Australia

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Dr Syme consults with Mr Bernard Erica (ABC Australian Story)

Australia's Medical Registration Board (AHPRA) has told Dr Rodney Syme that he is a serious danger to patients.

Dr Rodney Syme, who occasionally provides advice and medication for dying patients to give them control over their dying process, has been reprimanded by Australia's Medical Registration Board (AHPRA) for posing a 'serious danger' to such patients. The story has been reported widely in the media.

On ABC's Australian Story on Monday night, "My conscience tells me", patient Mr Bernard Erica clearly volunteers that this is utter nonsense, and that like former journalist Mr Steve Guest, who Dr Syme also provided advice and medication to control the end of his life, Mr Erica in no way felt Dr Syme was a threat of any kind. Indeed, like Mr Guest, he has experienced profound and lasting relief from the very knowledge he would have control if and when the time for him came.

Mr Erica's GP, who was aware of and seemed initially supportive of Mr Erica's stance and Dr Syme's advice and medication, lodged a complaint with AHPRA when the ABC's Australian Story contacted him (the GP) for an interview in relation to the case, it was explained on Australian Story. Did this doctor suddenly feel frightened into 'protecting his own arse'?

Coroner's Court data shows that 8.5% of suicides in Victoria are the result of dying patients in extremis being denied the right to a peaceful, doctor-assisted death.

AHPRA need to hear from ordinary Australians, and doctors, that they disagree with the stance it has taken in relation to Dr Syme's careful and compassionate consultations with dying patients. Indeed, to oppose careful and considered medical assessment that providing control is the only way for this particular patient to obtain relief from intolerable psychological suffering—of the State's refusal to allow rational and deeply valued paths to death—is to condemn such patients to a high chance of violent and undignified suicide.

In a key submission to the Victorian Parliament's current inquiry into end-of-life choices, the Coroner's Court of Victoria reported that, after intensive and exquisitely careful analysis, rejecting any equivocal cases, 8.5% of suicides in Victoria are of dying persons experiencing unrelievable and intolerable suffering, and for whom current law does not provide a compassionate and peaceful doctor-assisted death.

By censuring doctors who provide patient choice, it is my view that AHPRA becomes complicit in violent suicides amongst the terminally ill. Thus it is AHPRA and not Dr Syme who represents a 'serious danger' to terminally ill patients.

By reprimanding Dr Syme for his careful and considered private medical practice and for placing additional conditions on his medical license, it is my view that AHPRA becomes complicit in violent suicides amongst the terminally ill. Thus it is AHPRA and not Dr Syme who represents a 'serious danger' to terminally ill patients.

I wrote to AHPRA to express my displeasure at their failure to recognise contemporary community standards, which are enormously in favour of providing terminally ill people the right to a peaceful, doctor-assisted death. Here is what I said.

 

Dear AHPRA,

I write to express my dismay, along with millions of Australians, at your hostile attitude towards Dr Rodney Syme and your farcical claim that he is a danger to patients. Clearly, you are mired in nineteenth century medical paternalism and are out of touch with contemporary Australian attitudes about having control over one's death in the face of intolerable and unrelievable end-of-life suffering.

Dr Syme will speak for himself of course. But I will also say that having worked with Dr Syme for years, NEVER ONCE in my experience has his "primary intention " (as you put it) been for his patient to end their life when he provides advice and medication. He provides GOOD PALLIATIVE CARE: relieving intolerable psychological suffering. Many of his patients never take the medication.

Please lift your game and modernise. Dr Syme is giving patients control to live better, not inciting them to die: a choice between ways of dying, not between living and dying.

Neil Francis

 

I urge you to write to AHPRA as well, which you can do here. Scroll down the page to use the web form.

Let us know what response you receive.


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Around the world, doctors help patients with assisted dying, regardless of whether it is legal in their jurisdiction or not.

For example, in Australia, where assisted dying is illegal, research reveals that assisted dying is widely practiced. Many Australian nurses have collaborated with doctors to provide assisted dying, and have occasionally even done so without consulting a doctor (Kuhse & Singer 1993). Nurses in New Zealand also provide assisted dying, sometimes without consulting a doctor (Malpas, Mitchell & Koschwanez 2015; Mitchell & Owens 2004).

"Euthanasia is common. It's practiced out of sight, under wraps, no regulation, no rules, no supervision." Prof. Peter Baum (Baum 2001)

Professor Baum's statement is borne out by scientific research. A national survey of Australian doctors in 1996 found that 1.9% of deaths were the result of voluntary euthanasia (VE) or physician-assisted dying (PAD) (Kuhse et al. 1997). By comparison, the rate in the Netherlands in 1995 (the closest year of empirical research data) was 2.6% (Onwuteaka-Philipsen et al 2012). The rate of medically assisted deaths in Australia, where the practice is illegal, was three quarters the rate of the Netherlands, where the practice is legal.

Dutch and Australian assisted dying rates comparedSimilarly, Douglas and colleagues (2001) surveyed Australian surgeons, finding that more than a third had provided drugs with the intention to hasten patient death, and with more than half of cases lacking an express request from the patient.

Forms of medically assisted dying have been found to occur not only in Australia (and in the Netherlands where it has been lawful for decades), but in Belgium prior to its law reform (Chambaere et al. 2015); Switzerland, Denmark, Sweden and Italy (van der Heide et al. 2003); the UK (Seale 2009a; Seale 2009b); the USA (Back et al. 1996; Bonn 2000; Emanuel, Fairclough & Clarridge 1996; Lachman 2010; Schwarz 2003; Schwarz 2004); France (Riou et al. 2015); Norway (Forde & Aasland 2014; Forde, Aasland & Falkum 1997); and even in conservative Greece (Voultsos, Njau & Vlachou 2010); Northern Ireland (McGlade 2000) and Pakistan (Imran et al. 2014).

Indeed, "euthanasia is performed worldwide, regardless of the existence of laws governing it" (Gastmans et al. 2006), "in all countries studied" (Muller, Kimsma & Van Der Wal 1998), "albeit in a secretive manner" (Rosenfeld 2000), "in the privacy of their [doctor-patient] relationship" (Cassell 1995), with repeated involvement of some physicians (Smith 2007), and frequent failure to adhere to high standards when illegal (Emanuel et al 1998).

Even Dr Brendan Nelson, while President of the Australian Medical Association, acknowledged that he had helped hasten the death of a patient. He stated that in the "2 percent of cases" where there was no hope of recovery, that "patients, their families and their doctors make those decisions [for euthanasia]" though clandestinely, because "technically it would be illegal" (Nelson 1995).

 

nelsoneuthanasiasecretsmall.jpg

AMA's President, Brendan Nelson, in 1995.

 
The evidence is irrefutable: there is underground assisted dying worldwide
and it demonstrates that there is a profound need for assisted dying law reform to allow dying patients the right to seek a peaceful hastened death, and to protect doctors and nurses who provide that assistance. Law reform would also force assisted dying from the dark shadows, creating transparency and accountability around the process, which would then be open to discussion and improvement if required.

Intolerable and unrelievable patient suffering drives underground assisted dying across the world in jurisdictions where it is illegal, with no standards of practice or transparent oversight.

 

References

Back, AL, Wallace, JI, Starks, HE & Pearlman, RA 1996, 'Physician-assisted suicide and euthanasia in Washington State: Patient requests and physician responses', JAMA, vol. 275, no. 12, pp. 919-925.

Baum, P 2001, ABC News, TV broadcast 23 Jan, ABC, Sydney.

Bonn, D 2000, 'Support for euthanasia falls as care of dying patients improves', The Lancet Oncology, vol. 1, no. 3, p. 133.

Cassell, EJ 1995, 'Treating the patient's subjective state', Pain Forum, vol. 4, no. 3, pp. 186-188.

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, vol. 372, no. 12, pp. 1179-1181.

Douglas, C, Kerridge, IH, Rainbird, KJ, McPhee, JR, Hancock, L & Spigelman, AD 2001, 'The intention to hasten death: a survey of attitudes and practices of surgeons in Australia', Medical Journal of Australia, vol. 175, no. 10, pp. 511-515.

Emanuel, EJ, Daniels, ER, Fairclough, DL & Clarridge, BR 1998, 'The practice of euthanasia and physician-assisted suicide in the United States: adherence to proposed safeguards and effects on physicians', JAMA, vol. 280, no. 6, pp. 507-513.

Emanuel, EJ, Fairclough, DL & Clarridge, BR 1996, 'Euthanasia and physician-assisted suicide: Attitudes and experiences of oncology patients, oncologists, and the public', Lancet, vol. 347, no. 9018, pp. 1805-1810.

Forde, R & Aasland, OG 2014, 'Are end-of-life practices in Norway in line with ethics and law?', Acta Anaesthesiol Scand, Aug 14.

Forde, R, Aasland, OG & Falkum, E 1997, 'The ethics of euthanasia -- attitude and practice maong Norwegian physicians', Social Science & Medicine, vol. 45, no. 6, pp. 887-982.

Gastmans, C, Lemiengre, J, van der Wal, G, Schotsmans, P & Dierckx de Casterle, B 2006, 'Prevalence and content of written ethics policies on euthanasia in Catholic healthcare institutions in Belgium (Flanders)', Health Policy, vol. 76, no. 2, pp. 169-78.

Imran, N, Haider, II, Jawaid, M & Mazhar, N 2014, 'Health ethics education: Knowledge, attitudes and practice of healthcare ethics among interns and residents in Pakistan', Journal of Postgraduate Medical Institute, vol. 28, no. 4, pp. 383-389.

Kuhse, H & Singer, P 1993, 'Voluntary euthanasia and the nurse: an Australian survey', International Journal of Nursing Studies, vol. 30, no. 4, pp. 311-322.

Kuhse, H, Singer, P, Baume, P, Clark, M & Rickard, M 1997, 'End-of-life decisions in Australian medical practice', Medical Journal of Australia, vol. 166, no. 4, pp. 191-196.

Lachman, V 2010, 'Physician-assisted suicide: compassionate liberation or murder?', Medsurg nursing : official journal of the Academy of Medical-Surgical Nurses, vol. 19, no. 2, pp. 121-125.

Malpas, P, Mitchell, K & Koschwanez, H 2015, 'End-of-life medical decision making in general practice in New Zealand—13 years on', New Zealand Medical Journal, vol. 128, no. 1418, pp. 27-39.

McGlade, KJ, Slaney, L, Bunting, BP & Gallagher, AG 2000, 'Voluntary euthanasia in Northern Ireland: General practitioners' beliefs, experiences, and actions', British Journal of General Practice, vol. 50, no. 459, pp. 794-797.

Mitchell, K & Owens, G 2004, 'End of life decision-making by New Zealand general practitioners: A national survey', New Zealand Medical Journal, vol. 117, no. 1196, pp. 1-11.

Muller, MT, Kimsma, GK & Van Der Wal, G 1998, 'Euthanasia and assisted suicide: Facts, figures and fancies with special regard to old age', Drugs and Aging, vol. 13, no. 3, pp. 185-191.

Nelson, B 1995, 'Euthanasia a family affair says top doc', The Sunday Territorian, Darwin, 21 May.

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, vol. 380, no. 9845, pp. 908-915.

Riou, F, Aubry, R, Pontone, S & Pennec, S 2015, 'When physicians report having used medical drugs to deliberately end a patient's life: Findings of the "end-of-life in France" survey', Journal of Pain and Symptom Management, vol. 50, no. 2, pp. 208-215.

Rosenfeld, B 2000, 'Assisted suicide, depression, and the right to die', Psychology, Public Policy, and Law, vol. 6, no. 2, pp. 467-488.

Schwarz, JK 2003, 'Understanding and responding to patients' requests for assistance in dying', Journal of Nursing Scholarship, vol. 35, no. 4, pp. 377-384.

Schwarz, JK 2004, 'Responding to persistent requests for assistance in dying: a phenomenological inquiry', International Journal of Palliative Nursing, vol. 10, no. 5, pp. 225-235.

Seale, C 2009a, 'End-of-life decisions in the UK involving medical practitioners', Palliat Med, vol. 23, no. 3, pp. 198-204.

Seale, C 2009b, 'Hastening death in end-of-life care: a survey of doctors', Social Science & Medicine, vol. 69, no. 11, pp. 1659-1666.

Smith, SW 2007, 'Some realism about end of life: The current prohibition and the euthanasia underground', American Journal of Law and Medicine, vol. 33, no. 1, pp. 55-95.

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, vol. 362, no. 9381, pp. 345-350.

Voultsos, P, Njau, SN & Vlachou, M 2010, 'The issue of euthanasia in Greece from a legal viewpoint', J Forensic Leg Med, vol. 17, no. 3, pp. 131-6.

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Andrew Denton has appeared in an ABC Radio National broadcast, presented by David Rutledge, about assisted dying.

He talks about Liz, a woman in her forties who has a rare and aggressive form of cancer.

The ABC page for the broadcast, including the audio file, is here.


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St Patrick's Cathedral, Melbourne, Australia. Photo: Donaldytong

On Wednesday 19th November 2015, the Catholic Church appeared before the Victorian Parliament's Legal and Social Issues Committee. Monsignor Anthony Ireland, the Episcopal Vicar for Health, Aged and Disability Care, and Father Anthony Kerin, Episcopal Vicar for Life, Marriage and Family gave evidence about end-of-life decision making. They made a factually wrong allegation about Oregon during their testimony.

Anthony Ireland spoke first, making it clear that they were appearing before the Committee with delegated authority from the Catholic Archbishop of Melbourne (Denis Hart) and with the endorsement of the Victorian Catholic Bishops. He emphasised that "the Catholic Archdiocese of Melbourne does not come to this Committee with fanciful or frivolous arguments."

During question time. Committee Chair Edward O'Donohue asked the Vicars if they had any evidence from lawful jurisdictions to back up their claim that legalising assisted dying would result in a significant reduction in medical research. The Vicars flailed about with vague hypotheticals, but no evidence.

Committee Deputy Chair Nina Springle remarked that some of their testimony was inconsistent with direct evidence from lawful jurisdictions and invited them to reflect on the contradictions. To this, Anthony Kerin stated:

"We know, for example, since Oregon legislated, that the standard suicide rate has increased remarkably and alarmingly. It's not yet the largest rate in the US, but it's getting there, when Oregon had a very, very low suicide rate prior to that."

Let's not mince words: the allegation is comprehensively false. In fact it's three false statements all wrapped up into one.

The USA government's CDC mortaility database provides solid empirical data. Here's Oregon's longitudinal suicide rate statistics, including sixteen years before its Death With Dignity Act (DWDA), and sixteen years after.

Oregon suicide rate

Here are the pertinent facts about Oregon's general suicide rate:

  1. The average for the 16 years after the DWDA is lower than, but not statistically different from, the 16 years prior to the Act.
  2. There was a massive drop in the suicide rate two years after the DWDA came into effect, and the rate has risen only from there.
  3. The rise from 2000 onwards is repeated in the majority of USA states and in the national average. The trend increase in Oregon is not statistically different from the national trend increase.

 
By way of comparison, here's Vermont's suicide rate for the same period.

vermontsuiciderate.jpg

Now, Vermont didn't have an assisted dying law until 2013, and no assisted deaths occurred under the law in that year, so the suicide rate cannot have been affected by an assisted dying law. Yet the picture is similar to Oregon's.

Here's the USA national suicide rate for the same period, with the unemployment rate added.

USA suicide and unemployment rates

There are numerous and complex reasons for suicide and for changes in the rate, but a key one in this USA case is unemployment, which after falling in the 1990s rose abruptly from 2000 onwards.

Has Oregon's suicide rate been worsening relative to other USA states, though? The state annual suicide rankings are informative.

Oregon suicide ranking among all USA states (number 1 is worst)

Prior to the DWDA, the trend in Oregon's suicide ranking among all USA states was deteriorating (where ranking number one is the highest suicide rate). Since the Act came into effect, the trend is improving. The difference in trends is statistically significant. In the sixteen years since the Act came into effect, Oregon has appeared in the "top ten" six times, compared with twelve times in the 16 years prior to the Act.

So, let's examine the three elements of the Catholic Church's statement:

1. "Since Oregon legislated, the standard suicide rate has increased remarkably and alarmingly"

This statement is false by omission. It is critically relevant to mention that Oregon's suicide rate dropped massively two years after the DWDA came into effect. Only after 2000 did it begin to rise—like most states and nationally—and in response to a rising unemployment rate.

2. "Oregon had a very, very low suicide rate prior to that [the DWDA]"

This statement is completely false. Oregon's mean rate suicide for 16 years after the act is not significantly different from the mean for 16 years prior to the Act. Indeed, government data back to 1968 shows Oregon's general suicide rate has always been high and never "low", let alone "very, very low".

3. It's not yet the largest rate in the US, but it's getting there"

This statement is completely false. Oregon's suicide ranking amongst USA states was worsening prior to the DWDA, but has been improving since.

It's very disappointing indeed that the Catholic Archdiocese of Melbourne would offer such profoundly false testimony to a legislative committee making inquiries on behalf of the people of Victoria. The offense is all the more grevious because of the unequivocal manner in which the statement was made, and that the witnesses specifically stated they did not bring any fanciful or frivolous arguments to the Committee.

It's time to comprehensively stamp out false information about assisted dying, no matter how fervently it might be believed by its proponents. Watch this space: there's plenty more to come!


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ABC TV's Q&A panel discusses assisted dying law reform on 9th Nov 2015

In a recent opinion piece in the ABC’s Religion and Ethics section, Bernadette Tobin1 rails against assisted dying, commencing with the criticism that the ABC’s Q&A discussion on the subject this week “lacked precision.” But Tobin’s opinion piece itself commits exactly this offence, as I explain.

For the sake of brevity I’ll only quickly mention that Tobin’s piece also fails on the score of accuracy. For example, she wrongly asserts that “euthanasia” means a doctor administering lethal medication to a patient. It doesn’t. “Euthanasia” simply means “good death”: nothing more and nothing less, regardless of how it occurs. Tobin also asserts that voluntary euthanasia in lawful jurisdictions has caused non-voluntary euthanasia to develop. This is the polar opposite of published empirical research evidence.

But back to precision. Tobin employs two imprecise and deeply flawed arguments in her objection to assisted dying. She variously rolls them in together, so let’s unpack what they are: (A) the “it’s only fair” slippery slope, and (B) “it’s OK if you don’t mean it”.

A: The “It’s only fair” slippery slope

Tobin directly links assisted dying for the terminally ill to “anyone who is in pain, discomfort, constipated, incontinent, depressed, anxious and so on” by way of potential “benefit”. She conjectures that increasing the restrictions to who may qualify, and the process of qualification, would then be “unfair” to these others. She then goes on to extend the argument to those lacking in decisional capacity such as infants and those with Alzheimer’s. Surely, she says, “it would be ‘unfair’ to deny these people the ‘benefit’ that we will make available to those who are able to request it?

Slippery slope indeed. And it’s wrong. Let me illustrate how, using a topic familiar in political debate over recent years: same-sex marriage.

Opponents of same-sex marriage law reform, when using arguments of the kind Tobin offers (as they often do), say that we can’t allow two men to marry, or two women to marry, because then we would have to allow three or more people to marry. Further down the slippery slope, we would have to allow people to marry animals. Don’t laugh: such things have been argued.

Next—given that under the Corporations Act 2001 (Cth), companies, owners’ corporations and incorporated associations are at law ‘persons’, and now that persons may marry—it would be “unfair” (note that I’ve used imprecision quotation marks around the word as Tobin does) to disallow people from marrying companies and companies from marrying each other.

Finally, using Tobin’s own line of argument, it would be “unfair” to deny infants and those with Alzheimer’s being married off for the alleged “benefit” (those quotation marks again) that everyone else is enjoying, so we must as an unavoidable consequence of the first step of allowing same-sex marriage, allow arranged marriages for babies and those with advanced dementia.

By now it’s easy to spot two terminal flaws in Tobin’s argument.

Firstly, the use of just one criterion (“fairness”—which she leaves imprecisely undefined) as the sole basis for decision making about this legislative reform is indefensible. What about other critical factors such as well-informed, rational, decisional capacity, judging and weighing what a “benefit” is, in the face of intolerable and unrelievable suffering, consistent with one’s own values and beliefs, who may decide, and the right not to participate?

Secondly, any slippery slope’s purported summit (from which changes are argued only to slip downwards) is deeply rooted in the normativity of the present. We are used to marriage being between a man and a woman. In our relative comfort we accept it as ‘normal,’ ‘good’ and the ‘right thing’.

In decision-making scholarship this normativity is known as “anchoring”. Like an anchor around which a boat will swing according to the wind and tide, we take the pivot point (the anchor of the now), as the natural starting point for future decisions, comparing changes only to the present state of affairs.

But it isn’t a valid anchor, and assuming that it is seriously biases our thinking. We need cast our anchor back just one mooring from the current point to see how the anchor tints our decision-making spectacles:

We can’t allow a man and a woman to marry, because then it would be unfair to not allow two men to marry, or two women to marry, and then…”

Clearly, it is imperative that we outlaw marriage altogether.

The upshot of this slippery slope, when followed properly to its own logical conclusions, is that we must deny all rights because we can confect a slippery slope into a hypothetical moral abyss for any right.

B: It’s OK if you don’t mean it

Tobin further argues that relieving distressing symptoms “is good palliative care, even when that relief happens to hasten death.”

She doesn’t name it explicitly, but this is the doctrine of double effect, an argument first crafted in the thirteenth century by Catholic priest Thomas Aquinas. The doctrine suggests that a bad consequence of an action is justifiable if the agent did not intend the bad effect, if the intended good effect outweighs the bad effect, and if the agent applies diligence in attempting to minimise the bad effect. Notice that the doctrine speaks directly about the intentions of the agent and is silent on the views of the person upon whom the agent might act.

Tobin rails against a doctor intentionally administering a lethal dose to a patient (regardless of whether it is the dying patient’s most fervent wish) and slams the expressions “dying with dignity” and “aid in dying” as “fudges”.

Yet the doctrine of double effect, for which she argues in support, is itself a fudge because it says:

It’s OK to for a doctor to decide to and actually kill their patient (after all, they hastened the patient’s death), as long as they don’t mean to, and they mean well.”

What kind of standard is the secret stuff that goes on inside a doctor’s head without reference of any kind to the patient’s own views and desires, when compared to a fully informed, documented and tested request from the patient?

It’s no wonder that many scholars (as do I) consider the doctrine of double effect problematic.

--

Bernadette Tobin is the Director of the Plunkett Centre for Ethics, a joint initiative of St Vincent’s Hospital, Sydney, and Australian Catholic University (ACU). According to ACU, a core mission of the Centre is to “bring a Catholic perspective to all its endeavours”.2

It’s unsurprising then that I detected neither broad thrust nor any detail of Tobin’s ABC opinion piece that deviated from the views of the Vatican. So be it.

There are many points on which Tobin and I agree, such as the potential benefits of palliative care for the dying. I argue, though, that basic scrutiny of the proffered 'principles' reveal them as deeply flawed and unpersuasive.

 

References

1  Tobin, B 2015, Voluntary euthanasia: It can only be a way station to the non-voluntary, ABC Religion and Ethics, viewed 14 Nov 2015, <http://www.abc.net.au/religion/articles/2015/11/13/4351675.htm>.

2  Australian Catholic University 2015, About the Plunkett Centre for Ethics, viewed 14 Nov 2015, <https://www.acu.edu.au/about-acu/institutes-academies-and-centres/plunkett-centre-for-ethics/about-the-centre>.


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On 16th September 2015, the Victorian Director of the Australian Christian Lobby (ACL), Dan Flynn, appeared as a witness to the Victorian Parliament’s end of life choices inquiry being conducted by the Legal and Social Issues Committee. He made a number of mistaken statements, but what was most worrisome was the revelation of the ACL’s real agenda: to wind back patient rights more than a quarter century.

 

Out of touch

In his opening address, Mr Flynn opined that assisted dying was 'not supported' by a 'broad base' of Victorian Christians (not just the ACL). This belief is diametrically at odds with clear and repeated evidence from multiple sources.

In 2012, I reported on a Newspoll study into Australian attitudes towards assisted dying. Not only did a whopping majority of citizens support assisted dying, but so did a great majority of Anglicans, Catholics and other Christians (Francis 2012).

 

Australian attitudes to assisted dying law reform in 2012

Newspoll 2012: Australian attitudes to assisted dying law reform by religion (green=support, red=oppose)

These national results are reflected by a sample of over 60,000 Victorians through the VoteCompass system during the 2014 Victorian election (Stayner 2014). It confirms a substantial majority of Catholics, Protestants, other religious and non-religious Victorians support assisted dying law reform.

 

votecompassvicvereligion2014.jpg

VoteCompass 2014: Victorian attitudes to assisted dying law reform by religion (grey=population average)

Out of date

Mr Flynn then referred to a Tasmanian Parliament’s inquiry into assisted dying which rejected law reform. However, the inquiry to which he refers was held in 1998, when Oregon’s Death With Dignity Act had barely been established, the Northern Territory’s Rights of the Terminally Ill Act had been extinguished within just eight months of coming into operation, and the Dutch, Belgian, Luxembourg, Washington and other legislation and judgements did not yet exist.

So, the Tasmanian Parliament’s rejection came from a position of a then general lack of information. The Oregon law has been in effect since 1997, the Netherlands and Belgium since 2002, Washington since 2008, Luxembourg since 2009, and so on. There is now plenty of evidence that assisted dying law reform doesn’t cause slippery slopes that opponents love to theorise about.

Wrong about ‘United Nations’

Mr Flynn then said that the United Nations had in 2012 expressed concern about a ‘lax attitude’ towards euthanasia in Europe, specifically mentioning the Netherlands and Belgium. This is completely untrue. Because it’s easy to make a simple blooper during a presentation, we’ll put aside the fact that he meant to refer to a completely different organisation: the Council of Europe.

We know this because he read directly from Council of Europe declaration 1859 (Council of Europe Parliamentary Assembly 2012). His ACL submission (Australian Christian Lobby 2015) reports (as he read out) exactly one sentence of the declaration, with his added emphasis, as:

"Euthanasia, in the sense of the intentional killing by act or omission of a dependent human being for his or her alleged benefit, must always be prohibited."

But presented in this manner the statement is quite misleading. As I explain in a forensic analysis of the misinformation campaign about this resolution (Francis 2015), the resolution was utterly clear about its intent: it was not about euthanasia (it explicitly said so), but rather about advance care planning. What the resolution spoke against (in the one sentence conveyed above) is non-voluntary euthanasia, not voluntary euthanasia. Both sides of the assisted dying debate agree that non-voluntary euthanasia (one person deciding for a hastened death on behalf of another) is not acceptable. It is not contentious.

In no way did the Council of Europe's resolution critique voluntary euthanasia or comment on any jurisdiction in which it is legal. And, the United Nations source to which the ACL submission refers was released in 2001, fourteen years ago and at the time of the Netherlands' Euthanasia Act was before the Dutch Parliament. With then limited information about how such laws work in practice, it expressed concern about the upcoming Act.

Wrong about Belgium’s law and practice

Mr Flynn referred vaguely to two cases of euthanasia in Belgium in which persons who requested and received euthanasia were not experiencing intolerable pain, which Mr Flynn asserted was a required safeguard in Belgium’s euthanasia Act. This was another supposed example of transgression of safeguards.  Wrong again.

While the Belgian Euthanasia Act is officially published only in Dutch and French, a robust English translation has been prepared under the supervision of Professor Herman Nys of the Centre for Biomedical Ethics and Law at the Catholic University of Leuven (see Parliament of Belgium 2002). The word ‘pain’ does not appear in the Act… at all. What does the Act have to say about the legislature’s intent on who may qualify? The relevant clause in Section 1 says:

"the patient is in a medically futile condition of constant and unbearable physical or mental suffering that can not be alleviated, resulting from a serious and incurable disorder caused by illness or accident."

It’s abundantly clear: mental suffering from an illness or accident qualifies as much as physical suffering, and the suffering does not need to be ‘pain’ as Mr Flynn mistakenly asserted to the Parliamentary Committee.

Mr Flynn also stated that there are mobile end-of-life units in Belgium. There aren’t. (But there are in the Netherlands, and they must follow precisely all the same requirements as anyone else. They operate to provide choice to patients whose regular or reachable doctors disagree with assisted dying and therefore decline to evaluate whether the patient may qualify under the Act.)

Confused about Advance Care Directives

In further testimony, Mr Flynn opined that the degree to which a doctor should be allowed to override a patient’s Advance Care Directive (ACD) is in part influenced by whether the doctor can speak with the patient.

But if the patient can currently speak and participate in decision-making, the advance care directive doesn’t apply: it is mute and of no effect. An ACD only applies when the patient cannot currently participate in their own decision making. That’s (only) what it’s for.

Winding rights back more than a quarter century

But the most worrying aspect Mr Flynn’s testimony was the revelation of ACL’s opposition to the right to refuse unwanted medical treatment.

The Medical Treatment Act 1998 (Vic) has enshrined for now more than twenty five years a patient’s right to refuse any unwanted medical treatments. In 2003 the Supreme Court of Victoria determined that artificial nutrition and hydration (i.e. via tubes) is medical treatment and can therefore be refused under the Act.

But Mr Flynn repeatedly argued that withholding or withdrawing artificial nutrition and hydration, if the patient’s body could ‘absorb’ them, could amount to physician-assisted suicide, and that doctors must be allowed to override refusals. On the matter of patient autonomy, he said that some autonomy rests "with the patients, but a lot of the autonomy in fact is with the doctor”.

When asked if a Jehovah's Witness who refuses a life-saving and simple blood transfusion ought to be allowed to do so, he conceded that they should be entitled to, but that such a case was a “bit of an outlier”. He didn’t explain on what moral grounds one person could refuse a simple procedure to save their life, but another person mustn’t be allowed to even if the likelihood of saving life was doubtful.              

So, the ACL’s real agenda is revealed: it recommends winding back the legislative clock more than a quarter century so as to force patients to endure some medical interventions that they don’t want and firmly refuse, if the doctor wishes to proceed.

No wonder the Committee repeatedly questioned Mr Flynn to ensure they had heard and understood his testimony correctly. In conclusion, Committee Chair Edward O’Donohue observed that Mr Flynn’s evidence was “quite surprising” and “quite contrary” to wide evidence already given.

And it’s no wonder that Theo Mackaay, General Secretary of the Victorian Council of Churches—a group of 30 member churches representing mainstream Christianity—criticised the ACL as “fundamentally conservative” and expressed “deep concern that media portrayal of statements from an established and narrow focused lobby group is presented as being representative of the entire Christian community” (Uniting Church in Australia 2011).

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References

Australian Christian Lobby 2015, Submission to the Legal and Social Issues Committee on the Inquiry inito End of Life Choices, Parliament of Victoria, Melbourne, pp. 1-17.

Council of Europe Parliamentary Assembly 2012, Resolution 1859 (2012): Protecting human rights and dignity by taking into account previously expressed wishes of patients, Europe, 25 Jan, pp. 2.

Francis, N 2012, Australian public desire for legalisation of assisted dying in restricted circumstances, YourLastRight.com, Melbourne, pp. 11.

Francis, N 2015, Conservatives fudge Council of Europe declaration 1859, DyingForChoice.com, viewed 2 Jun 2015, <http://www.dyingforchoice.com/f-files/conservatives-fudge-council-europe-declaration-1859>.

Parliament of Belgium 2002, 'The Belgian Act on Euthanasia of May 28th 2002 (unofficial English translation)', Ethical Perspectives, vol. 9, no. 2-3, pp. 182-188.

Stayner, G 2014, Victorian election 2014: Electorate overwhelmingly back voluntary euthanasia, Vote Compass reveals, ABC News, viewed 4 Dec 2014, <http://www.abc.net.au/news/2014-11-23/victorians-back-voluntary-euthanasia-vote-compass/5910668>.

Uniting Church in Australia 2011, Australian Christian Lobby does not represent all Australian Christians, nor all Christian viewpoints, 8 Dec, Media Room, viewed 11 Dec 2011, <http://blogs.victas.uca.org.au/mediaroom/?p=971>.


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ABC journalists Jesse Dorsett and Eleni Roussos recently reported remarks made by the Northern Territory (Australia) Health Minister John Elferink, about the cost of supporting dying patients in the last year of life. Elferink said that dying patients could be personally persuaded to forgo medical treatment specifically in order to have more money available for their grandkids' 'opportunities'. Why is he wrong and what should he do about it?

Stating that "we've pretty much reached the limit of how old we can grow as a species", Minister Elferink estimated that elderly people with terminal illness cost the Northern Territory $1 million in health care costs in the last year of life. Even more astonishingly, he opined that the dying might be persuaded to obligingly shuffle off this mortal coil with the argument that "we can continue treatment but by discontinuing treatment your grandchildren would have a better opportunity" and "think of the work that could be achieved ... in the first year of life with $1 million".

He acknowledged that his remarks would be controversial.

No kidding.

Here are some reader comments from NT News:

"The Elf should be sacked. To say the seniors are a waste of money is abhorrent." — T. Miller

"Watch out Elf, you'll be old one day too." — Elli

"I worked all my life until 69 and paid taxes but judging from your comments us oldies are not worth saving." — Maree

"Hopefully he will lose his seat at the next election having shown us what an uncaring person he is. His statement is an insult to seniors and their loving families too." — Sue

What's wrong with his argument that ill seniors ought to nobly sacrifice themselves at the altar of general public 'good'? Plenty: but let's stick with just three, beyond the obvious fact that Northern Territory seniors are seriously offended by his comments and they vote.

Firstly, this is cheap dog-whistle politics that once again stupidly pitches one Australian against another (remember the infamous 'Leaners versus Lifters' campaign last year?) at the expense of insights and innovative solutions that satisfy everyone's needs.

Secondly, his estimate of the average cost of last-year-of-life medical costs beggars belief.

In a careful analysis of the cost of the last year of hospital care for New South Wales  patients, Kardamanidis and colleagues1 found they varied from around $7,000 to $18,000. For the sake of argument, let's use a round figure of $15,000. And, given these are 'hospital' costs (where most dying people end up) but don't cover everything like pharmaceuticals, home care and the like, let's double it to $30,000. That's fairly consistent with figures from the USA, and is likely to be replicated across Australia.

But, heck, the Northern Territory is a vast place with many remote communities, so let's toss in an extra average $20,000 for the Royal Flying Doctor Service on top. That's a total average of $50,000.

Yet John Elferink's 'estimate' is a jaw-dropping twenty times even that generous figure. Is he off with the fairies?

Kardamanidis' study adds another dimension to our insights, too. They found that the average cost of hospital care decreased with old age: $17,927 for 65–74yo; $14,498 for 75–84yo; $10,403 for 85–94yo; and $7,028 for 95+yo. The very elderly dying use hospital services far less than those less old.

The Minister's perceptions and ageist 'formula' for self-sacrifice is seriously at odds with actual evidence.

And thirdly, his superficial, combative assessment quite overlooks excellent and readily-available solutions. It's well-established that higher differential end-of-life healthcare costs are significantly associated with attemps at life-sustaining ICU interventions (e.g. a UK study by Hanchate and colleagues2).

But there's more. An extensive multi-centre USA study by Zhang and colleagues3 reveals that simply by having better conversations with their doctors, advanced cancer patients not only reduced the amount of medical interventions, but achieved better quality of death.

By improving real conversations about the the likelihood of futility versus effectiveness of medical interventions at the end of life, balanced with information about the invasiveness or burden of enduring them, patients themselves can avoid interventions they judge to be of no net value, or even counterproductive.

So, Minister, quit the ill-informed and cheap political shots. Seek informed and practial advice and get on with the job of governing for all Territorians. Implement policies that encourage and facilitate real and meaningful conversations between patients and their doctors at end of life. The health bill will naturally go down for ethically sound—rather than ethical stink-bomb—reasons.

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  1. Kardamanidis, K, Lim, K, Da Cunha, C, Taylor, LK & Jorm, LR 2007, 'Hospital costs of older people in New South Wales in the last year of life', Medical Journal of Australia, vol. 187, no. 7, pp. 383-386.
  2. Hanchate, A, Kronman, AC, Young-Xu, Y, Ash, AS & Emanuel, E 2009, 'Racial and ethnic differences in end-of-life costs: why do minorities cost more than whites?', Archives of Internal Medicine, vol. 169, no. 5, Mar 9, pp. 493-501.
  3. Zhang, B, Wright, AA, Huskamp, HA, Nilsson, ME, Maciejewski, ML, Earle, CC, Block, SD, Maciejewski, PK & Prigerson, HG 2009, 'Health care costs in the last week of life associations with End-of-life conversations', Archives of Internal Medicine, vol. 169, no. 5, pp. 480-488.

 

Update 25th August

Minister Elferink phoned me directly to put his case. We had a respectful if brief conversation (he was in a Parliamentary session). He said that the journalist's report had misrepresented his statements. We agreed that at the very least, the remarks he made were injudicious in the context of end-of-life, and I reiterated that I thought suggesting in any manner that people should give up part of their lives for the economic benefit of others was repugnant. I also reiterated that should the NT Government choose to invest a modest sum in the education of doctors in how to hold respectful, open conversations with patients and in a way that the truly listened to both what was being said as well as left unsaid, that patients would far less often choose futile and burdensome treatments they really didn't want. This would lead to less stress on the patient, their families and healthcare workers, and have the added benefit not only of a better quality of death, but a significantly reduced state healthcare budget.

I hope the Minister takes good evidence and advice on board, and adjusts his stance and the NT Government's approach to medical end-of-life decisions.


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The opinion piece in The Age.

In today’s Fairfax press, Sydney woman Mary Ticinovic advances a number of reasons as to why she believes that assisted dying is not merciful. The by-line identifies her as a “clinical psychologist”. But her arguments are not founded on the basic tenets of psychology. How so?

Read Mary’s opinion piece in The Age

All life is precious

Mary argues that to support assisted dying is to go “against the principle that all life is precious.” She offers no substantive explanation, invoking the notion of ‘human worth’, stating that it exists regardless of the health state or suffering of the person, and complaining that assisted dying promotes the idea that “your life is no longer worth living”.

These are not psychological arguments. We can agree that life is precious. But reluctantly deciding to hasten one’s death in the face of intolerable and unrelievable terminal suffering doesn’t negate that preciousness. Indeed, to some people, choosing assisted dying can evidence the preciousness of one’s very capacities and values as a human.

Whose standards?

Mary further muses over “by whose standards would we judge if life is not worthwhile any more”, as though this is only some vague theoretical argument amongst philosophers or doctors. This is not a psychological argument, either. Under assisted dying law reform, it is only the dying individual’s world-view and circumstances that determine whether he or she feels life is worth living: not anyone else. General philosophical theory doesn’t come into it.

She further argues that assisted dying “promotes a utilitarian view of humanity”. This is not a psychological argument, either. Nor is it valid. Indeed, legalised assisted dying respects the very nature of the diversity of humanity by enabling the world-views many people hold most dear: that of making rational choices consistent with their own beliefs, values and circumstances. Some patients, for example in Oregon, are deeply religious and believe that their God is compassionate and understands and respects their choice to avoid intolerable suffering. That’s not utilitarian at all.

Harm and the Hippocratic Oath

Mary invokes the Hippocratic Oath said by her medical friends to oblige doctors to “do no harm” and that the medical role is “in healing and helping the patient to be restored to health.” This is simplistic nonsense, not a psychological argument.

Firstly, doctors do harm all the time: think of surgical procedures or chemotherapy. Many medical interventions do harm, but we accept the harm because we expect there to be a commensurately greater good as a result.

Secondly, medical practice cannot always “restore the patient to health” as Mary exclusively puts it. What then? The dying patient may judge that the unrelievable suffering they will experience along the path to death is a greater harm than dying a little earlier. And, doctors also have a primary duty to relieve suffering, which Mary doesn’t mention. What is under review is whether a doctor may participate in the relief of intolerable and unrelievable suffering— by hastening death—if the patient believes this is the lesser harm.

Thirdly, the Hippocratic Oath is around 2,300 years old. It requires doctors to swear allegiance to ancient Greek gods. It forbids women from becoming doctors. It requires current doctors to train the next generation free of charge, and it forbids surgery. Contemporary doctors don’t take it, and it’s certainly not “part of training” as Mary mistakenly states.

None of these are psychology arguments.

'Sucker’s choice'

Mary then argues that requiring dying patients to endure until the end promotes—and that assisted dying prevents—“fostering gratitude”, “reconciling hurts or differences with family members or friends” and “showing them strategies or different ways to approach their pain and suffering”.

But, in jurisdictions where assisted dying is legal, for example in Oregon in the USA, these are precisely things that are encouraged under assisted dying. Doctors are required to inform applicants of available medical and palliative interventions. Family gathers on notice of an anticipated death, music and poetry is shared, and expressions of love, devotion and gratitude are exchanged.

If a dying patient has no intention of reconciling with family or reflecting on approaches to dealing with their pain and suffering under an assisted dying law, precisely the same intention applies to the current regime that requires the patient to endure until the end. To assume a difference is a false dichotomy.

Obligatory compassion

Mary also argues that assisted dying ought to remain outlawed because “nursing a sick loved one is a way to give back”. This is yet another specious non-psychology argument. It promotes the ‘right’ of the ‘nurse’ to express love and devotion through ‘caring interventions’ at the expense of the dying patient’s own world view and deeply-held wish for a hastened death. Now who’s being utilitarian?

The upshot

I ran Mary’s opinion piece past an experienced psychologist, who described it as little to do with psychology. Note that neither of us has experience of or is commenting on Mary’s expertise as a clinical psychologist: she may indeed be a very good one.

My associate wondered out loud if Mary’s arguments were based more on underlying religious views than anything else. I agreed: they seemed to me remarkably consistent with the arguments advanced by religious opponents, even though they avoided directly religious words. So I did a little research.

It turns out that Mary is a committed and active Sydney Catholic.* Evidence abounds of her devotion to the Catholic tradition, and I commend her for her conscientious reflective practice and participation in it.

However, I argue that neither the stated psychological qualification nor the unstated religious affiliation make the offered arguments valid.

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* By way of fairness, I place on the record that I am agnostic.


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Victoria's VAD Bill has passed both Houses and is now an Act.

Update 7th December 2017

At 4:10pm on Wednesday 22nd November, the Voluntary Assisted Dying Bill passed both Houses of the Victorian Parliament. The Victorian Governor has signed the Bill into an Act, so it is now law in Victoria, though not yet in effect. The Act will come into effect in June 2019, given Victorian residents facing intolerable suffering from an incurable illness, and who meet a number of hurdles, to lawfully request and obtain a peaceful death assisted by their doctor.


Update 20th October 2017

Victorians are a step closer to having the choice of assisted dying in the face of a terminal illness. After a marathon all-nighter sitting, the Legislative Assembly (lower house) this morning passed the Voluntary Assisted Dying Bill 2017. The Bill will now be sent to the Legislative Council (upper house).

The vote was won convincingly at 47:37, despite heroic efforts of opponents to create FUD (fear, uncertainty and doubt) through extensive misinformation, and filibustering the Bill's progress by putting up amendements to numerous clauses.

The Legislative Council is expected to debate the Bill next month.


Update 21st September 2017

In great news for Victorians, yesterday (20th September 2017), the Government tabled its Voluntary Assisted Dying Bill into the lower house of the legislature. The Bill is comprehensive, offering Victorians a further end-of-life choice, with numerous safeguards, and the stiffest pentalties worldwide for breaking the rules.

  • Read the Bill's explanatory memorandum (PDF, 273Kb).
  • Read the whole Bill (PDF, 945Kb).
     

Parliamentary debate on the Bill is likely to commence mid October, so now is the time to contact your own members of the Victorian parliament and let them know you support the Bill. If you don't know which electorate you live in or who your members are, or don't have their contact details, then:

  • Visit the Victorian Electoral Commission website and enter your home address, at the top of the page, to find out. It will show you your upper and lower house electorates. Make a note of the lower house electorate (District, in purple).
  • Then go to the Victorian Parliament website and enter your lower house electorate name in the Electorate field (the last one) and click Search, to find your lower house member. Note down your Member's contact details.
  • Then, also click the [Electorate] button on the Member's page (on the right) and then click the Region link on the target page. This also gives you the names and details of your five upper house parliamentarians.
  • Take down their contact details and let them all know you're asking them to support the Bill.

The Standing Committee on Legal and Social Issues (Legislation and References) of the Parliament of Victoria, Australia, has recommended that the Government introduce leglislation to allow assisted dying in restricted circumstances.

Update 9th June 2016

In excellent news for Victorians, the LSIC has recommended that the Government legislate to allow assisted dying in restricted circumstances.

 

"Recommendation 49: The Government should introduce legislation to allow adults with decision making capacity, suffering from a serious and incurable condition who are at the end of life to be provided assistance to die in certain circumstances."

The recommendations include:

  • Eligibility: A mentally competent adult experiencing intolerable and unrelievable suffering, with weeks or months to live. Must be ordinarily resident in Victoria and an Australian citizen or permanent resident.
  • A process by which requests may be made (and rescinded).
  • Checks and tests to ensure that relevant critieria have been met.
  • Establishment of an authority to receive reports of assisted dying and present reports to Parliament.
  • That conscientious objection (to not participate) is protected.
  • That in the case that a patient cannot self-administer lethal medication, a doctor may do so at the patient's request.

 
You can read the full report here.

 

Important!

The recommendation has yet to translate into a Bill and a majority vote of both Houses of the Victorian Parliament. Some parliamentarians are intractably opposed to this reform and it's important that policitians hear from you to know that you want them to support the reform.

Sign the petition to go to all Victorian parliamentarians now, and spread the word!

 


 

 

Submissions were invited from interested individuals and organisations into end-of-life decision-making in Victoria, including:

  • current practices including palliative care;
  • whether current legislation satisfactorily encompasses contemporary community standards, aspirations and views;
  • a review of legislation and practices in other jurisdictions, both within Australia and overseas; and
  • what types of legislative change may be required.

Submissions to the inquiry, which have not been requested to remain confidential, are published on the Parliamentary website here.

Despite the Terms of Reference for the inquiry  (below) do not mention assisted dying, almost all submissions to the inquiry have been made either to support or oppose the legalisation of voluntary euthanasia or physician-assisted dying. Clearly, the community is strongly engaged with the issue.

More information is available on the Victorian Parliament Inquiry's website.

 

Submissions have now closed.

 

Terms of Reference   

 

STANDING COMMITTEE ON LEGAL AND
SOCIAL ISSUES
(Legislation and References)

 

Terms of Reference

58th Parliament

 

Inquiry into End of Life Choices

 

On 7 May 2015 the Legislative Council agreed to the following motion:

That pursuant to Sessional Order 6 this House requires the Legal and Social Issues Committee to inquire into, consider and report, no later than 31 May 2016, on the need for laws in Victoria to allow citizens to make informed decisions regarding their own end of life choices and, in particular, the Committee should —

  1. assess the practices currently being utilised within the medical community to assist a person to exercise their preferences for the way they want to manage their end of life, including the role of palliative care;
  2. review the current framework of legislation, proposed legislation and other relevant reports and materials in other Australian states and territories and overseas jurisdictions; and
  3. consider what type of legislative change may be required, including an examination of any federal laws that may impact such legislation.

 

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Last weekend in Adelaide, Australia, delegates from around the world congregated at a conference convened by Paul Russell's group, "HOPE". The conference's purpose was to share information in opposition to assisted dying law reform. It was held in Adelaide partly because it is described as the 'virtual epicenter' of moves to legalise voluntary euthanasia. That's a great credit to Frances Coombe and her team at the South Australian Voluntary Euthanasia Society, who work tirelessly towards reform that the overwhelming majority of citizens want.

But here's the rub. Despite being an international conference with a public website advertising its value and program, it was open only to "anyone who opposes euthanasia and assisted suicide."

How curious.

When I chaired the global World Federation of Right To Die Societies conference in Melbourne, Australia in 2010, of course we had closed sessions for our people. That's natural and proper.

But we also had a full day of sessions open to the public. Plenty of opponents attended.

Not only that, but I also ensured that a range of voices were heard in the official program, too. Father Bill Uren, naturally opposed from the viewpoint of the Catholic tradition, was gracious enough to participate in a panel discussion. There was of course lively debate, and, I am pleased to say, all conducted with courtesy despite the differences of perspective.

All good, open and healthy stuff.

So the question is, why did the anti-euthanasia delegates in Adelaide feel it necessary to conduct their entire conference in secret? Were they scared of a range of views? Might there have been misinformation that could be challenged? Some other reason?

I guess time will tell.


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