What you need to know about NSW Voluntary Assisted Dying Bill

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By now most readers of The Catholic Weekly are probably aware that it is likely that the New South Wales parliament will be debating the legalisation of assisted suicide and euthanasia in the next few months. A draft bill called the Voluntary Assisted Dying Bill 2017 (NSW) (the Bill) is currently available for public consultation.  This short article seeks to help people who have not read the Bill to understand what it is all about. In essence, the Bill provides for terminally ill people over the age of 25 who are experiencing severe pain, suffering or physical incapacity, which they deem unacceptable, to request and receive assistance from a medical practitioner to commit suicide. Despite its name the Bill would permit both assisted suicide and euthanasia.

Although the Bill uses different terminology that sounds nicer, when the term “assistance” is used in the Bill it refers to two things: assisting a person to kill themselves and to killing a person. This involves either prescribing or preparing a lethal dose of poison for the patient to take for him or herself or, if the person who wishes to die is not capable of taking the poison for him or herself, to the medical practitioner poisoning the person or giving poison to someone else to administer It is always difficult to critique euthanasia legislation. It is a little like critiquing a Bill to permit wife beating but only in certain circumstances and within limits. All assisted suicide or euthanasia legislation involves intentionally killing a person and, by introducing an option of intentional killing, all euthanasia involves a fundamental change in the relationship between a doctor and his or her patient. However this short article does not focus on those broader arguments but looks at the specific issues in the Bill.

Who can ask for help to commit suicide or to be killed?

The Bill provides that only people with “decision making capacity” can receive “assistance.”: It is a low bar. The person must have the capacity to understand their illness, the treatments available and the consequences of their decision and the person must be able to communicate all of this in some way. A person suffering from treatable depression might not be ruled out under this test. Only people with a “terminal illness” are supposed to be able to receive “assistance.” This means that the patient will die within 12 months from the illness according to “reasonable medical judgment.” The difficulty with this is that assessing life expectancy is very imprecise and “reasonable medical judgment” is no guarantee of accuracy or certainty.  Kissane reviewed the error rate during the Northern Territory euthanasia experiment and the error rate in medical practical practice and concluded that “it would be impossible to
safely legislate for doctors to kill.”

To receive “assistance” the person must be at last 25, suffer from a terminal illness, have a medical opinion that they suffer from a terminal illness and “in the course of the terminal illness” the person must be “experiencing severe pain, suffering or physical
incapacity to an extent unacceptable to the patient.” Again this would not seem to exclude “pain, suffering or physical incapacity” resulting from treatable depression experienced “in the course of the terminal illness.” This Bill requires patients to be made aware of available treatments – not that they access them. Given that to access “assistance” the person must be “experiencing severe pain, suffering or physical incapacity to an extent unacceptable to the patient.” the Bill presents a positive disincentive to people who wish to die from availing themselves of available treatments and pain relief.  Patient autonomy is important. Today a patient can choose whether or not to accept treatment, palliative care or pain relief. However choosing to do so may impair their decision making because when we are in pain all we want is for the pain to stop. Death can seem an attractive option when you are in severe pain. Evidence show that pain relief and palliative care significantly reduce requests for euthanasia. For the State to condone helping a person commit suicide or the killing of a person is a major step to take. There is a real question to be asked about whether it is reasonable for a patient to seek assistance from someone else to commit suicide where the patient has refused first to avail him or herself of available treatment, pain relief and palliative care, particularly where such treatments could stop the person’s pain or cure their illness.

Will people “go softly” or die “with dignity”?

Euthanasia advocates like to  describe assisted suicide or euthanasia as “going softly” or “dying with dignity “  Whilst these terms are very vague they seem to assume that death by poisoning will necessarily be quick and painless. The Bill provides for ‘[a] primary medical practitioner” to assist a patient to die. Doctors are not presently trained to cause a person to die. The human body generally strives to stay alive. Many people with terminal illnesses have been on pain relief for a long time and this can result in high tolerances developing. Unless there are specifically trained “primary medical practitioners” – and even then – there are likely to be complications with assisted suicide and euthanasia because they are common. Complications include difficulties in finding a vein to inject a lethal injection, problems with intravenous catheters, difficulties administering an oral drug. spasms, sudden involuntary jerking of muscles, skin turning blue, nausea, vomiting, hiccups, perspiration, extreme gasping, slower than expected death, patients not becoming comatose or waking after becoming comatose.

Where the person can’t kill themselves who can do it?

The Bill provides for a nominee to administer the poison.  The Bill does not require the patient to be of sound mind, not suffering from psychiatric illness or depression and nor does it prohibit a person being pressured into the nomination the nominee.

Preventing financial and other advantages

As elder abuse is a major problem in our society any Bill like this could lead to the ultimate in elder abuse – persuading mum or dad to seek “assistance.” The Bill does provide that assistance should not be given where the medical practitioner knows that some identified classes of people who might obtain a financial or other advantage from the person’s death. Knowledge is required – not suspicion or fear.  There is no duty to inquire even on suspicion. Even knowing that a person outside the classes identified – such as a “friend,” care giver or relative who was not a “close relative” would benefit is no impediment to providing a person with “assistance.”

Examination by multiple doctors

To be given “assistance” the person must be examined by two medical practitioners and a psychiatrist or psychologist. The examination by a “secondary medical practitioner” in reality will provide very little to no safeguard as that person will inevitably be a euthanasia supporter. The legislation contains no proscription on “forum shopping.” The patient can seek out as many “primary medical practitioners” as he or she likes and the patient can be referred to another and another and another “secondary medical practitioner” until support is given for access to assisted suicide or euthanasia. This has been the experience in other jurisdictions where such “safeguards” exist and it was the experience in the Northern Territory.

The requirement for examination by a psychiatrist or psychologist is also an illusory safeguards because one examination is insufficient to determine a patient’s psychiatric well-being. People who want to die tend to see these “safeguards” as hoops to get through. The experience of the Northern Territory is that patients did not fully disclose their history to the psychiatrist who was supposed to be acting as a “safeguard.” In any event the psychologist or psychiatrist is actually given quite a limited remit and there is no requirement for the identification of depression or mental illness which might be causing the person’s suffering or pain – the examination is about soundness of mind, decision making capacity and whether the decision has been made “freely, voluntarily and after due consideration.”  The role of the psychologist or psychiatrist is not the usual role in dealing with a patient – to help them get well.

What about the family?

Elder abuse may be a problem but families finding out only after their loved family member has received “assistance” to die has proven to be another devastating problem where assisted suicide and euthanasia have been legislated. Whilst the patient is required to have “considered the possible implications of the patient’s assisted death for the spouse or de facto partner or family of the patient” there is no suggestion let alone a requirement for anyone to contact any relatives or friends of the person wanting to die. Exactly what “implications” the person seeking “assistance” ought to have considered is also not made clear. Where a person is electing to kill themselves or to be killed it would be sensible for there to be greater consideration of the role which a spouse or de facto partner or family of the patient might have in discussing such a decision.  The legislation should provide for confirmation that spouse or de facto partner or family of the patient is aware that the patient is seeking access to assisted suicide.

Protection from liability

As we have seen medical diagnoses, assisted suicides and euthanasia can be negligently performed. This Bill provides very broad protection from criminal or civil liability to the primary and secondary medical practitioners, the psychologist and psychiatrist, a health care provider and a nominee for participating or refusing to participate in the provision of assistance under the Act. This gives protection from any liability to those who negligently provide “assistance.”

False death certificates

The Bill requires the production of false death certificates. The true cause of death – suicide or euthanasia – must not be recorded.

Conclusion

All in all this is a very bad Bill. Let you parliamentarians know that they should vote against it.