This is a summary opinion on some of the provisions of the Tasmanian Voluntary Assisted Dying Bill 2013. It is not an exhaustive commentary but merely an indication of some of the principle concerns:
Can be read in conjunction with the bill found HERE.
The title of the bill is essentially a soft-sell for state supported suicide or state supported killing.
What the Act allows:
The bill provides both for Physician Assisted Suicide and Euthanasia - but you will not find mention of either by name anywhere in the bill.
The only mention of suicide is by way of a fabrication to the effect that, even though self-administration would be suicide - you can't say that!
4. Application of Act
(1) Nothing in this Act authorises a medical practitioner, or any other person, to end the life of a person by any means, except in accordance with this Act.
(2) Any action taken in accordance with this Act does not, for any purpose, constitute suicide, assisted suicide, killing, mercy killing, homicide, murder or manslaughter.
This clause confirms two things: firstly, that, regardless of the gloss, it is either killing or assisting in suicide; and, two, that the bill, once enacted, provides an immunity from prosecution under the homicide provisions of the Tasmanian Criminal Code.
Certainly, subclause 40. (2) would seem to give some recourse to the Criminal Code, but the proof of conduct as expressed seem to me to be virtually impossible to prove and, for someone deliberately intent upon circumventing some provision of the Act, easily obfuscated:
2) The penalties in this Act do not preclude criminal penalties applicable under another Act for conduct which is inconsistent with the provisions of this Act.
Moreover, section 31 provides immunities from prosecution; 31(2) for actions 'in good faith and without negligence in compliance with this Act'. Proving 'bad faith' or negligence may be problematic - particularly as the prime witness is deceased!
The imperative, 'must':
The term 'primary medical practitioner mustâ€¦' appears 17 times in the bill. The bill does not require a medical practitioner to undertake the processes in respect to the applications of this bill; he or she can refuse; however there is no simple statement to that effect.
In the current South Australian bill, the Ending Life with Dignity Bill 2013, the conscientious objection clause is expressed as follows:
29â€”Persons may decline to carry out or assist in carrying out voluntary euthanasia request
10 (1) A medical practitioner may decline to carry out a voluntary euthanasia request on any grounds.
(2) However, if a medical practitioner who has the care of a person declines to carry out
such a request, he or she must inform the person that another medical practitioner may
be prepared to consider the request.
Of course, this is not acceptable either, but it does at least give something of an 'out' for a medical practitioner.
Conscientious objection of a health care provider
Definitions in the bill:
health care provider means â€“
(a) a person who provides a prescribed health service; or
(b) a person who holds himself, herself or itself out as being able to provide a prescribed health service;
primary medical practitioner, in relation to a person, means a medical practitioner who accepts primary responsibility for the treatment of the person's eligible medical condition;
The meaning of the term Prescribed Health Serviceis not included in the bill, however the term health care provider covers a medical practitioner and also hospitals, clinics etc.
The primary medical practitioner is also a health care provider. As such, he or she could be considered to have a conscientious objection under 31 (2 to 4).
The bill provides (under Sections 31 (2)(d) & 31(4)) that hospitals, clinics, etc. can refuse to have these 'procedures' carried out on their premises so long as they have a policy in force to that end and advise all health care providers who use their facility that this is the case. 31 (2)(b) precludes, say, a Catholic nursing home from any censure of a visiting medical practitioner because he or she has been known to have assisted a suicide or euthanasia under the Act.
Nevertheless, this does pose some major issues for Tasmania and the working of this Act given that the major hospital and major aged care providers are Catholic.
Much has been made over recent years (going back to McKim's euthanasia bill in 1999) about residency and the fear that Tasmania could become a macabre tourist destination of another kind.
This bill includes a residency requirement. However, this requirement is lame to say the least and easily complied with (read: circumvented).
10. (2) For the purposes of subsection (1)(b), evidence of a person's Tasmanian residency may include, but is not limited to, evidence that the person currently â€“
(a) holds a driver licence issued under the Vehicle and Traffic Act 1999; or
(b) is enrolled to vote in Tasmania at a State level.
Drivers Licence: It has been confirmed that the Transport Department will issue a transfer of Driver's Licence even on the day someone moves to Tasmania so long as that person can produce a receipt showing payment of rent for a domicile.
Enrolled to vote: The Tasmanian Electoral Commission says: You are eligible to enrol for Federal and Tasmanian elections ifâ€“you are 16 or 17 years of age or older; and you are an Australian citizen; and you have lived at your present address for at least the last month.
Under the two examples cited in the bill, one only need be a 'resident' in Tasmania for perhaps only a day or so prior to making the first verbal request. Because the bill also provides for other possible unnamed means of proof, it is not possible to define this residency requirement further; but, at the very least, a person need only be a resident for a very short while.
This clause is meaningless.
Eligible Medical Condition: (section 11)
(1) For the purposes of this Act, an eligible medical condition is an incurable and irreversible medical condition, whether caused by illness, disease or injury â€“
(a) that would result in the death of a person diagnosed with the medical condition and that is causing persistent and not relievable suffering for the person that is intolerable for the person; or
(b) that is a progressive medical condition that is causing persistent and not relievable suffering, for a person diagnosed with the medical condition, that is intolerable for the person â€“
and that is in the advanced stages with no reasonable prospect of a permanent improvement in the person's medical condition.
(2) For the avoidance of doubt, a person does not have an eligible medical condition solely because of the age of the person, any disability of the person or any psychological illness of the person.
Note that the wording avoids the use of the term 'terminal illness', principally because the design of the bill is for a broader category, despite the news reports.
'Advanced stages' tends to suggest that the person is close to death - but this may not necessarily be the case. An 'advanced stage' could simply be any stage other than the initial stage. Motor Neurone Disease, for example, even if 'advanced' in terms of the progression of the disease, would not necessarily suggest that death is imminent nor would it suggest that the symptoms are chronic. Further, though there appears to be only a slight risk of any wrong diagnosis under this bill, the risk of a wrong prognosis remains ever a problem.
Note well: The person making the request does not necessarily have a terminal illness nor be in the terminal stage of a terminal illness!
Subjective terms: Like all bills of this type, this bill includes subjective terms such as 'not relievable suffering for the person that is intolerable for the person' and 'no reasonable prospect'. This leaves the request entirely at the subjective reasoning of the patient - even if the primary medical practitioner does not agree with the patient's decision!
Moreover, there is no provision for the primary medical practitioner to refuse to process a request if, in his or her opinion, the patient's suffering is not unrelievable or intolerable. Remember, the primary medical practitioner could be a specialist who is managing the persons presenting condition, disease or injury and may well be highly experienced in managing such pain and suffering - but he or she cannot refuse a claim on the basis that the person's symptoms can be addressed.
Note well: subsection 2 is essentially only there to try and counter the claim that vulnerable people will be at risk. However, the use of the word 'solely' invites the observation that a person may claim that their age, psychological illness or disability have created an intolerable situation.
Potential risks associated with the administration of medication
The primary medical practitioner is charged with ensuring that the patient makes an 'informed decision'. Part of that process is described (and repeated at different stages of the process) as ensuring that the patient understands the potential risks and 'possible complications'.
Given that there is provision for the patient to self-administer, we can assume that the poison will be ingested (that is, not delivered by injection).
There have been recorded cases in Oregon and in The Netherlands where ingestion has not resulted in death at all; some where the patient eventually died of 'natural causes' and some where other steps were taken to end the patient's life.
The primary medical practitioner is charged to discuss with the patient what he or she will do if a complication arises (ie: the patient does not die). This is curious in one sense at least in situations where the doctor is not present. The bill says he or she must be 'on the same premises'; but this is simply another example of the designers of the bill trying to deal with known problems/objections with the Oregon legislation (where very often a doctor is not present and is not required to be under the law).
Given that the intention is death, one would not expect the patient to ask the doctor that he or she be revived and restored if the poison fails. Given also that the Act intends the death of the person and provides immunity for doctors who comply, it seems entirely possible that the doctor could take some other action to ensure that death occurs. Even a pillow smother in such circumstances would appear to be licit. In any action and in any case, the same doctor completes the death certificate and can hide any or all of the facts with confidence.
The role of the Primary Medical Practitioner
The bill does not further define this role. It would seem obvious, however, that this would be the person's own doctor or it may also be the specialist who is looking after the person's presenting condition.
Changing doctor (other than for a specialist where a referral may be required) is quite simple: simply attend a new medical practice or make an appointment with a new doctor.
This bill must be seen by Dr Nitschke as an early Christmas present! A year or so back he made it quite clear that he intended to set up a special clinic so as to work under the new Tasmanian euthanasia law.
Moreover, there would be no legal problem with him also setting up a 'B & B' for his prospective mainlander euthanasia or assisted suicide clients who want to 'stay a while' in the Apple Isle to qualify for residency in terms of this law. A death industry is a real possibility here.
Once the Primary Medical Practitioner receives an 'initial oral request' from a patient, he or she 'must' follow through on the procedures described in the law.
It is not an option to refuse to accept the request on the basis that he or she believes that the person is not competent to make such a decision or is not making the decision voluntarily. (Interestingly, later on in the process he or she can make such an observation - more on that later.)
If he or she doubts the person's competency or doubts that their decision was voluntary, he must refer the patient for counselling. This is an easy out. The primary medical practitioner could raise a defence, if questioned later about this provision, that he or she had no reason to doubt either competency or that the request was made voluntarily. This makes a mockery of the referral system.
Assuming that the referral is made to a psychiatrist or other competent counsellor, there is no specification as to how many times said counsellor should see the person or what steps they should take to ascertain the voluntary nature of the request. Psychiatrists will often admit that determining the degree of depression or coercion is a difficult task and not an exact science.
We know from the experience in Oregon that while a significant number of those who died under their Act had clear signs of depression, that few were ever referred for an assessment. We also know that, as the years have passed, less and less referrals are being made; in some years, none. How would we expect Tasmania to be any different?
Subclause 15(3) does say that a primary medical practitioner can refer a patient to any such specialist at any time during the process and for any reason, but this clause has no affect at all on this bill. Firstly, it goes without saying, and secondly, it is optional. Moreover, this also provides the opportunity for a referral to another specialist if, in fact, the original counsellors opinion doubted competency, voluntariness, or both. 16 (2) does suggest that, if the counsellors opinion is negative (to the request) that the primary medical practitioner must inform the person that their initial oral request is no longer an eligible request. However, there is no reporting obligation in this regard and no reason to expect that 'doctor shopping' could not happen in this way.
After 48 hours after the initial request (and following a 'favourable' counselling report if applied), the patient can make a written request.
The second opinion:
Upon signing the primary medical practitioner refers the patient to a second medical
practitioner for confirmation of diagnosis and prognosis. If the second medical practitioners report does not confirm the diagnosis and prognosis of the primary doctor, 20(1) says that he can refer the patient to another doctor.
Only if this third opinion likewise does not confirm the opinion of the primary doctor can the primary medical officer rescind the initial and written request.
Note well: There is nothing to say that the second (and/or third) medical practitioner is entirely independent of the primary doctor.
This is a recipe for doctor shopping and for primary medical practitioners to 'get to know' those potential second practitioners opinion on the subject of euthanasia and assisted suicide so that he or she can make their referral to those whom they believe are most likely to concur both at a professional and ideological level.
After at least seven (7) days have passed since the written request and the primary medical practitioner being in receipt of the favourable second opinion, the patient can make a third request - this time verbally.
This is the most critical request of the three but strange! There is no requirement for any witnesses and no written record (except that the doctor would likely note the event in the medical records - but this could easily be fudged).
Stranger still, the provisions of the bill mean that, once this third request is made, the patient could effectively immediately ask for the prescription to be filled and for his/her death to ensue. Sure, the primary medical practitioner must discuss the issue again in full; but even here, we only have his or her say-so that this actually occurred and that the third and then final requests were indeed made as prescribed.
The prescription: (section 24)
The prescription is to be made by the primary medical practitioner and filled by him or her and the relevant poison is retained by them until the euthanasia is to take place (by the primary doctor) or until the poison is to be handed to the patient for self delivery.
In either outcome the primary medical practitioner is to take note of section 18 (2) (c) wherein he or she will have discussed with the patient what they want to happen if, for some reason, the poison fails to deliver the death (see 24(2)(c) and (3)(b)). The bill is silent on what this action might be.
Clearly, the patient would not want to live and, if they did, the effects of the poison may make their situation far worse. Is the doctor to take action to make sure that the patient dies? If so, what would this action look like? A pillow perhaps? Take note: it is he or she that will fill out the death certificate; it is he or she who can complete the notes as per the law.
Record requirements: (section 28)
The bill sets out the required notations to be made in the person's medical record. Presumably these records are to be updated continually, but there appears to be no problem with all the details being recorded at once, post mortem. As noted earlier, apart from the counsellors opinion the second opinion and the written request, we only have the doctor's word for the remainder.
Note well: 28(h) includes the direction to note any steps taken by the primary medical practitioner when the poison fails to achieve the required end. This is a joke! What doctor is going to self-incriminate if he or she took to the bed pillow? Further, the next subsection directs that the doctor file a note to the effect that he or she complied with all the relevant requirements of the Act. Hardly likely that anyone would say otherwise about their actions! This is meaningless.
Insurance: (section 30)
As we have seen before in other bills, this section directs that the existence of a request or the death of a person under this Act cannot affect in any way either the premiums or the payout under insurance policies.
(1) The sale, procurement or issuing of any life, health or accident insurance, or annuity, policy or the rate charged for any policy is not to be conditional on, or affected by, the making or rescinding of, or the failure to make or rescind, an assisted dying request by a person.
The effect of this clause could be that a person who is intending or has completed the request regimen could take out a life policy immediately prior to their death. Because the policy is not, according to this wording, affected by such a request to die, information about the insured's intention to euthanasia can legitimately be withheld from disclosure in an application form.
(2) The act of a person self-administering prescribed medication to end his or her life in accordance with this Act is not to affect any life, health or accident insurance, or annuity or policy that may be held in respect of the person.
(3) The act of a person to end the life of another person in accordance with this Act is not to affect any life, health or accident insurance, or annuity or policy that may be held in respect of that other person.
Some forms of life policy exclude suicide; some permanently and some for a prescribed period in the policy. These clauses render such provisions null and void and will have an effect upon actuarial considerations for insurance providers.
The Registrar: (sections 32 to 35)
The creation of the Registrar and prescribed functions is totally meaningless. The functions and powers are entirely after the fact - the patient is already dead! A discussed earlier, given that the primary medical practitioner completes all the paper work and that a significant amount of this is entirely on his or her say so, the investigative function (33(b)) is worthless.
Indeed, what if the records were somehow incomplete? Would this indicate foul play, the killing of someone who did not want to die or had not formally expressed such a desire in the statutory form? It may do, but no one else other than the doctor may have been present at the death. Who is going to effectively contradict a doctor's recollection? He or she may simply say that their paperwork was shoddy, apologise and take a light rap and move on.
Note well: The registrar is a toothless position set up simply to make it look as though checks and balances are there to protect the vulnerable. It might be glib to point out, but it is hardly an effective protection if the person is already deceased.
Offences relating to documents generally: (section 38)
This section makes it an offence to 'modify, rescind or re-instate an 'assisted dying document'.
Curiously, subsection (2) talks about such actions in respect to withholding or withdrawing life-sustaining procedures or artificially administered nutrition to either prolong life or hasten death of the patient.
Note well: nowhere else in the bill is this mentioned and certainly not in respect to a request to end one's life. It could be that this might have some application in respect to section 18 (2) (c) - what to do if the medication fails, but this is not specified.
These kind of decisions would usually be expressed in an Advance Care Directive (do not resuscitate etc.) or left to the discretion of hospital medical personnel under their normal operating and ethical guidelines. Apart from any application in 18(2)(c) this provision has no practical application in relation to the bill and is, most likely, simply another example of an attempt to deal with 'known objections.
Offence to coerce or exert undue influence: (section 39)
This is another meaningless clause because it is never likely to be enforceable. Moreover, coercion can be subtle between an abuser and the patient, taking form over many years such as that even the presence of the abuser alongside the patient is sufficient to exert an undue influence that could be entirely undetectable.
Most interesting is the expression of subsection 4 in relation to subsection 1:
(1)A person must not coerce or exert undue influence on another person to make an assisted dying request.
(4) For the avoidance of doubt, subsection (1) does not apply to a medical practitioner in so far as the medical practitioner is complying with appropriate medical standards and any guidelines that apply in the circumstances.
This suggests that there are times that it is appropriate for a doctor to 'coerce or exert undue influence. This may or may not be the case in general medical practice in some limited way; but it is entirely inappropriate in relation to the provisions of this bill.
Subsections (2) & (3) have a curious possible effect;
(2) A person must not coerce or exert undue influence on another person to destroy or rescind an assisted dying request.
(3) A person must not coerce or exert undue influence on a medical practitioner to â€“
(a) perform any function, or exercise any power, under this Act in respect of an assisted dying request; or
(b) refuse to perform any function, or exercise any power, under this Act in respect of an assisted dying request.
This would seem to preclude a relative who finds out about a request under the act and who wants to try to talk someone out of dying. It would also preclude said person from approaching the doctor to the same end.
In our world where suicide is discouraged and where, as a society, we have taken great steps to support talking people out of such actions, this is perverse indeed.
It may also stop a doctor from raising concerns about the possibility of his or her patient being the subject of Elder Abuse and coercion. It is not difficult to foresee a patient making a request in the presence of a silent son or daughter (perhaps they live together) and the doctor suspecting coercion and/or abuse but not having enough to go on to halt the process. Even the counsellor might not observe this. Were the doctor to know a friend or other relative, this clause would seem to stop him or her from making that call or having that conversation.
Probably unintended, these causes may aid and abet elder abuse.
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