Religious 'think tank' flip-flops

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The latest religious right 'think tank' lobby group, the Institute for Civil Society.

I challenge the latest religious right commentators opposing Victoria’s Voluntary Assisted Dying Bill to skip the flip-flopping and engage constructively.

They’re at it again. This time it’s the religious right’s latest ‘think tank’ front group, the impressively-named Institute for Civil Society. Sounds grand, doesn’t it?

But if you look into their lot in life, it’s to protect ‘religious freedoms.’ By that, they mean the right to lawfully discriminate against others of whom they disapprove, while at the same time arguing that they not be discriminated against.

Mark Sneddon and Sharon Rodrick of the ‘Institute’ published an opinion piece in Fairfax Media today.

In it, they slam the Victorian Government’s Voluntary Assisted Dying Bill, which was introduced into the Parliament recently.

They criticize the Bill for inadequate safeguards. (There are no fewer than 68 of them.)

The logical fallacy

They level several criticisms at the Bill to say it's not 'safe'. But they could have advanced any criticism of the Bill to claim, as they do, that “the vulnerable will be at risk” — a logical fallacy as I’ve pointed out before. The "vulnerable will be at risk", by circular definition, if the Bill is printed in black ink (as it is) instead of purple, but they didn't complain about the colour of the ink.

The flip-flop

The point is, they flip-flop because they’re remarkably inconsistent in their position. At the same time as pointing out supposed flaws in the Voluntary Assisted Dying Bill, demanding a much higher standard of proof about a number of things, they completely fail in their opinion piece to even mention — let alone demand the same level of safeguards for — an already-legal and equivalent hypothetical risk for the “vulnerable.”

Equivalent hypothetical risk in operation for nearly 30 years

In Victoria, patients have an inalienable right to refuse any and all medical treatment. No reason need be given, even if the treatment is life-saving. The Medical Treatment Act 1998, currently in force, has several safeguards to protect against coercion or undue influence. In Section 5(1), one doctor and “another person” (who can be anybody) must be satisfied that:

  • “the patient has clearly expressed or indicated a decision”; and
  • “the patient’s decision is made voluntarily and without inducement or compulsion”; and
  • “the patient has been informed” about their condition and “has appeared to understand that information”; and
  • “the patient is of sound mind and has attained the age of 18 years.”
     

They’re all the legislated safeguards for the refusal of life-saving medical treatment.

And how many cases of undue influence have been prosecuted in Victoria over the nearly 30 years the Medical Treatment Act 1998 has been in effect? Precisely none. Not one.

So much for Messrs Sneddon and Rodrick’s avaricious relatives lurking at every bedside.

A new, equivalent hypothetical risk

The Medical Treatment Planning and Decisions Act 2016, which will come into force in March next year and which extinguishes the Medical Treatment Act 1998 at that time, also contains several similar safeguards for the refusal of life-saving medical treatment.

In witnessing an Advance Care Directive (Section 17), the two signatories, only one of whom must be a medical doctor, must certify that:

  • the person “appeared to have decision-making capacity” in relation to the documented decisions; and
  • the person “appeared to understand the nature and effect of each statement”; and
  • “the person appeared to freely and voluntarily sign the document”; and
  • “the person signed the document in the presence of the two witnesses”; and
  • “the witness is not an appointed medical treatment decision maker for the person.”*
     

In Section 52 of the Act, a health practitioner is forbidden to administer medical treatment if they are aware the patient has refused it, however (lawfully) refused.

This Act was passed in the term of the current Parliament: that is, by the same State MPs who are now considering the Voluntary Assisted Dying Bill.

There was no great fracas over the sensible safeguards spelled out in the new Medical Treatment Planning and Decisions Act. There was no onslaught of “crisis!” op-ed screeds published in newspapers. There were no countless hours of talking heads tut-tutting and painting doomsday scenarios.

It was passed by the Parliament and accepted by the people as striking the right balance.

No safeguards at all in many cases

And that’s it: the sum-total of safeguards to refuse life-saving medical treatment in Victoria. However, if the patient refuses medical treatment verbally, there are no mandated safeguards at all in either old or new Act, because the statutory safeguards apply only to refusal given in writing.

Yet despite all this, Messrs Sneddon and Rodrick rail against safeguards against coercion and elder abuse only in regard to the Voluntary Assisted Dying Bill, in which the safeguards are of a significantly higher calibre, with, for example, mandatory multiple doctor opinions, documentation trail, multiple requests, no go-ahead until approval by an external authority, notifications of numerous kinds, oversight by a specially-established panel, and so on.

It’s obvious what a flip-flop Messrs Sneddon and Rodrick’s demands are in respect of decisions that will foreseably result in death.

Another embarrassing flip-flop

Messrs Sneddon and Rodrick particularly also complain at length at the supposedly ‘lax’ definition of decision-making capacity in the Voluntary Assisted Dying Bill.

That’s a major and embarrassing flip-flop. Here’s why.

The section of the Voluntary Assisted Dying Bill that stipulates those requirements (Section 4) is the same section number 4 that governs the right to refuse of life-saving medical treatment in the Medical Treatment Planning and Decisions Act 2016. Only a few words have been changed to alter the context from refusal of treatment to consideration of assisted dying. Otherwise, the Sections are identical.

Messrs Sneddon and Rodrick don't point this out in their opinion piece. Indeed, I was unable to find online any evidence that they had published any complaint about the provisions when the Medical Treatment Planning and Decisions Act was in debate, nor since. If they have, I’d be happy for them to point it out.

Is it all a strategic ruse, anyhow?

It’s pertinent to ask if the objections are a ruse anyhow, because, as Andrew Denton has rightly pointed out, a key opponent strategy is not to give an outright “no” to assisted dying Bills, but to say only “not this Bill” and create an atmosphere of FUD (fear, uncertainty and doubt) so that it is defeated.

A typical ruse example

By way of example, I’ve published an account of how Victorian MP Daniel Mulino published outrageous misinformation about assisted dying. As a result, we had an extended conversation, during which he acknowledged that he had indeed published misinformation. At the end of the conversation I asked if he could support the Government’s Voluntary Assisted Dying Bill. (He’s a member of said Government.)

No, it’s too liberal, he said, pointing to Oregon’s Death With Dignity Act, now in force for nearly 20 years, as a more conservative approach. So I asked him if he would support a Bill like Oregon’s.

No, he said, there were still concerns about it.

By now you’ve spotted the merely incremental withdrawal of supposed possible support. So I asked him outright if there was any form of assisted dying Bill he could support.

The relevant word within a long discourse: No.

And there’s the answer that belies the political strategy. It doesn’t matter one whit what provisions are included in an assisted dying Bill, just criticize a bunch of provisions and create FUD to defeat it.

 

A direct challenge to Messrs Sneddon and Rodrick

If “doubters of this Bill” are genuine about permitting assisted dying in some defined circumstances, the duty is on them to define those circumstances and recommend wording to enact it.

And that’s the challenge I throw down directly to Messrs Sneddon and Rodrick. Don’t just bitch and gripe: define precisely what provisions and wording you think would be acceptable.

If you fail to stipulate what you deem acceptable, then your opposition to “this flawed Bill” is, like the supposedly ‘soft’ opposition of other campaigners in the negative, merely a ruse.

And that’s rather suggested by your deliberate use of the term “killing” for what most Australians believe to be an understandable and welcome release. But let’s give you the benefit of the doubt… for now.

Will you rise to the constructive challenge, or lurk in the shadows merely making snide remarks and flip-flopping?

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* Section 62 of the Act also requires a doctor to notify the Public Advocate if “significant treatment” is refused — but only if it is refused by a substitute decision maker on behalf of the patient: not by the patient herself. And “significant treatment” is defined as treatments (not non-treatments) which are likely to have a serious impact on the patient (bodily intrusion, risk to life, side effects or distress). “Significant treatment” in the Act does not mean treatment whose refusal may result in death.


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