Filibuster

To employ an artificial and overly-lengthy process in an attempt to stall or block a possible political outcome.

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The Victorian parliament is debating the Government's Voluntary Assisted Dying Bill

Former Australian Prime Minister Paul Keating once famously branded the Senate “unrepresentative swill” for obstructing his legislative agenda. Today, the question of how representative our political masters are remains moot.

Major community support for VAD

Take voluntary assisted dying (VAD) for example. Poll after poll demonstrates that the overwhelming majority of Australians want this additional choice for people in extremis at the end of life. The impeccable Australian Election Survey (AES) conducted by Australian National University scholars last year confirmed that 77% of Australians want VAD reform, with 13% undecided and just 10% opposed.

Strong support (43%) is ten times greater than strong opposition (4%), and support is high across the political spectrum: amongst minor/independent (69%), Coalition (77%), Labor (80%) and Greens (87%) voters. Public support has been in the majority for more than four decades.

Political support missing in action

But since the Northern Territory Rights of the Terminally Ill Act in 1996, none of the many VAD Bills before various state parliaments has passed. And the Northern Territory’s Act was torn down by the federal parliament just eight months after coming into effect.

A 2008 university study of federal MP voting opportunities found 100% of Greens, 55% of Labor, and a paltry 17% of Coalition MPs voting in favour of VAD.

New analysis

Now, a new analysis of the ten state VAD Bills since 2000 where final divisions were called, offers further insights. It found 100% of Greens MP voting opportunities were in favour, along with 51% of Labor, 29% of minor party and independent, and a similarly paltry 17% of Coalition MPs. Excluding South Australia, whose parliament has debated the greatest number of VAD Bills, the Coalition support rate was just 9%.

Overall, while state Labor MP votes fell 29% short of Labor voter attitudes, Coalition MP votes fell an astonishing 60% short of Coalition voter attitudes. At the state level, Coalition MPs had the most voting opportunities — nearly half (48%). No wonder passing VAD Bills is challenging.

It begs the question, how is it that our legislative representatives fail to reflect clear public majority views on matters of conscience for so long?

Hidden reasons behind MP opposition

Obviously, lobbying on both sides of the conversation in part informs MPs’ views, but there are several more persuasive factors.

For a start, there’s a “truism” held by many MPs that their vote in favour of a VAD Bill would lose them more votes at a general election than would a vote against the Bill. However, the opposite has been demonstrated in multiple studies.

Further, I’ve shown before that opposition to VAD is largely religious.  A university study has also found that those who are more religious and who are politically engaged tend to hold very conservative views. So while there are religious MPs on both sides of politics, Coalition MPs are naturally more inclined to hold much more conservative views.

But that doesn’t fully explain the massive 60% representation gap on the Coalition side, either.

In good conscience?

A key factor lies in the seemingly reassuring principle of the “conscience vote.” The major parties have announced that their members are accorded a conscience vote (also known as a “free vote”) on the VAD Bill. That simply means that there’s no official published party policy on the matter and party members may vote freely on the basis of their own conscience.

There are two significant issues with this state of affairs.

The first is that the member may refer exclusively to their own conscience. But what if the MP’s conscience is at odds with the electorate’s? For my home state of Victoria, the 2016 AES study found 79% of the community in favour of VAD. There are 88 members of the Victorian parliament lower house, and just 40 members in the upper house. Therefore, it’s possible for as few as just 20 Victorian MPs to vote “no” in order to extinguish the will of 3.2 million Victorians (79% of 4.05 million Victorian voters).

If that weren’t enough, the second issue is that the right to ‘conscience’ is granted only in respect of the Bill itself, not on procedural matters about the Bill. It can make a huge difference.

How the parry works

Here’s what happened in 2008 when Victorian Greens MP Colleen Hartland’s VAD Bill was before the Legislative Council. MPs were afforded a conscience vote, and many of them had said they were supportive of VAD in general, but couldn’t support Hartland’s Bill in its current form. (That’s also a common ruse of MPs who in reality oppose the reform in principle but wish to appear ‘open minded’.)

When the final vote on Hartland’s Bill was lost, then Greens MP Greg Barber immediately moved a motion to refer the Bill to a parliamentary committee so that it could be improved to MPs’ satisfaction. Neither Labor nor Coalition parties afforded their members a conscience vote on this procedural matter, instead directing MPs to vote against such motions. The referral, which may have resulted in Victorians having wider end-of-life choices years ago, was cynically buried.

Most voters remain unaware of the shenanigans played in the corridors of power to achieve such results.

Australia’s special political conservatism

They’re not the only shenanigans, though. Another university study comparing federal MP conscience voting patterns in the UK, New Zealand and Australia found Australia to be different, accounting for why the UK and NZ have legalised marriage equality, while Australia hasn’t.

Firstly, the centre-left in Australia has a larger proportion of Catholic members than in the UK and NZ, accounting for some of the shortfall in Labor representation of progressive views.

Secondly, those amongst Coalition ranks, but with more liberal social consciences, had been lashed by Coalition party whips to vote against progressive reform. So while there was a public display of fairness and neutrality, the reality was quite different.

Borne out in state parliaments

These findings are replicated in Australian state parliament votes too, with Coalition MPs rarely if ever voting in favour of progressive social reform. Coalition MP votes on VAD including and since Hartland’s legislative attempt in 2008 are telling: in Victoria 2008 10:5 against, in Tasmania 2009 6:0 against; in Western Australia 2010 19:1 against; in NSW 2013 10:0 against; in South Australia 2016 14:7 against and in Tasmania 2017 13:1 against.

Rather than reflect 77% Coalition voter support for VAD, Coalition MP voting patterns reflect the highly negative stance of party leaders, whipped through the parliamentary party membership. For example, then WA Premier Mr Colin Barnett made it clear he thought assisted dying was “government-sanctioned killing”. Tasmanian coalition leader Mr Will Hodgman said that “protection for [vulnerable] people cannot be guaranteed.” Then-NSW Premier Mr Barry O’Farrell declared himself “strongly opposed”.

Back to Victoria’s Bill under debate

The situation in Victoria is looking somewhat more positive, with Premier Mr Daniel Andrews and many in his Cabinet publicly supporting reform. A lengthy, detailed, professional and well-resourced process has informed the crafting of the Bill.

However, opposition leader and would-be Premier Mr Matthew Guy has stated his resolute opposition to it and that he intends to vote “no”. That would mean he is quite comfortable for his own personal view to extinguish the contrary views also held in good conscience by 34,626 of the 43,831 voters in his own electorate of Bulleen, and 3.20 million of Victoria’s 4.05 million voters. (Electorate numbers as at 10 October 2017.)

An obvious solution

There’s an obvious solution for MPs whose own consciences disallow them from reflecting the overwhelming majority conscience of the electorate.

They could consider abstaining — simply absenting themselves from the chamber during the division. That would keep their own consciences intact while allowing the electorate’s conscience to be reflected.

I’m a constituent of Mr Guy’s. Over a period of months I made six robust attempts to meet with him to discuss these matters, especially the covert whip arrangements and the consideration of abstention. I can be persuasive in obtaining appointments, but my best efforts proved wholly unfruitful.

As I said to Mr Guy’s private assistant after the last failed attempt, voters could be forgiven for believing he’s more interested in meeting allegedly shady characters in fancy Brighton restaurants, than meeting with his own constituents.

Victorians are watching the parliamentary VAD debate. We’re taking notes that will inform our votes at the state election late next year.

Indications are at present there’s a good chance that Victorian MPs won’t be “unrepresentative swill”.


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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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The Parliament of Victoria is currently debating an assisted dying Bill.

As the Parliament of Victoria prepares to debate an assisted dying Bill, South Australian Catholic anti-assisted-dying lobbyist Mr Paul Russell is at it again. This time he's sent a missive to Victorian politicians shouting about, amongst other things, a crisis of assisted dying numbers in Washington state. He’s conveniently cherry-picked his arguments again.

Mr Russell wrote that in Washington state:

“deaths from lethal drugs prescribed under the Act have nearly quadrupled (376%) from 51 in 2010 to 192 in 2016.”

Now I’ve called Mr Russell out before for misinformation, for example his laughable ‘secret’ opinion poll, promoting a misrepresentation of a Council of Europe determination, complaining at the same time that people will die too early but yet live too long, and spreading despicable misinformation about Dutch neonatal euthanasia.

His latest claim extends his misinformation crown title.

Don’t get me wrong. He cites the correct raw data figures for Washington. But he packages them up handily with FUD (Fear, Uncertainty and Doubt) wrapping, all tied up with the most sinister bow he can muster.

I’ve criticised the use of uncontextualized raw data before, and I do so again.

The relevant facts

Washington state legalised assisted dying by ballot in 2008. The following year the law was put into practice, and 2010 was the first full year of its operation.

Here’s the rate of assisted deaths as a proportion of all deaths in Washington state for all the years on record. As you can see, the rate hasn’t even reached one half of one percent of all deaths in 2016.

 2009 

 2010 

 2011 

 2012 

 2013 

 2014 

 2015 

 2016 

 0.07% 

 0.11% 

 0.14% 

 0.17% 

 0.23% 

 0.24% 

 0.30% 

 0.35% 

 

Never ones to miss out on an opportunity to spread FUD, if it were just one case last year and two this year, assisted dying opponents would be shouting from the rooftops: “Crisis!! 100% increase!!”. But in reality, only a small minority use the law, yet thousands of patients and their families are given comfort by the option being avaialble even if they don't use it. That message was made loud and clear by Oregon Senator Ginny Burdick. Washington's Death With Dignity Act is modelled on Oregon's, and Oregon's Act has been in effect for twenty years.

A Catholic trifecta

Of course in his missive, Mr Russell, like his fellow Catholic whom I’ve also called out for misinformation, Prof. Margaret Somerville, avoids referring to Swiss data. And their fellow Catholic Mr Daniel Mulino, who furnished a minority report to the Victorian Parliament’s recommendations on end of life choices, a report I’ve also called out for stunning misinformation, fudges his numbers about Switzerland, referring to data from 1998 without further context.

Why do these lobbyists avoid or selectively refer to the Swiss situation? Because the actual data is an inconvenient truth to their FUD story-telling.

An inconvenient truth

Switzerland’s assisted dying law came into effect seventy-four years ago, in 1942. If just one person had used the law in 1942, using Mr Mulino’s favourite annual increase figure of 17.5%, that would equate to 110,338 people pursuing an assisted death in Switzerland in 2014.

I say 2014 because that’s the most recent year for which official Swiss Government assisted dying figures are available. And what was the actual figure in 2014? There were 742 cases of assisted dying amongst Swiss residents, and Dignitas reports that it assisted 198 foreign nationals. That’s a total of 940 assisted deaths.

Let’s add another 60 foreign-national assisted death cases from the much smaller Swiss society that provides accompaniment for foreigners. That makes around 1,000 cases in 2014, including all those who came from all over the world. And it’s less than one hundredth of the minimum rate the doomsayers predict by cherry-picking one statistic that suits their argument.

Swiss law has the fewest safeguards

The Swiss assisted dying law has none of the safeguards of the Washington law. By Mr Russell and Co’s reckoning, you’d think that the Swiss (and those who visit) would be dropping off like flies.

By way of further comparison, the doomsayer number of assisted deaths for 2014 (a minimum of 110,338 cases) is substantially greater than the total number of deaths in Switzerland that year: 63,938. It’s an obvious impossibility.

In 2014, the Swiss rate of assisted deaths including all the foreign nationals who came to use its law, was 1.5% of all deaths; and 1.2% for resident-only cases.

And the rate of assisted deaths in Luxembourg in 2014 (legalised in 2009), whose laws are much more liberal than Washington’s though stricter than Switzerland’s, was 0.17% of all deaths. It’s odd how the doomsayers don’t report Luxembourg data, either.

And what are these cases?

These are cases of people in extremis with no realistic prospect of relief or improvement, choosing a peaceful assisted death as a better option than being forced to prolong their torture, according to their own deeply-held beliefs, values and examined consciences.

Mr Russell believes they should be required to endure their torture. There is a point to it, he says: because it joins them “in some mysterious way to the sufferings of Christ”... whether others believe in Christ, or at least Mr Russell’s version of him, or not.

You won't find this degree of candour on his anti-assisted dying website, but you can find it at NewsWeekly, which is run by the National Civic Council (NCC), itself established by Australia's most famous and conservative lay Catholic, B. A. Santamaria. Mr Russell has been President of the NCC South Australian chapter.

It’s not the numbers, it’s the circumstances

To be clear, in no jurisdiction has its legislature enacted access to assisted dying on the basis of a numeric ceiling. They’ve enacted access on the basis of intolerable and unrelievable suffering. And to this day, those are the folks who may be granted access to an assisted death.

Conclusion

Again, Mr Russell (and colleagues) do themselves no favours by conspicuously cherry-picking the data they want to use, and wrapping it up in threatening garb to create FUD amongst politicians.

Wiser heads will prevail in Victoria.


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The Australian reported a confected life insurance policy crisis. Photo: Flickr, Pictures of Money

News Ltd columnist Jamie Walker recently reported a confected new crisis between assisted dying law reform and the Australian life insurance industry. It's a triple-sham argument as I reveal.

Last Friday, The Australian columnist Jamie Walker delivered a shrill pitch against assisted dying titled “insurers baulk at ‘suicide cover’ as SA debates euthanasia.” In it he reported that legalisation of assisted dying would “force a showdown with the $28 billion life insurance industry” and would be “disastrous for the industry.”

Such was the article’s hyperbole that it seemed the legalisation of assisted dying might single-handedly lead to the collapse of a massive section of the national economy.

The fall guy for the argument was the current South Australian (SA) Voluntary Euthanasia Bill. Section 28 of the Bill prohibits insurers from excluding a life policy payout for an insured person who dies under the Bill’s voluntary euthanasia provisions.

Mr Walker’s article argued that such an exclusion would be in conflict with Commonwealth law. (Section 228 of the Life Insurance Act 1995 (Commonwealth), which is not named in the article, expressly permits exclusion of suicide cover from life insurance policies.) In the article, Financial Services Council (FSC) CEO Sally Loane refers to Section 109 of the Constitution of Australia which rules that Commonwealth law prevails over State law when there is any conflict between the two.

If these points were all the relevant facts, then the SA Bill’s insurance exclusion clause would simply fail to be of any force or effect and the world would keep turning as before.

But they aren’t all the facts.

Section 28 of the SA Bill states that insurance policies may not exclude a payout in relation to ‘voluntary euthanasia.’ However, the Commonwealth Life Insurance Act is completely silent on the matter of voluntary euthanasia: it permits policy exclusion only in respect of ‘suicide.’

Further, Section 23 of the SA Bill expressly states that a death under its provisions is not a suicide, and may not be determined as such even by the Coroner.

Consequently, there is no actual ‘suicide’ conflict in law. Indeed, a similar ‘not a suicide’ provision has stood in Oregon’s Death With Dignity Act (DWDA) since 1997 with no crisis — or even ripple — in the USA insurance industry.

So much for the spectacular “showdown.”

The ‘suicide’ argument not only fails in law, but in practice as well. Most life insurance policies in Australia do in fact cover suicide, except for the first year of insurance. To avoid the creation of an insurance policy with the intention of a payout claim by suicide, most Australian policies exclude suicide for the first thirteen months. That extends across the first year of insurance plus a 30-day grace period to pay the renewal premium.

Thus, most Australian life insurance policies cover suicide once a renewal premium has been paid.

And what effect would assisted dying coverage have on the life insurance industry? The Society of Actuaries has published a thorough analysis of the impact of Oregon’s DWDA on USA insurance companies. It calculated such a microscopic potential effect that it concluded there would be no “material impact on life insurance claim costs.”1

Therefore, even if one were to argue that the assisted death of a terminally ill individual — after careful consultation and deliberation — was ‘suicide,’ most Australian life insurance policies would still be due to pay out just as if the individual had died from what we usually refer to as suicide. Plus, it would have no material effect on insurers.

It was largely redundant then for the FSC to write to the South Australian Government to express ‘concern’ that the SA Bill doesn’t refer to a death under its provisions as ‘suicide,’ thereby subtly acknowledging that there was no ‘suicide conflict’ in law in the first place. (In fact it is a Private Member’s Bill, not a Government one.)

Such was its reaction, it would be hard to imagine that the FSC doesn’t already plan to instead try and persuade the Federal Parliament to add ‘assisted dying’ alongside ‘suicide’ as a permissible exclusion in Section 228 of the Life Insurance Act, even in the absence of significant benefit for insurers. If successful, Commonwealth law precedence would then protect insurer rights to expressly exclude life cover for assisted dying regardless of any State laws to the contrary.

But insurers would then be declaring to the Australian public, the overwhelming majority of whom want assisted dying choice legalised, that “we will pay out on the policy if you die in extremis from the horrific but ‘natural’ effects of your illness, or you are driven into pharmacological oblivion through terminal sedation until you die no matter long it takes, or you starve and dehydrate yourself to death by refusing all interventions and sustenance, but we will not pay out if you die a lawful, peaceful, physician-assisted death in the same circumstances.”

Good luck with the public relations exercise on that one.

In the meantime, Australians can see for themselves what a beat-up this report was: in the first instance concocting a pseudo-crisis about supposed conflicts in ‘suicide’ insurance law, in the second instance side-stepping the fact that most Australian life insurance policies currently cover suicide anyhow, and in the third instance ignoring independent analysis showing no significant effect for the life insurance industry after all.

What will be the next confected argument against assisted dying choice for Australians in untreatable extremis? Just wait for it.

This article was originally published in OnlineOpinion.

References

  1. Jaffe, JM 2016, 'An actuarial analysis of the Oregon Death With Dignity Act', Product Matters, Jul(104), pp. 23-25.

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Palliative Care Australia's position statement on assisted dying.

I’ve written previously about palliative care specialists trying to filibuster assisted dying law reform. In this F file, I reveal how Australia’s peak body for palliative care (PC), Palliative Care Australia (PCA), segues from a state of ignorance to its own filibuster that would stall assisted dying choice.

First up, let me say that I hold deep admiration for the generally excellent services PC specialists provide at the bedside. I believe that PC deserves strong support and good funding. The peak body’s leadership in regard to its stance on assisted dying, however, is of a dramatically lower calibre.

Revised policy statement

In PCA’s latest incarnation of its Position Statement on ‘Euthanasia and physician assisted suicide’,1 the organisation says that:

“Public discussion and policy development on issues related to euthanasia and physician assisted suicide should be informed by research. There is insufficient research into euthanasia and physician assisted suicide.” — Palliative Care Australia, Position Statement

One can only agree wholeheartedly with the first sentence. Of course public discussion and policy development should be informed by research wherever possible.

The filibuster

And there follows the filibuster rub — PCA unequivocally claims that there is insufficient research. The logical consequence of PCA's juxtaposition is that we ought to muzzle public discussion and policy development because, PCA alleges, there is insufficient research to inform it.

Certainly in terms of Australia there are only a handful of published studies into attitudes and practices. But assisted dying is illegal in Australia. There are very substantial ethical and legal issues when it comes to conducting research.

Who is PCA to claim "insufficient research"?

PCA is the peak body for PC, a specific discipline within medicine that represents (well-paid) doctors. It runs a staffed office in Fyshwick ACT, and is overseen by a Board and Executive. It has a key purpose of lobbying in the halls of power in the Federal Parliament, and, presumably on the basis of the statement above, has a goal of ensuring that government PC policy (and funding) is informed by research. You'd think it might have some resources and connections to go looking for some research evidence.

A revealing comparison

In comparison, I conduct my assisted dying law reform work on a completely pro-bono basis, as a single individual, in my spare time. I have a formal literature collection on end-of-life decision making, including assisted dying, of currently over six thousand articles. I’m not talking about mere opinion published in the media: I’m talking about articles published in professional journals and in official government and agency reports.

I just ran a quick check across my database, looking for items specifically in respect of assisted dying (not medical or palliative care in general) in the Netherlands, Belgium and Oregon, where assisted dying has been legal for some time. Here’s what I found.

In respect of assisted dying the Netherlands I hold 366 journal articles and 25 official reports. For Belgium, I hold 152 journal articles and 11 official reports. And for Oregon I hold 144 journal articles and 32 official reports.

That’s a total of 662 journal articles and 68 official reports in respect of three lawful assisted dying jurisdictions. And that doesn’t count any holdings of book chapters, conference papers and the like. The journal article count will be somewhat overstated because a minority of journal papers are about more than one lawful jurisdiction (e.g. the Netherlands and Belgium). So let’s estimate that downwards to, say, a mere 400 journal articles.

That’s an abundance of evidence from and review about jurisdictions where assisted dying is legal. Could we always know more about assisted dying? Sure.

Double standards when it comes to evidence

We could also know a lot more about PC. I recently asked PCA for a simple but critical headline statistic — one you’d think was necessary to inform policy about PC resources and funding: “what proportion of Australians who experience a non-sudden death (i.e. deaths where PC might be relevant) actually receive PC?”

PCA kindly responded, but the answer in a nutshell was “we don’t know.”

But I wouldn't suggest for a moment that we muzzle “public discussion and policy development on issues related to PC” because the peak body hasn't done enough research to calculate (or even estimate) a fundamental policy-informing statistic.

Conclusion

The Australian community would be better served if PCA acquainted itself with the extensive available literature on assisted dying in lawful jurisdictions (as well as headline PC statistics), and dropped its inappropriate filibuster.

 

References

  1. Palliative Care Australia 2016, Euthanasia and physician assisted suicide: Position statement, viewed 1 Sep 2016, <http://palliativecare.org.au/download/2448/>.
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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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Dr William Toffler (left) acknowledges no slippery slope cause-and-effect evidence, with Drs Bentz and Stevens

A new scholarly journal focused on end-of-life ethics, decision-making and practice has just been launched: the Journal of Assisted Dying. In the first article, claims by Oregon lobby group Physicians for Compassionate Care (PCC), including Doctors Bill (William) Toffler and Ken Stevens (and others) are assessed against empirical evidence and found to be completely wrong, or highly misleading as a result of selective use of data.

The new scholarly journal, the Journal of Assisted Dying, is dedicated to careful and holistic analysis of evidence in regard to the various forms of assisted dying that are lawful in a number of jurisdictions around the world... and to practices in jurisdictions where assisted dying remains illegal.

In the first article of a series on Oregon, I examine claims and speculations made by various doctors (and others who quote them), that Oregon has the second-highest suicide rate in the USA (or is always in the top 10), that Oregon's Death With Dignity Act has resulted a massive increase in the state's general suicide rate, and other astonishing statements.

Of course, the empirical evidence from the Oregon Health Authority and from the USA Centers for Disease Control and Prevention does not support these statements and interpretations, and I analyse and critique the evidence.

Some of the claims are just plain factually and hugely wrong. Others are the result of failing to read their sources more carefully, misunderstanding what the data actually represents. Still further claims are made on the basis of selectively-chosen statements from government reports, while omitting statements that are contrary to, or provide alternative and well-researched explanations for Oregon's recently rising general suicide rate.

Drs Toffler and Stevens have even published some of their claims and speculations in the British Medical Journal.1 It goes to show that even good journals sometimes publish bunkum:  their article was a letter to the editor rather than peer-reviewed research. Great care is required to sort real evidence from hype and opinion.

Ultimately, Dr Bill Toffler of PCC has acknowledged on video that there is no cause-and-effect evidence between Oregon's Death With Dignity Act and Oregon's suicide rate, an acknowledgement that went unchallenged by his two PCC colleagues present at the time, Dr Ken Stevens and Dr Chuck (Charles) Bentz. You can see Dr Toffler's statement here (at 10'50").

The Journal of Assisted Dying is an open-access journal, and you can read the full article here.

-----

1. Toffler, WL & Stevens, K 2015, 'Re: Assisted dying: law and practice around the world', BMJ, vol. 351, 19 Aug, p. h4481.


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Physician use of misinformation to speculate 'assisted dying suicide contagion' in Oregon


Author(s)

Neil Francis

Journal

Journal of Assisted Dying, vol. 1, no. 1, pp. 1–6.

Abstract

Background: Several physicians have speculated that Oregon’s general suicide rate is evidence of suicide contagion as a result of Oregon’s Death With Dignity Act (‘the Act’).
Methods: Search and analysis of physician and related online sources of Oregon suicide contagion speculation; retrieval and analysis of cited Centers for Disease Control and Prevention (CDC) and other publications relied upon; analysis of authoritative, public Government mortality data for Oregon and other USA states.
Results: Several physicians have speculated about Oregon suicide statistics in a manner that is not supported by the cited publications, or by public CDC mortality database data. The claims variously (a) misrepresent key data in the publications, (b) omit information in the publications that is at variance with suicide contagion speculation, and (c) overlook other significant information at variance with speculation. The physicians have previously acknowledged inability to prove perceived “slippery slope” effects of the Act. Other opponents of the Act have republished the physicians’ erroneous information.
Conclusions: Evidence advanced by several physicians to speculate that Oregon’s Death With Dignity Act causes suicide contagion in Oregon is variously false, misleading or highly selective—omitting key facts—and has arisen even though the physicians acknowledge they have no proof of ‘slippery slope’ effects.

Article keywords

suicide contagion, copycat suicide, Werther effect, slippery slope, misinformation, Oregon, Dr William Toffler, Dr Kenneth Stevens, Physicians for Compassionate Care

Full PDF

Download the full PDF: Download the full article (390Kb)

Citation

Francis, N 2016, 'Physician use of misinformation to speculate 'assisted dying suicide contagion' in Oregon', Journal of Assisted Dying, vol. 1, no. 1, pp. 1-6.

Download the citation in RIS format: RIS.gif


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Bulldust is often advanced by opponents of assisted dying law reform—a reform which most citizens want—to scare or bamboozle us against the reform.

Why is there so much misinformation about? The answer is straightforward: because so far it's worked.

More than academic niceties

This isn't just an academic argument about getting the facts right. It's a fundamental battle between different world views, where misinformation against assisted dying law reform has often held sway. Here are just two real examples:

Examples of real impacts of misinformation

  1. In Australia, in every Parliamentary debate over an assisted dying Bill before them, numbers of opposed politicians have quoted the rhetorical sham "the vulnerable will be at risk" (see why it's a sham here). With the exception of the Northern Territory's Rights of the Terminally Ill Act in 1996, every Bill before Australian Parliaments has been lost or filibustered until the end of the Parliamentary term on this fearmongering. And the Rights of the Terminally Ill Act was annulled by the Federal Parliament in 1997 on the same grounds.
     
  2. In Ireland, the High Court made a determination as to whether Marie Fleming, with advanced multiple sclerosis, was constitutionally allowed to receive assisted dying (Fleming v. Ireland and Ors 2012 10589 P). The court rejected Fleming's claim, saying that the "strikingly high" rates of non-voluntary euthanasia in Switzerland, Netherlands and Belgium "speaks for itself as to the risks involved". But sound research shows that the rates in these countries are similar to rates in other countries without assisted dying laws: evidence of the high degree of 'evidential' bull that was served up to their Honours.

It's time to stop the bull in its tracks

DyingForChoice.com believes it's time for the bull, the misinformation, to stop. It is unacceptable for rational citizens to be denied freedoms on the basis of scaremongering and erroneous information. This is the purpose of the F files. It provides citizens, politicians, policy advisors, healthcare workers, media professionals, researchers and others the evidence, arguments and resources to be properly informed and to avoid misinformation.

 

The F Files

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The F files
 

The public conversation about assisted dying law reform has been influenced by misinformation from opponents for far too long. Often, misinformation is simply given in ignorance, but sometimes not. It is mandatory that a conversation as important as assisted dying for those suffering at the end of life is informed by accurate information and evidential and reasoned views. Arguments that deceive or attempt to shut down the conversation have no place.

Whether misinformation is Fearmongering, Filibuster, Flip-flop, Flapdoodle, Fudge, or Fiction or Faith, the F files identifies misinformation and those who are providing it.

You can help by sending records of misinformation claims to us, and asking claimants to correct the errors.

 

Fundamental forms of misinformation

fearmongering.jpg      

Fearmonger

Represent something as considerably more sinister or dangerous than it is when judged by objective criteria.

filibuster.jpg  

Filibuster

Artificial and overly-lengthy process used in an attempt to stall or block a political outcome.

flip-flop.jpg  

Flip-flop

Multiple inconsistent or opposed arguments used to justify a position.

flapdoodle.jpg  

Flapdoodle

An argument that superficially seems intuitively attractive, true or real, but is in fact meaningless or nonsensical.

fudge.jpg  

Fudge

Unscientific analysis (e.g. selective data) used to support an argument that is not supported by proper, full analysis.

fiction.jpg  

Fiction

A thing that is untrue, or invented or feigned by imagination with no sound or verifiable evidence.

faith.jpg  

Faith

An argument that all others should adhere to a particular religion's values, tenets and rules.

 

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