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Notre Dame University welcomes Professor Margaret Somerville via its website.

In two opinion pieces recently published in the ABC’s conservative Religion & Ethics blog,1,2 Margaret Somerville, Professor of Bioethics at Notre Dame University, railed against marriage equality law reform using reasoning that I contend fails not only appropriate standards of ethics argument but indeed her own stated standards. Here’s why.

Railing against careful and reasoned language

In two ABC opinion pieces, Margo (as she refers to herself) railed extensively against the term ‘marriage equality,’ arguing that it ought to be referred to instead as ‘same-sex marriage.’ She volunteers that the real motive for her preferred term is that in her opinion fewer people will support ‘same-sex’ marriage than will support ‘equality’ of marriage.

Margo quite overlooks the fact that some folks deliberatively eschew gender identity or are asexual, yet may wish to honour a loving, life-long relationship through marriage. There’s also the issue of a change of gender identity within marriage, not just when entering into marriage.

The goal of Australian marriage law reform is a single, revised Act which articulates a uniform, equal set of provisions for marriage regardless of sexual orientation or gender identity: not a separate Act which permits a different version of marriage only for same-sex-attracted people.

Therefore, ‘marriage equality’ is indeed an appropriate expression for revised legislation while ‘same-sex marriage’ is less so.

“But what about the children!?”

Margo also railed extensively against marriage equality because, she claims, marriage is primarily about the rights of children, not the married couple.

However, the Marriage Act3 makes no assumptions about the marriage being for the purpose of producing children. Indeed, this would be foolish as it would preclude infertile couples from marrying. Here’s the entire definition of marriage under the Act:

“Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” — Marriage Act 1961 (as amended)

Sure, the Act does have a couple of things to say about children, but in relation to the status of a legally adopted child, and child ‘legitimacy’ (which confers rights to use the family name and inherit titles, for example).

While the Act provides largesse for religious marriage celebrants to include any wording they deem appropriate (and which might cover the subject of procreation) in a marriage service, the minimum required civil celebrant wording is:

“I call upon the persons here present to witness that I, (first and last name), take thee, (first and last name), to be my lawful wedded wife/husband.” — Marriage Act 1961, S45(2) [or words like it]

No mention of children there, either. Section 1A.3 of the Marriage Regulations4 requires a marriage celebrant (religious and civil alike) to recognise “the importance of strong and respectful family relationships.” Notice again the absence of the presumption of producing children.

No necessary connection between children and marriage

Separate State and Territory Acts provide for the recognition of de facto relationships, over which the Commonwealth has no special jurisdiction. While recognised by the state these relationships are legally distinct from marriage.

In terms of unions that Australians willingly establish, Australian Bureau of Statistics data shows that:5

  • Around three quarters of marriages are now conducted by a civil celebrant rather than a religious one; and
  • Around one third of all Australian births are now to non-married partners.

 
It’s obvious that many marriages are now non-religious, that they can be childless, and, conversely, that many children are born in the absence of marriage. There is no necessary relationship in either direction between marriage and children that underpins Margo’s contentions.

No necessary link to assisted reproduction, either

Margo then goes on to rail against assisted human reproduction (surrogacy, gamete donation and IVF), complaining that non-hetero married couples would have to ask for such help to produce children. But, like the child argument itself, this is not unique in any way to marriage. De facto couples and even single women can ask for reproductive assistance, as can infertile hetero couples within marriage. As with children, assisted reproduction and marriage are not uniquely entwined as Margo wrongly argues: they are separate in law and practice even if the link is critical to some couples.

Why the confected 'necessity'?

So why then, does Margo go to such lengths to instil ‘children’ as central to the purpose of marriage? A potential explanation is that her expressed views, while reflecting neither law nor practice, are consistent with her Catholic faith. Catholic tradition is very deeply steeped in the notion that marriage is primarily for the purpose of procreation.

In her 2015 Bird on an Ethics Wire book, Margo invokes the 'would-if-they-could' defence for opposite-sex couples who want to marry but are intfertile (while remaining mute about married couples who expressly don't want children). She fails to articulate any sound reason as to why this is a different 'would-if-they-could' argument from same-gendered or non-gendered partners, except to argue, offensively, that same-sex partners are socially infertile for “lack of an opposite-sex partner.” In her ABC opinion pieces she simply says the hetero version is “symbolic.” Curiously for an ethicist, she fails to reflect on who gets to decide which are valid symbols and whether any symbolism ought to be mandatory for everyone.

Margo asserts that marriage between opposite-sex partners is ‘traditional.’ I say, good on her for personally sticking to a tradition she thinks important: but ‘tradition’ is a poor foundation for continuing to impose historical views on Australians who are not Catholic nor any longer support those views… which is the great majority of us.

The bogeyman argument

Margo then makes vague claims that marriage equality ‘takes away children’s rights’ and causes ‘harms.’ The ‘harm’ she does articulate is the “right to know one’s biological parents.” She speaks of anonymous gamete donation, but fails to note that it occurs equally both inside and outside of — and therefore isn’t conditioned by nor conditions — marriage. Therefore, any “right to know one’s biological parents” is, like children themselves and assisted reproduction in general, entirely independent of the marital status of the parents and is of no special force or relevance in marriage equality debates.

The not-as-good-as-heteros argument

Margo then promotes the importance of the “complementarity in parenting between a mother and father,” with the innuendo that same-sex parents are at least a much lesser standard for raising children, if not unsuitable altogether. Let’s examine this hoary old chestnut, particularly in relation to ‘expert’ evidence Margo proffered in a USA Court case.

Court assessment of Margo’s ‘evidence’

Historically, Iowa’s statute §595.2 restricted marriage to between only a man and a woman. A series of Iowa Court cases overturned that limitation in 2006–9. Margo and two of her colleagues from McGill University’s School of Religious Studies were advanced to the court as ‘expert witnesses’ against the reform, in relation to the ‘perils’ of marriage equality including the ‘harms’ to children. Here’s what the Iowa District Court concluded:6

“Though they may have expertise in certain areas, such expertise is insufficient to qualify Ms Somerville [and her two colleagues from the School of Religious Studies] to answer the particular questions that they are asked. Though these experts desire to make statements regarding gender, results of same-sex marriage on children and the universal definition of marriage, they do not appear to possess expertise in relevant fields such as sociology, child development, psychology or psychiatry. Ms Somerville specifically eschews empirical research and methods of logical reasoning in favour of ‘moral intuition.’ She has no training in empirical research and admits having no knowledge of existing social science research relevant to this case. She concedes that her views do not reflect the mainstream views of other ethicists.”

and

“The views espoused by these individuals appear to be largely personal and not based on observation supported by scientific methodology or based on empirical research in any sense.”

and

“…the Court concludes that these individuals are not qualified to testify as experts regarding the issues in this matter.”

The Court then expressly identified substantive harms that accrue to non-heterosexual partners through denial of marriage.

The case then went to Iowa’s Supreme Court. In a unanimous decision, the Supreme Court upheld the District Court’s determination, noting that:7

“The research appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else.”

and

“Many leading organizations, including the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America, weighed the available research and supported the conclusion that gay and lesbian parents are as effective as heterosexual parents in raising children.”

and

“For example, the official policy of the American Psychological Association declares, ‘There is no scientific evidence that parenting effectiveness is related to parental sexual orientation: Lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for children.’”

So much for Margo’s ‘authority’ on the subject of marriage equality.

Those interested in a thorough rebuttal of Margo’s arguments against marriage equality might be interested to read papers by Scoff F. Woodcock of the University of Victoria (BC), an Associate Professor specialising in normative and applied ethics,8 and Timothy F. Murphy of the University of Illinois, Professor of Philosophy in the Biomedical Sciences specialising in professional ethics, assisted reproductive technologies, medicine and sexuality.9 Both these Professors hold earned doctorates in philosophy; whereas Margo, according to her own biography, holds earned academic qualifications in pharmacy and law, but none in philosophy or ethics.

The importance of relevant and persuasive facts

In an important recognition, a highly-published ethicist once wrote that:

“We sometimes overlook the importance of having good facts in dealing with ethical issues. This is a serious mistake. Good facts (including, if necessary, research to establish them) are essential to good ethics, which, in turn, is essential to good law.” and “Good ethical and legal ‘facts’ start with primary sources that are up to date and accurate.” [Italics are original]

That ethicist was… Margo Somerville.10 My view is that Margo has failed to live up to her own standards by getting some fundamental facts expressly wrong and misrepresenting others with innuendo whilst failing to mention readily-available and widely-agreed facts that contradict her thesis.

Also surprising is that she continues to opine against marriage equality law reform in Australia using the same opinions that were publicly and expressly rejected by a USA court; the same opinions that have been insightfully dissembled and rebutted by appropriately-qualified academics via analyses published in professional peer-reviewed journals.

Conclusion

An Iowa Court has determined that Margo Somerville’s views on marriage equality are largely personal and eschew empirical research and methods of logical reasoning in favour of ‘moral intuition.’ (More on ‘moral intuition’ in another blog.) Further, they are at odds with readily available research evidence. Her opinions then are not founded on scholarly verification and fail to reflect the highest standards of thought and deduction.

I firmly believe that Margo is entitled to her opinions. However, it is my view that appeals for her marriage equality opinions to be acclaimed on the basis of the authority bias — as “Professor of Ethics at Notre Dame University” and “a preeminent public intellectual in Bioethics” — are unjustifiable.

And if the ABC chooses to publish any more of Margo’s nonsense about ‘the perils of marriage equality to children,’ I might just ask for a refund of my twelve cents a day.*

-----

Up next: Who is Margo Somerville? Up later: Why is she so comprehensively wrong on assisted dying law reform?

* The ABC (Australian Broadcasting Corporation) is the nation’s public broadcaster and advertises that it provides its services for a mere twelve cents a day from each of the country’ residents.

 

Footnote: yet another fundamental (and simple) fact wrong

You’d think that being an accomplished Commonwealth legal scholar that Margo would understand the fundamental structure of Commonwealth legislatures.

But in her ABC missives against marriage equality, she concluded by remarking that same-sex couples often lament the lack of marriage equality “…such as we saw in the anguish Senator Tim Wilson manifested in his maiden speech in the Senate.” Here’s a photo of Tim Wilson delivering that speech:

Tim Wilson delivers his maiden speech in ParliamentTim Wilson delivers his maiden speech in Parliament. Video still: ABC News

In Commonwealth countries, the upper house (Australia, federal: Senate) is fitted out in red (the colour of royalty and cardinals), while the lower house (Australia, federal: House of Representatives) is green (the colour of ‘common’ fields).

Immediately evident from glancing at his maiden speech for a mere millisecond is that Mr Wilson is not a Senator: all the livery is green. He is MHR for the Victorian Division of Goldstein, not a Senator for the State of Victoria.

Canadian Parliament housesThe Canadian federal Parliament’s green House of Commons and red Senate (Margo has recently returned to Australia from decades in Canada) Photo: Mightydrake

It’s bewildering then that when Margo saw Mr Wilson’s maiden speech she utterly failed to establish which house he was in, nor took the trouble to examine or test her assumptions before publishing her ‘expert’ opinion about it online.

 

References

  1. Somerville, M 2016, 'Marriage equality' or 'same-sex marriage'? Why words matter, ABC Religion & Ethics, viewed 28 Oct 2016, http://www.abc.net.au/religion/articles/2016/10/14/4556874.htm.
  2. Somerville, M 2016, Same-sex marriage: It's about children's rights, not sexual orientation, ABC Religion & Ethics, viewed 28 Oct 2016, http://www.abc.net.au/religion/articles/2016/10/07/4552500.htm.
  3. 1961, Marriage Act (Cth), Australia, pp. 120.
  4. 1963, Marriage Regulations 1963 (Cth), Australia, pp. 85.
  5. Australian Bureau of Statistics 2015, 3310.0 - Marriages and Divorces, Australia, 2014, viewed 28 Oct 2016, http://www.abs.gov.au/ausstats/abs@.nsf/Latestproducts/3310.0Main%20Features112014?opendocument&tabname=Summary&prodno=3310.0&issue=2014&num=&view=.
  6. Iowa District Court for Polk County 2007, Katherine Varnum et al. v. Timothy J. Brien, CV5965, pp. 63.
  7. Supreme Court of Iowa 2009, Katherine Varnum et al. v. Timothy J. Brien (Polk County), SCC No. 07-1499, Des Moines, pp. 69.
  8. Woodcock, S 2009, 'Five reasons why Margaret Somerville is wrong about same-sex marriage and the rights of children', Dialogue-Canadian Philosophical Review, 48(4), pp. 867-887.
  9. Murphy, TF 2011, 'Same-sex marriage: Not a threat to marriage or children', Journal of Social Philosophy, 42(3), pp. 288-304.
  10. Somerville, MA 2014, Death talk: The case against euthanasia and physician-assisted suicide (2nd Ed.), 2nd Ed. edn, McGill-Queen's University Press, Montreal.

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Back in 2013 the High Court of Ireland rejected a legal bid by multiple sclerosis sufferer Marie Fleming to achieve a lawfully-assisted peaceful death.

The Court naturally relied on expert testimony in reaching its judgement, yet its conclusions included a statement containing significant errors of fact.

The erroneous statement

In its judgement,1 the Court made the following statement:

Above all, the fact that the number of LAWER (“legally assisted deaths without explicit request”) cases remains strikingly high in jurisdictions which have liberalised their law on assisted suicide (Switzerland, Netherlands and Belgium) — ranging from 0.4% to over 1% of all deaths in these jurisdictions according to the latest figures — without any obvious official response speaks for itself as to the risks involved.” [My emphases in bold]

In fact, the Court's judgement is wrong on not one, not two, but three significant matters. But that hasn't stopped opponents of assisted dying law reform from quoting the judgement as though it were factual and persuasive, when it isn't: relying on it because it was made by a High Court—the 'authority bias.'

Consequences

Here are just a few examples of the Court's statement being wielded by assisted dying opponents as though it were conclusive evidence against law reform:

 
These examples illustrate the frequency of quoting the misinformation and how it feeds into and wrongly shapes public policy formation.

Three strikes

So what are the three counts on which the Court's judgement was seriously wrong?

Strike 1: Wrong concept

First, let’s get the concepts right. LAWER is not “legally assisted deaths without explicit request.”

Such nomenclature is an oxymoron. To ‘assist’ is to accommodate, serve or help someone accomplish something. But if there has been no request then one cannot be helping. You can’t ‘assist’ a little old lady across the road if she has expressed no interest in going there: you’d be forcing her across the road. Equally, you can’t ‘assist’ a death if there’s no proper ‘request.’

LAWER in fact stands for “Life-ending Acts Without Explicit Request” (of a competent patient).5 And with the exception of the possible ‘lawfulness’ of the doctrine of double effect, such acts are illegal.

Further, if such acts were legal as the Court’s statement posits, then there would be no need for an “obvious official response” as the Court then concludes. The statement lacks fundamental coherence.

Strike 2: Not ‘strikingly high’

The Court's judgement states unequivocally that LAWER (otherwise known as Non-Voluntary Euthanasia or NVE) rates in Switzerland, the Netherlands and Belgium are ‘strikingly high’, though no comparative yardstick is recorded in the judgement by which one might draw or justify that subjective judgement. Similar 'strikingly high' statements also appear in sections 102 and 104 of the judgement.

There is in fact a scientific study, published in The Lancet in 2003, that provides sound empirical evidence that could have properly informed the Court (Figure 1).6

Non-voluntary euthanasia in seven European countriesFigure 1: The non-voluntary euthanasia (NVE) rates of seven European countries in late 2001/early 2002

As revealed by this study, the NVE rates in Switzerland and the Netherlands were in fact lower than in Denmark, a country which has never had an assisted dying law.

The only country which did appear to have an NVE rate notably higher than the others was Belgium. The research study collected the data for analysis between June 2001 and February 2002. However, Belgium’s Euthanasia Act was not passed by its Parliament until 28th May 2002, well after data collection was complete. Thus, even in describing Belgium’s NVE rate as ‘strikingly high’ compared to a number of other European countries, it cannot be attributed to an assisted dying law because none existed at the time.

In fact, the NVE rate in Belgium had been found to be high back in 1998,7 well before the Bill for the country's Euthanasia Act was even tabled in Parliament.

Further, if assisted dying laws had such effects, it might be expected that the NVE rate would increase the longer that assisted dying laws were in place. In that case the NVE rates in Switzerland (statute since 1942) and the Netherlands (regulation since the early 1980s) would have NVE rates much higher than Belgium’s (statute since 2002). But the exact opposite is true.

Indeed, Rietjens and colleagues8 further concluded in their review of NVE in the Netherlands, Belgium, Denmark and Switzerland that “the use of drugs with the intention to hasten death without an explicit request of the patient is part of medical end-of-life practice in the studied countries, regardless of their legal framework, and it occurs in similar fashion.” The study, published in 2007, would also have been important evidence before the Court.

Strike 3: Not ‘remaining’ high

The Court's judgement states unequivocally that the LAWER (NVE) rate of the three countries ‘remains’ strikingly high. No specific evidence was supplied in the judgement to support this statement. Indeed, the judgement notes:

  • In section 28 that Dutch NVE had been “consistently declining.”
  • In section 91 that “the number of LAWER deaths has significantly declined in both [Dutch and Belgian] jurisdictions.”
  • In section 94 that “the trend in [Dutch] LAWER cases are declining in numbers (from 1,000 in 1990 to 550 in 2005)” and that in Belgium “the number of LAWER cases has declined since legalisation of assisted death.”
  • In section 101 that the NVE rates of both the Netherlands and Belgium had dropped.

 
Despite this clear and repeated evidence, the Court summarises in section 96 that the evidence cannot be “regarded as encouraging or satisfactory.”

But what does empirical research tell us about the NVE trends? In both the Netherlands and Belgium, since assisted dying was enshrined in statute and became effective in 2002, the rate of NVE has decreased significantly (Figure 2).7,9-11 In fact, the rate in the Netherlands is now similar to that in the UK, a country which has never had an assisted dying law and which provides the world’s gold standard in palliative care practice.

Non-voluntary euthanasia rates have decreased in the Netherlands and BelgiumFigure 2: Empirical trends in NVE rates before and after legalisation of assisted dying

These are critical yardsticks by which to judge practice in jurisdictions that have assisted dying laws with jurisdictions that don't. The UK study was published in 2009 and was readily available prior to the High Court’s hearings, yet appears not to have been presented in evidence.

The final (2010) Dutch NVE statistic in Figure 2 may or may not have been available to the Court: it was published in 2012 around the time the Court was taking evidence. The final (2013) Belgian statistic would not have been available to the Court as it was published in 2015.

Conclusion

While the High Court worked diligently within the scope of evidence brought before it:

  • The Court’s definition of LAWER is incorrect and incoherent;
  • Its statement that the NVE rates of the Netherlands and Switzerland are ‘strikingly high’ are evidentially wrong when compared with other countries without assisted dying laws;
  • Its implication that the higher NVE rate in Belgium was caused by assisted dying law reform is evidentially wrong; and
  • Its statement that the rates remain high is evidentially wrong.

 
The High Court's judgement does not provide defensible evidence or argument against assisted dying law reform.

Many lobbyists have repeated these incorrect statements, significantly misleading media, policy makers and legislators.

Now that the facts are readily available it’s appropriate to avoid repeating evidentially wrong statements, regardless of the apparent 'authority' of their source.
 

Summary of facts

  1. LAWER stands for "Life-ending Acts Without Explicit Request". Its practice is similar in countries with and without assisted dying laws.
  2. The NVE rates in the Netherlands and Switzerland are lower than the rate in Denmark, a country which has never had an assisted dying law.
  3. The NVE rate in Belgium appears higher, but was so long before assisted dying law reform and so cannot have been caused by such a law.
  4. The NVE rates of the Netherlands and Belgium have both decreased significantly since their assisted dying statutes came into effect in 2002.

References

  1. High Court of Ireland 2013, Fleming v Ireland & Ors - Determination, [2013] IEHC 2, Dublin.
  2. Boudreau, JD, Somerville, MA & Biller-Andorno, N 2013, 'Physician-assisted suicide: should not be permitted/should be permitted', New England Journal of Medicine, 368(15), pp. 1450-1452.
  3. Somerville, M 2016, 'Killing as kindness: The problem of dealing with suffering and death in a secular society', The Newman Rambler, 12(1), pp. 1-26.
  4. Keown, J 2014, 'A right to voluntary euthanasia? Confusion in Canada in Carter', Notre Dame Journal of Law, Ethics & Public Policy, 28(1), pp. 1-45.
  5. Pijnenborg, L, van der Maas, PJ, van Delden, JJM & Looman, CW 1993, 'Life-terminating acts without explicit request of patient', Lancet, 341(8854), pp. 1196-1199.
  6. van der Heide, A, Deliens, L, Faisst, K, Nilstun, T, Norup, M, Paci, E, van der Wal, G & van der Maas, PJ 2003, 'End-of-life decision-making in six European countries: descriptive study', The Lancet, 362(9381), pp. 345-350.
  7. Bilsen, J, Cohen, J, Chambaere, K, Pousset, G, Onwuteaka-Philipsen, BD, Mortier, F & Deliens, L 2009, 'Medical end-of-life practices under the euthanasia law in Belgium', New England Journal of Medicine, 361(11), pp. 1119-1121.
  8. Rietjens, JA, Bilsen, J, Fischer, S, Van Der Heide, A, Van Der Maas, PJ, Miccinessi, G, Norup, M, Onwuteaka-Philipsen, BD, Vrakking, AM & Van Der Wal, G 2007, 'Using drugs to end life without an explicit request of the patient', Death Studies, 31(3), Mar, pp. 205-21.
  9. Seale, C 2009, 'End-of-life decisions in the UK involving medical practitioners', Palliat Med, 23(3), pp. 198-204.
  10. Onwuteaka-Philipsen, BD, Brinkman-Stoppelenburg, A, Penning, C, de Jong-Krul, GJF, van Delden, JJM & van der Heide, A 2012, 'Trends in end-of-life practices before and after the enactment of the euthanasia law in the Netherlands from 1990 to 2010: a repeated cross-sectional survey', The Lancet, 380(9845), pp. 908-915.
  11. Chambaere, K, Vander Stichele, R, Mortier, F, Cohen, J & Deliens, L 2015, 'Recent trends in euthanasia and other end-of-life practices in Belgium', N Engl J Med, 372(12), pp. 1179-1181.
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Lead author Professor Ezekiel Emanuel discusses the findings of the JAMA study.

Several of the world's foremost researchers in medical end-of-life matters have released a detailed and comprehensive review of the practice of assisted dying in lawful jurisdictions around the world. Published in the Journal of the American Medical Association, it does not support slippery slope hypotheses.

Professors from universities in the USA, the Netherlands and Belgium studied data from government and statutory authority reports, primary scientific studies and other sources to examine how assisted dying has been practiced in different jurisdictions around the world where it is lawful in one form or another: self-administered medication (physician-assisted dying) or physician-administered medication (active voluntary euthanasia).1

Their primary conclusion is that:

"Euthanasia and physician-assisted suicide are increasingly being legalized, remain relatively rare, and primarily involve patients with cancer. Existing data do not indicate widespread abuse of these practices."

Key findings

Key findings include:

  • Public opinion favouring assisted dying in developed countries has been increasing, or remained stable at high levels of approval.
  • The trends seem to correlate with decreasing religiosity in Western countries.
  • The only place where assisted dying approval appears to be decreasing is in eastern Europe, where religiosity has been increasing.
  • Approval amongst physicians seems to be consistently lower than amongst the public.
  • Assisted dying occurs everywhere, including juridictions where it is unlawful (as I have previously reported).
  • Most individuals who choose assisted dying have advanced cancer (as I have previously reported).
  • Supposedly 'vulnerable' groups are not represented in assisted dying figures at rates any higher than their presence in the overall population.
  • Numbers of assisted deaths in lawful jurisdictions continue to increase, but represent a tiny minority of deaths.
    • In jurisdictions where only self-administration is permitted, assisted deaths represent around 0.3% of all deaths.
    • In jurisdictions where physicians may administer, assisted deaths represent around 3–5% of all deaths.
  • Assisted deaths for minors and those with dementia are a very small minority of cases (as I have previously reported).
  • The dominant reasons for requesting assisted death include loss of autonomy and dignity and the inability to enjoy life and regular activities; not physical pain.
  • Doctors still report that honouring a request for assisted death is emotionally burdensome; not a routine or welcomed option.
     

"In no jurisdiction was there evidence that vulnerable patients have been receiving euthanasia or physician-assisted suicide at rates higher than those in the general population."

Complication rates

One aspect of the study is worthy of special mention: the small rate of assisted dying procedure complications. The available data suggests that complications may occur more often for self-administered medication than for physician administration:

  • For self-administration—
    • Difficulty in swallowing in 9.6% of cases
    • Vomiting or seizures in 8.8% of cases
    • Awakening from coma in 12.3% of cases
  • For physician administration—
    • Technical problems such as difficulty in finding a suitable vein in 4.5% of cases
    • Vomiting or seizures in 3.7% of cases
    • Awakening from coma in 0.9% of cases
       

This data is however of Dutch practice in the 1990s, before assisted dying was codified in statute—at a time when practice was poorly defined and a range of drugs, including opioids, were widely used. Now, practice is well-defined with almost universal use of barbiturates. The researchers expressly note that these complication rates may well have reduced.

Further, the authors refer to more recent data from Oregon and Washington which indicate very much lower complication rates (in those jurisdictions for self-administration only):

  • In Oregon, the complication rates are around 2.4% for regurgitation and 0.7% for awakening from coma.
  • In Washington, the complication rates are around 1.4% for regurgitation, plus a single case of seizure.
     

The importance of context

It is worth comparing the complication rates of assisted dying procedures with rates for other medical interventions to provide an appropriate context so that they may be realistically interpreted.

For example, a study of common over-the-counter analgesics for short-term pain management2 found that significant adverse effects occurred amongst 13.7% of ibuprofen users, 14.5% of paracetamol useres and 18.7% of aspirin users.

In another example, an anlaysis of primary research about surgical outcomes found that 14.4% had adverse events, almost half of which (47.5%) were moderate to fatal in severity.3

Conclusion

The study is a solid synthesis of research data and indicates that assisted dying is accessed sparingly and in accordance with the intentions of each legislature.

The adverse event rate for assisted dying appears to be substantially lower than the rate of adverse events in the use of common over-the-counter analgesics and in surgery.

 

References

  1. Emanuel, EJ, Onwuteaka-Philipsen, BD, Urwin, JW & Cohen, J 2016, 'Attitudes and practices of euthanasia and physician-assisted suicide in the united states, canada, and europe', JAMA, 316(1), pp. 79-90.
  2. Moore, N, Ganse, EV, Parc, J-ML, Wall, R, Schneid, H, Farhan, M, Verrière, F & Pelen, F 1999, 'The PAIN Study: Paracetamol, Aspirin and Ibuprofen new tolerability study', Clinical Drug Investigation, 18(2), pp. 89-98.
  3. Anderson, O, Davis, R, Hanna, GB & Vincent, CA 2013, 'Surgical adverse events: a systematic review', Am J Surg, 206(2), pp. 253-62.
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Yesterday in a prominent opinion piece in The Age newspaper,1 palliative care specialists argued that palliative care is imperfect and in need of an injection of funds. I agree on both counts.

Nurse Peter Hudson, and doctors Mark Boughey and Jennifer Philip of the Centre for Palliative Care argued that instead of assisted dying as recommended by the recent Victorian Parliament committee report, increased funding of palliative care is ‘the answer.’

Key arguments

Here are the highlights of their opinion piece:
  1. They refer to assisted dying, a neutral expression now in common use amongst both lay commentators and scholars, as a euphemism. Instead they laboriously refer to assisted suicide (suicide is universally seen as a pejorative term with all its baggage about mental illness and substance abuse), and euthanasia (consistently omitting the qualifier ‘voluntary’).
  2. Dying at home should not be the gold standard (despite the great majority preferring it); instead, dying in hospital can be ‘preferred.’
  3. In a profound lack of self-reflection or consistent logic, they say that assisted dying ought to remain outlawed because its outcomes are uncertain. Even assuming the premise of the statement, this would be an identical argument to ban palliative care, whose outcomes are at least equally if not considerably more uncertain.
  4. They falsely imply that users of assisted dying not infrequently experience “very unfavourable” reactions to the drugs. This is simply untrue and I challenge them to provide the empirical evidence that they state is so very important.
  5. Tellingly, they describe a peaceful assisted death as “sanitised,” signalling their intrinsic disapproval of other’s choices.
  6. They say that focus should remain on increased resourcing of palliative care, failing to mention that the Parliamentary committee’s report indeed recommended increases in palliative care funding and improvement of evidence-based practice. Overseas evidence also reveals improvements in palliative care in jurisdictions with assisted dying legislation. There’s no false dichotomy between palliative care and assisted dying as the authors try to insinuate.
  7. They assume that medical interventionism (what they have to offer) is the correct and normative response, ignoring the fact that some people simply don’t want more interventions.
 

The filibuster

In a journal article recently published by two of the opinion piece authors,2 and repeated in principle in the Centre’s submission to and appearance before the Parliamentary inquiry,3,4 they say that:

“Increased resources and effort must be directed toward training, research, community engagement, and ensuring adequate resourcing for palliative care to benefit many before further consideration is given to allocating resources into legalising EAS to respond to the requests of a few.”

Notice two things about their recommendation—the filibuster.

Maximising what cannot be done

Firstly, they say we must not just ban assisted dying, but that it is dangerous even to talk about it: palliative care must be improved even “before further consideration is given.” The specific purpose of this part of the filibuster is to maximise what cannot be done: to position even mere conversation, let alone actual reform, as ‘unsafe.’

Maximising the delay

Secondly, nowhere in their argument do they provide a single quantitative metric (and which they strongly argue is necessary for the legalisation of assisted dying) by which the palliative care reforms they advocate might be judged: not a single dollar amount nor a single performance benchmark amongst their many recommendations.

How much will reforms cost, how long will they take, and what performance measure improvements would need to be achieved for the expenditure to be judged effective? What performance measures would need to be reached before it was then ‘safe’ to even consider assisted dying? The authors are entirely mute on these critical matters, while making precisely these evidential demands of assisted dying.

So, the opinionists’ argument allows them to indefinitely say that “more improvements are needed in palliative care before we even talk about assisted dying,” because further ‘improvements’ are always possible.

But all that was a ruse anyhow

In any case, the authors say in their submission to the Parliamentary inquiry that there are numerous problems (spurious, I argue) with legalising assisted dying; that they doubt they could be overcome; and then finally “it should not be construed that we would support the legalisation of EAS if efforts were made to address [the problems].”4, page 6 (Curiously, they omit the third, critical statement from their more public opinion piece.)

This truly exposes the classic filibuster… an open-ended call with no metrics, which therefore can be deemed never to have been met. How convenient. But, even if they were met, the authors still wouldn’t support reform. This begs the question:

If the authors are as so firmly evidence-based—as they take pains to emphasise—why would they not support a reform if the evidence endorsed it?

There must be something other than evidence that drives their entrenched opposition to assisted dying: something so important that it renders all their previous arguments null and void. What might that be?

Who are these people, anyway?

It’s informative to answer the question of who these three from the Centre for Palliative Care are. The Centre sounds like a neutral government body. It isn’t. Don’t get me wrong. I have no doubt that these three are skilled and compassionate practitioners and that the Centre delivers good services.

In reality the Center is a section of Melbourne’s St Vincent’s Hospital. That’s an organisation that proudly states “as a Catholic healthcare service we bring God’s love to those in need through the healing ministry of Jesus.”

I believe St V’s to be a high-quality healthcare institution, but too bad if the patient just wants evidence-based medical care and not the ‘healing ministry’ of a religious figure they may not subscribe to.

The reason this is important is this: what the three authors say about assisted dying is entirely consistent with the Vatican’s stance. I have no idea if any of the authors are Catholic, but what would be entirely surprising is if they published anything at odds with the views of the Vatican given their Centre is deeply embedded within the largest Catholic health and aged care service provider in the country.

For clarity and fairness, I once again place on the public record that I am agnostic.

The ‘Catholic card’

Before Messers Paul Russell, Alex Schadenberg and others leap onto their campaigning steeds to megaphone that I’m ‘playing the Catholic card’ (just wait for it!), let me be clear that I specifically am doing precisely that. For sure, The Catholic Church is not the only religious body resolutely opposed to anyone having the choice of assisted dying, but it’s the premier one.

And, Messers Russell et al would be absolutely right to point out that the authors didn’t raise a single religious argument, so let me save them the bother.

Religious opposition dressed up in secular garb

And that’s the point. It’s abundantly clear from multiple sources that religious opponents have actively decided that they will absolutely avoid using religious arguments because they know it will lose them the debate.

Media identity Andrew Denton’s Better Off Dead podcast series makes this avoidance abundantly clear from the Australian perspective. His insights, having attended a global anti-euthanasia conference in Adelaide, are important and revealing. 

From the North American perspective, a study just published by Associate Professor Ari Gandsman of the University of Ottawa in Death Studies5 reports uncanny North American similarities. Assisted dying opponents have actively decided to cease using religious arguments. Instead, their objective is to create an atmosphere of FUD: fear, uncertainty and doubt. It is only this now, they agree amongst themselves, that will keep assisted dying off the statute books. As Gandsman explains (and I paraphrase), religious opponents have moved from ‘it’s a sin’ to ‘but think about all the perceived risks!’

Again, I reiterate that the three opinion piece authors are likely to be fine nurses and doctors (I have never met any of them), but I do say that their incoherent and self-contradictory arguments against assisted dying, remaining opposed even ‘if’ the evidence for it stacks up, is neither their finest work, nor varies one iota from the religious anchor that the Vatican provides to their Centre’s services.

The importance of mutual respect

If a person says to me “I believe assisted dying is wrong,” I respect that view and admire their resolution. For themselves. Including if it is underpinned by religious belief. If you believe that assisted dying, or surrogacy, or other contentious issue is wrong, don’t participate in it. 

But don’t expect that your own view of your own God trumps everyone else’s God—or lack thereof. In Australia for example, the majority of citizens are not Catholic. And most of those who are—three out of four—disagree with the Vatican’s opposition to assisted dying. The Vatican’s view then is not particularly relevant to anyone but its most ardent adherents.

Respect in both directions is warranted but is rather lacking from the more religious end. My argument is not against Catholicism itself. There are very fine Catholics on both sides of the debate, doing their best to live a deliberatively ‘good’ life.

Conclusion

We can do without the incoherent and indefensible nonsense advanced in secular garb by the religiously opposed.

Be clear folks: the FUD campaign is on its last legs. I will be further exposing rubbish arguments posed by those with religious connections but couched in non-religious language.

In the meantime you can see the clumsy, failed attempt at a filibuster by these three opinionists for what it is.

 

References

  1. Hudson, P., Boughey, M. & Philip, J., 2016, Victoria's proposed euthanasia laws are flawed, Melbourne: Fairfax Media, Accessed 21 Jun 2016, http://www.theage.com.au/comment/victorias-proposed-euthanasia-laws-are-flawed-20160620-gpn9p2.html
  2. Hudson, P., Hudson, R., Philip, J., Boughey, M., Kelly, B. & Hertogh, C., 2015, Legalizing physician-assisted suicide and/or euthanasia: Pragmatic implications for palliative care, Palliative and Supportive Care, 13(5), 1399-1409.
  3. Hudson, P., 2015, Inquiry into end of life choices: Submission 905 to the Parliament of Victoria, Centre for Palliative Care, St Vincent’s Hospital, Melbourne.
  4. Hudson, P., Boughey, M. and Philip, J., 2016, Witness Appearance Transcript: Inquiry into end-of-life choices - Centre for Palliative Care, Parliament of Victoria, Melbourne, 24 Feb.
  5. Gandsman, A., 2016,“A recipe for elder abuse:” From sin to risk in anti-euthanasia activism. Death Studies, In press.
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The Canadian Parliament has passed a law that allows the terminally ill to choose assisted dying in restricted circumstances.

The Parliament of Canada has legalised assisted dying. (Photo: Jeffery Nichols)

The Parliament of Canada has legalised assisted dying. (Photo: Jeffery Nichols)

 

The historic law was passed this Friday and allows a dying patient to opt for assisted dying within specific limitations:

  • The patient must —
    • be 18 or older;
    • be mentally competent;
    • be eligible for government-funded healthcare (at the same time as ensuring the patient has access to appropriate care, this prevents non-residents from accessing the law);
    • Have a serious, incurable illness or condition in an advanced state of irreversible decline; and
    • Be experiencing intolerable suffering.
  • The patient's request must be signed by two independent witnesses.
  • There is a mandatory cooling off period of fifteen days.

 
Canadian Prime Minister Justin Trudeau supported the legislation.

Jody Wilson-Raybould, Miniter for Justice, issued a statement with the Attorney General and Minister of Health, saying that the legislation as passed "strikes the right balance between personal autonomy for those seeking access to medically assisted dying and protecting the vulnerable."

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