'Losers and Losers' in Victorian Committee recommendations

by Paul Russell:

It is perhaps inevitable, in the push for euthanasia and or assisted suicide, that there will be those who find themselves disappointed with the outcome; people who will have wanted a broader application as a starting point than that which they find presented to parliament.

Such is the expression of disappointment of the daughter of Peter and Pat Shaw who committed suicide in 2015. Mr and Mrs Shaw were not terminally ill but simply experiencing life changes that come with aging. This week, Anny Shaw told The Age newspaper that, "the committee's recommendation is a step in the right direction but the most conservative of possible options.

"It doesn't help those who are terminally old and fed up.

"The point is that the older and more incapacitated these people are, the more they require assistance."

This comes at a time where the public debate in Holland is moving rapidly towards the acceptance of the idea of a 'Last Will Pill' for people over the age of 75 who have a 'completed life' and want to suicide. Even in Holland the debate rages about the arbitrary nature of the 75 age limitation; some groups want the pill available to everyone in a similar way as once described by Philip Nitschke who argued that it could be made available in supermarkets. Like Anny Shaw, perhaps the 'no age restriction' lobby will accept that any advancement is a 'step in the right direction' because it moves Dutch society one step closer to their goals.

Associate Professor Dr Bill Sylvester made similar observations that the proposed Victorian assisted suicide law would also exclude people with Alzheimer's disease. Sylvester is not directly advocating for the inclusion of Alzheimer's but is simply observing the dilemma that this particular disease creates for the patient in fulfilling the informed consent criteria. This is another issue that has come under public scrutiny in Holland where it is possible to request euthanasia via an advance care directive made prior to the onset of the disease so long as the patient is able to confirm that request when it comes to the crunch.

Then there is the question of people with psychiatric illnesses. Journalist, Andrew Denton recently said that he had come to the conclusion that access to euthanasia should be available to people with a psychiatric condition. The Victorian proposal expressly denies such access - or does it?

The proposal suggests that, 'Suffering as a result of mental illness only does not satisfy the eligibility criteria.' However, it also says that, 'Patients whose decision making capacity is in question due to mental illness must be referred to a psychiatrist for assessment.' So, mental illness is not excluded.

This provision is therefore very similar in practice to the Oregon statute. Like in Oregon it relies on two uncontrollable variables: firstly, that the primary doctor identifies the presence of a mental illness of some sort and therefore refers the patient to a psychiatrist and, secondly, that the psychiatrist is able to confirm the presence or absence of a mental condition that would impair the patient's capacity for judgement. The Victorian Committee heard expert testimony from Prof David Kissane about the failures in the practice of psychiatric assessment under the operation of the now defunct Northern Territory euthanasia law in the mid-1990s. It should also have been well aware of the prevalence of depressive illnesses in those applying for assisted suicide in Oregon and the wide disparity between that percentage and those who are actually referred for assessment.

So, winners and losers in the initial argy-bargy of where the line in the sand is first drawn. In Canada, in the wake of the Supreme Court decision in Carter and the court direction that the parliament must act, we have seen organisations who have long supported change, 'going-for-broke', even to the point of pushing for child euthanasia right from the start. But in normal legislative circumstances where there is no imposed imperative, those advocating for change must appear to be more reasonable lest, by virtue of over-reach, they attempt to go too far and fail as a consequence.

The recommended legislative framework put forward by the Victorian Committee appears to be an assisted suicide regimen with euthanasia as a 'back up' for those who are physically incapable of taking the lethal dose themselves:

'Assisted dying should in the vast majority of cases involve a doctor prescribing a lethal drug which the patient may then take without further assistance. The singular exception is where people are physically unable to take a lethal drug.

'The Committee believes people should not be prohibited from accessing assisted dying because they are physically unable to take a lethal drug. In this case, a doctor should be able to assist a person to die by administering the drug.'

The proposal is silent on what this might mean in practical terms. But it is a far cry from the 59% odd of submissions who called primarily for euthanasia and not assisted suicide.

Naysayers will observe that both actions come under the general term 'assisted dying', but most people who made submissions were honest enough to use the correct terminology and most talked about euthanasia. This is understandable given that the discussion in Australia, since ever the issue has been in the public square, has focussed on euthanasia and not assisted suicide.

That in itself is somewhat of an anomaly, given that both in the UK and the USA, assisted suicide has dominated the debate and not euthanasia. Regardless, it smacks somewhat of paternalism that the committee should resolve that they know best how people who want to be made dead should be made so. Or perhaps it is simply about taking the legislative line of least resistance.

Whether or not the committee's recommendations are adopted by the Victorian Government and, if so, what the final form of the bill will be, remains to be seen. We can be certain, however, that Anny Shaw and others who were hoping for something more will be disappointed. Shaw is perhaps naïve to have expected anything more. 'Tired of life' euthanasia, even though it was first mooted in Holland more than 20 years ago, is only now commanding public and possibly legislative attention. It takes time for any society to become normalised to patient killing and assisted suicide to the point where hitherto taboo extensions become feasible and reasonable.

The committee seems to be commenting to dispel the incremental nature of such laws when it asserts that, "The framework should not establish an unencumbered right to assisted dying. Rather, it should make the practice legal if all criteria are met."

"There should be no presumption of access to assisted dying. Access will be determined by the careful assessment of a robust set of criteria by those best placed to do so: the person themselves, a primary doctor, and an independent secondary doctor."

Saying so doesn't make it so. Even though euthanasia in Holland remains a criminal act except in prescribed circumstances, as Professor Theo Boer recently observed, it is now considered as a 'patient's right' even though the law sees it differently:

"For a considerable number of people, euthanasia has become part of their lifestyle; it has to do with controlling your destiny. In the beginning euthanasia was seen as a last resort in a situation of extreme physical suffering. Now, increasingly, euthanasia is considered to be a patient's right and is considered by some even to be a fashionable death."

Even here we are not talking about an 'unencumbered right' as the committee puts it. Everyone knows that access is subject to some sort of process, even in the Low Countries. This is a fudge by the committee who can do nothing to stop the development of the public perception that people will indeed believe they have a right of access to being made dead.

That is where the likes of Shaw and others whose wishes do not form part of the proposal will draw some hope. The qualification boundaries are not only porous in nature, they are also likely to be tested at some point when public acceptance has grown and where a new campaign emerges questioning why identified others who are also suffering are not included.

That inevitable engagement will be very similar in structure to the current debate; parading difficult cases before the media and arguing for a compassionate response. The only difference will be that amendment to the current law will be a far easier exercise than it will be to create the first beachhead.

That there will most likely always be people who are excluded makes an ass out of any law that supposes itself to be based on compassion for people who are suffering.