provide the necessary safeguards against abuse." Since 1998 a number of laws providing for self-administered assisted dying and/or doctor-administered assisted dying have been enacted in overseas jurisdictions and the intense scrutiny on the operation of these laws has provided a vast amount of evidence that shows that this conclusion is no longer valid. (Section 2.4 History of the issue in Tasmania page 11)
The observation that the 1998 committee's conclusions were based upon the evidence available to them at that time is redundant; that is, unless you're including the phrase to make a point. Then, once again, we're treated to a paternalistic assurance that the world has moved on and proved those five MPs wrong; and that is their point!
Of course this VAD paper does not have the status of a formal inquiry. It's simply the opinion of two Tasmanian MPs. It doesn't pretend to be otherwise. If the Tasmanian Parliament did see the need for another inquiry similar to that of 1998 (in other words: not because of a bill before the house) then the first point of reference would surely be the 1998 inquiry. The question could then be asked quite legitimately: is there evidence supporting or dismissing the 1998 findings?
The evidence used:
So, what evidence and information has the VAD paper used to support its conclusions?
The Royal Society of Canada End-of-Life Decision Making Report (Nov 2011):
Australian academic working in Canada, Margaret Somerville, writing for the Montreal Gazette called this report, 'an unabashed pro-euthanasia manifesto', adding that, "(T)he arguments against the legalization of euthanasia and physician-assisted suicide are almost completely absent."
The UK Commission on Assisted Dying (Jan 2012):
UK CareNotKilling Director, Peter Saunders, called the commission 'biased and flawed' adding:
"This private commission was sponsored by Dignity in Dying, formerly the Voluntary Euthanasia Society, and financed by one of their patrons, with panel members being handpicked by Lord Falconer, a leading advocate of changing the law.
"Nine of its eleven members were known backers of assisted suicide with a strong ideological vested interest in this as the outcome. Those with a differing view including representatives from the major disability rights organisations and doctors' groups were not invited to join the Commission. The overt bias in the structure of the commission is why over 40 organisations including the British Medical Association and many individuals boycotted the inquiry.
Quebec National Assembly Committee Report Dying with Dignity (Mar 2012):
Margaret Somerville, again writing for the Montreal Gazette observed that:
The Quebec report takes a purely utilitarian approach to the euthanasia question. In the committee's estimation, legalizing euthanasia will do more good than harm - and that justifies allowing it.
In proposing to replace the word euthanasia with the term "aide médicale à mourir," the committee is introducing a euphemism that both trivializes and is likely to conceal underlying moral and ethical issues.
Carter vs Canada (Jun 2012)
Canadian anti-euthanasia activist, Alex Schadenberg summarized the Carter Case:
"In June 2012, Justice Lynn Smith decided in the Carter case in British Columbia to strike down Canada's assisted suicide law and to order parliament to legalize euthanasia. Smith stated that "assisted death" could be safely legalized in Canada and that there are no signs of a "slippery slope" in jurisdictions where it is legal.
"The reports that were published by the Royal Society of Canada, the Commission on Dying in the UK and the Quebec Dying with Dignity report are one-sided reports that appear to have ignored the data from Belgium and the Netherlands that prove that vulnerable patient groups are dying by euthanasia without request and that doctors are abusing the law and covering it up by not reporting the death as euthanasia.
"The decision by Justice Smith in the Carter case was heavily based on the Royal Society of Canada report and needs to be overturned for its lack of objectivity."
Moreover, as noted by MercatorNet editor, Michael Cook, the Carter Case is 'a judicial opinion in a case which is still under appeal'. This does not dismiss the judgement from any discussion, but does put its findings in a judicial limbo until the appeal is finalized.
In respect to the Royal Society of Canada and the UK Commission on Assisted Dying Cook also observes that they are 'discredited private initiatives stacked with supporters of euthanasia'.
Whether or not they are 'discredited' in an academic understanding of the term I cannot qualify. However, as pointed out, there are reasons to question the outcomes. Like both the UK and Canadian reports, the VAD paper is a private initiative and it needs to be recognised as such. Looking at these reports (above) in chronological order and reading the comments, it becomes quite clear that each successive 'report' has relied heavily on its antecedents.
This is also the case with the background paper developed for the Australia21 organisation Entitled: How should Australia regulate voluntary euthanasia and assisted suicide? This paper informed their recent 'round table' on euthanasia and assisted suicide and is acknowledged in the VAD paper as a reference source.
paper makes a great deal of the same sources mentioned above. It does acknowledge (as does the VAD paper) that there are counter arguments, but likewise it pays scant attention to them and fails to reference any serious studies.
There's a clear pattern here - a pathology if you like.
I have no intention of demonizing Giddings and McKim or those that helped them produce their paper. One cannot know what they were thinking and, in any case, there's nothing wrong with citing references that support one's argument. But when the appeal is to a community in regards to an issue so serious, so fundamental to our society, it is essential that a paper like the VAD takes on board criticisms and at least attempt to answer them.
And if all of the above were not 'breathtaking' enough the paper preemptively dismisses any representation you or I might make to the contrary:
We have been unable to find any satisfactory substantiation of the repeated claims that voluntary assisted dying legislation constitutes a threat to society as a whole, to people in vulnerable groups (such as people with a disability or the elderly), to the role of the doctor, or to the doctor-patient relationship.
Section 3.2 of this paper sets out the main arguments against voluntary assisted dying law reform. However, there are a number of other claims and arguments against this reform which we have noted in our research and have rejected as unreliable or invalid. (both from page 19)
What follows is a list of categories and subcategories into which the 'unreliable or invalid' arguments have been placed. Once again the authors have played judge and jury on behalf of the grateful citizens of Tasmania. What did they dismiss and why, we do not know. Can we expect submissions to their paper to meet a similar end in the dustbin of dissent - it seems likely.
The paper moves on to cover areas of concerns - but only so as to point to what they would say are the kinds of safeguards and gate keeping roles that they believe would make euthanasia & assisted suicide legislation safe and workable. I refrain from commenting on this area of the paper because it seems pointless to comment on an intention when it is only the wording and schema in any bill that really matters.
What I want to say, in closing, is echoed in an obtuse way in the VAD paper where the authors summarize their out-of-hand rejection of opposing data and information:
Whether claims and arguments that fit into these categories are due to genuine mistakes, carelessness in research or deliberate attempts to mislead, the outcome is the same: they provide very poor quality material on which to base consideration of legislation. On this issue, claims are made that the vast majority of people would find preposterous by any standard and not just the higher standards required for decisions on our laws.
This cuts both ways. And what precisely are the higher standards required for decisions on our laws? Protecting vulnerable people means not passing legislation that knowingly does harm or creates a known risk of harm - that is the highest standard. The hallmark of a civil society is how it treats its most vulnerable; so there is a risk here not only to vulnerable people themselves but also to how our society observes this imperative as a whole in the future.
The Parliament of Tasmania in adopting this precautionary principle should acknowledge that, regardless of empty protestations to the contrary, a known and insurmountable risk does exist. And that the inability of any legislation to create safe state-sanctioned killing or safe state-approved assisted suicide should mandate the exercise of caution and the ultimate rejection of any bill.