Legislative reform

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You only have to look to understand who is campaigning against your right to choose an assisted death in the face of intolerable and unrelievable suffering.

A case in point is a massive advertisement published in both of Melbourne’s daily newspapers: News Corp’s The Herald Sun (right-wing) and Fairfax Media’s The Age (left-wing). The ad was published in 2008 when Victorian MLC Colleen Hartland introduced the Medical Treatment (Physician Assisted Dying) Bill into the State legislature.

The Catholic Archbishop of Melbourne, Denis Hart, also sent the advertisement as a letter to all members of the Victorian Parliament.1

So, who are the advertisement’s signatories? I’ve listed them all in Table 1.
 

Table 1: Signatories to the 2008 Victorian anti-assisted-dying advertisement

Rt Rev. Graham Bradbeer
Moderator, Presbyterian Church of Victoria

The Rev. Fr Graeme A. Michell, FSSM
Parish Priest, Anglican Catholic Parish of St Mary the Virgin, Melbourne

Rev. Ross Carter
Uniting Church in Australia

Pastor Graham Nelson
Senior Pastor, Life Ministry Centre

Rev. Dr Max Champion
National Chair of the Assembly of Confessing Congregations within the Uniting Church in Australia

Rev. David Palmer
Convenor Church and Nation Committee, Presbyterian Church of Victoria

Pastor Mark Conner
Senior Minister of CityLife Church

Rev. Greg Pietsch
President, Victorian District, Lutheran Church of Australia

Dr Denise Cooper-Clarke
Adjunct Lecturer, Ridley Melbourne Mission and Ministry College

Marlene Pietsch
[Director of the Lutheran School of Theology]
Lutheran Church of Australia

Rabbi Dr Shimon Cowen
Director Institute for Judaism and Civilization

Very Rev. Dr Michael Protopopov
Dean - Russian Orthodox Church in Australia

Rev. Megan Curlis-Gibson
St Hilary’s Anglican Church, Kew

Marcia Riordan
Respect Life Office, Catholic Archdiocese of Melbourne

Archbishop Dr Philip Freier
Anglican Church of Melbourne

Metropolitan Archbishop Paul Saliba
Primate of Antiochian Orthodox Archdiocese of Australia, New Zealand & the Philippines

Imam Riad Galil
West Heidelburg Mosque
Member of the Victorian Board of Imams

Bishop Peter Stasiuk CSSR DD
Eparchy of Saints Peter and Paul of Melbourne, for Ukrainian Catholics in Australia and New Zealand

Rev. Father James Grant SSC
Chaplains Without Borders,
Melbourne Anglican Diocese

Dale Stephenson
Senior Pastor Crossway Baptist Church

Assoc. Professor Afif Hadj MB BS (Melb) FRACS
Director of Surgery, Director of Medical Training, Maroondah Hospital (A Monash University Teaching Hospital)

Pastor Peter Stevens
Victorian State Officer
Festival of Light Australia

Archbishop Denis Hart
Catholic Archdiocese of Melbourne

Dr Nicholas Tonti-Filippini
Associate Dean, JPII Institute for Marriage and Family Melbourne

Rev. Fr Geoff Harvey
Priest of the Good Shepherd Antiochian Orthodox Mission Parish, based at Monash University

Rob Ward
Victorian State Director Australian Christian Lobby

Assoc. Professor Rosalie Hudson
Aged Care & Palliative Care consultant/educator

Jim Zubic
President of Orthodox Chaplaincy Association

Peter McHugh
Senior Pastor Christian City Church, Whitehorse

Persons in blue: Career is religion

 

Almost all of them are religious by career

To save you a lot of time assessing who these people are, I’ve coloured in blue all the folks whose job it is to espouse religion — at least, their own hierarchy’s view of it.

That’s 27 of the 29 signatories who by career are intensely immersed in their own religious perspective of the world; established and promoted through institutional doctrine.

But what about the other two?

What about the other two signatories, Assoc. Prof. Afif Hadi and Assoc. Prof. Rosalie Hudson (in yellow)?

Notice that Prof. Afif Hadi’s entry lists only his surgery profession. Highly relevant, but not mentioned, is that he was President (previously Vice Chairman) of the Australian and New Zealand Board of Trustees, Antiochian Orthodox Archdiocese of Australia and New Zealand. As head of the Board of the Archdiocese, his religious signature is intimately entwined with another: Metropolitan Archbishop Paul Saliba, the Primate of the Antiochian Orthodox Archdiocese.

Assoc. Prof. Rosalie Hudson’s listing too, mentions only seemingly secular links. What is omitted is that she is or was Chair of the University of Divinity (a multi-faith religious institution) Human Research Ethics Committee, Secretary of the Uniting Church’s committee on bioethics, a member of the Interfaith Committee, and an Academic Associate at Charles Sturt University’s School of Theology.

Thus, both Prof. Hadi and Assoc. Prof. Hudson are also deeply rooted in religious faith. The point is not to make any criticism of their faith or practice, but merely to observe the deeply religious connections to opposing assisted dying law reform. It’s worth mentioning that both Hadi and Hudson do valuable charity work.

So, all of them are deeply religious

A pertinent question to ask is: ‘What proportion of the signatories are neutral, scholarly researchers who have studied the empirical evidence from jurisdictions where assisted dying is already lawful?’ Answer: None of them. Enough said.

And what proportion of the signatories to this anti-assisted dying advertisement are very deeply invested in organised religion? The simple answer is as usual: 100%, all of them.

Disconnected from their flocks

Critically, these career-religious fail to reflect the views of their own flocks. We know from repeated polls, for example, that three out of four Australian Catholics, more than three out of four Uniting Church members, and four out of five Anglicans (Church of England) support assisted dying law reform.

How have the religious hierarchy become so out of touch? Perhaps Mr Ian Wood, co-founder of Christians Supporting Choice for Voluntary Euthanasia might be able to offer his own insights.

This kind of clerical disconnect from the contemporary will of the people is one of the key reasons Australians are deserting religion in droves, as successive censuses show.

Conclusion

The evidence is irrefutable. Those who are actively organised to oppose your right to choose an assisted death are deeply religious, even when they use seemingly secular arguments (more on those later).

They are entitled to their opinions for themselves. But what right do they have to deny the vast majority of Australians, who do not agree with their views, the right to choose?

To phrase it in the personal, why does the Catholic Archbishop of Melbourrne, Denis Hart, think it appropriate to demand that Mr Geoff Drummond, a Buddhist, should have suffered against his will at the end of life for the Archbishop's version of faith, rather than Mr Drummond's own spiritual beliefs? Why does Rabbi Shimon Cowen think it appropriate to demand that Mr Alan Rosendorff, a fellow Jew, should have suffered against his will at the end of life for the Rabbi's version of faith, rather than Mr Rosendorff's own carefully-considered and deeply-held views? And why does Imam Riad Galil think it appropriate to demand that Mr Peter Short, not a Muslim, should have suffered against his will at the end of life for the Imam's beliefs, rather than his own?

Perhaps hubris remains alive and well amongst religious conservatives?

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Declaration: In fairness to those mentioned in this article, I openly declare that I am agnostic.

 

References

  1. Bradbeer, G, Rt Rev., Carter, R, Rev., Champion, M, Rev. Dr, Conner, M, Pastor, Cooper-Clarke, D, Dr, Cowen, S, Rabbi Dr, Curlis-Gibson, M, Rev., Freier, P, Archbishop Dr, Galil, R, Imam, Grant SSC, J, Rev. Fr, Hadj, A, Assoc. Prof., Hart, D, Archbishop, Harvey, G, Rev. Fr, Hudson, R, Assoc. Prof., McHugh, P, Michell, GA, Rev. Fr, Nelson, G, Pastor, Palmer, D, Rev., Pietsch, G, Rev., Pietsch, M, Protopopov, M, Very Rev. Dr, Riordan, M, Saliba, P, Metropolitan Archbishop, Stasiuk, P, Bishop, Stephenson, D, Stevens, P, Pastor, Tonti-Filippini, N, Dr, Ward, R & Zubic, J 2008, Reject physician assisted dying - An open letter to Victorian MPs, Catholic Archdiocese of Melbourne, viewed 13 Jun 2008, http://www.cam.org.au/Euthanasia.aspx.

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BMA House in Tavistock Square, London, home to the British Medical Association since 1925.

A meeting has been held at BMA House in Tavistock Square, the home of the British Medical Association since 1925, to discuss assisted dying law reform.1

The meeting, chaired by Lord Moynihan and attended by eminent doctors, dignitaries and the President of the Free Church Council, discussed and voted on the motion:

"That in the interests of humanity it is desirable that voluntary euthanasia subject to adequate safeguards should be legalized for persons desiring it who are suffering from incurable, fatal, and painful disease."

Familiar arguments for and against were proffered by a range of speakers. In addition a range of letters of support and apologies for inability to attend in person were read, from Lord Ponsonby, Sir Frederick Menzies, Sir P. Varrier-Jones, Mr McAdam Eccles, Sir John Robertson, Sir Arnold Wilson MP, Miss Eleanor Rathbone MP, and a small number of well-known clergy.

Rev. Norwood, President of the National Free Church Council, strongly supported the motion.

The motion was put to the vote and passed by a majority of ten to one.

The year? 1935.

The meeting established the Voluntary Euthanasia Legalization Society of the UK.

Subscription to the Society was set at a minimum of five shillings (about £57, US$76 or AUD$100 in today's money), but this was once only and not annually, "for it was hoped the society would soon disappear, owing to the success of its efforts."

Founding members were just a little over-optimistic.

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1. Fleming, RA 1935, 'Voluntary Euthanasia', British Medical Journal, vol. 2, no. 3910, p. 1181.

 


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Yesterday in a prominent opinion piece in The Age newspaper,1 palliative care specialists argued that palliative care is imperfect and in need of an injection of funds. I agree on both counts.

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

Key arguments

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

The filibuster

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

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

Notice two things about their recommendation—the filibuster.

Maximising what cannot be done

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

Maximising the delay

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

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

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

But all that was a ruse anyhow

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

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

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

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

Who are these people, anyway?

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

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

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

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

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

The ‘Catholic card’

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

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

Religious opposition dressed up in secular garb

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

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

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

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

The importance of mutual respect

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

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

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

Conclusion

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

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

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

 

References

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

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

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

 

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

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

 
Canadian Prime Minister Justin Trudeau supported the legislation.

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

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The Australian Federal election is now officially 'on'. You can take Vote Compass' questionnaire and indicate your views on assisted dying for the terminally ill, amongst other things.

Again this election, Vote Compass is running a service that allows you to explore how your views align with various parties and candidates.

One of the key questions in the Vote Compass repertoir is to agree or disagree with the statement "Terminally ill patients should be able to legally end their own lives with medical assistance."

You can indicate your support for this long-overdue law reform by completing the questions at Vote Compass here.

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The Sydney Morning Herald opinion piece by Dr Andrew McGee

Dr Andrew McGee, Senior Lecturer in law at Queensland University of Technology, published an opinion piece, "Why Bob Hawke is wrong about euthanasia," opposing assisted dying law reform in the Sydney Morning Herald on the 19th April. He invokes straw-man arguments and conflates different issues. 

His ‘they might choose to die too early’ argument overlooks both the current tragedy of the terminally ill suiciding by violent means, as well as that in currently lawful jurisdictions like Oregon and Washington, a third of people who qualify for their medication never take it: it provides strong psychological relief that there is another option available whether they take it or not.

His argument that any boundary in regard to who may qualify would be arbitrary is to overlook the intrinsic boundary-ness of law. A minor (under 18) cannot lawfully buy alcohol. A person may not lawfully participate in ‘sophisticated’ investments unless they earn more than $250k a year. We accept legal boundaries as normal and necessary even if some feel a particular boundary is arbitrary. Necessarily, some will be excluded.

Further, arguing against assisted dying law reform on the principle that it’s ‘complicated’ is to argue against law in any case of alleged complexity. Marriage and divorce are complicated. Should we outlaw those?

Dr McGee’s arguments lack coherence and consistency and comprehensively fail to mount a persuasive case against the legalisation of assisted dying.


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The Parliament of Victoria is conducting an inquiry into end-of-life decision making.

The standing Legal and Social Issues Comittee of the Parliament of Victoria, Australia, is currently conducting an inquiry into end-of-life decision making, to inform any legislative changes required in order to reflect contemprary views and best practice.

The inquiry has certainly engaged the community: it has received a record number of submissions. The Legal and Social Issues Committee typically receives a couple of dozen submissions to any of its inquiries, occasionally even sixty or eighty. In contrast, the inquiry on end-of-life decision making has received more than one thousand (1,017) submissions.

vicparlsubmissions2015.jpg

Most of the submissions (98%), including DyingForChoice.com's, are published on the Committee's website, with the tiny remainder kept confidential at the request of the submitter.

The terms of reference for the inquiry are completely silent on the matter of assisted dying. The Terms talk about "making informed decisions", "exercising preferences" and "the role of palliative care" in the context of current legislation and any required changes.

So, given that assisted dying is not mentioned in the Terms of Reference, you'd expect a modest number of submissions to address the issue, right? Wrong.

Of the submissions that are published on the Committee's website (and which I could therefore read), a staggering 95.4% of them make specific and deliberate points about assisted dying law reform, and 60.2% of the published submissions make points in favour of law reform to permit assisted dying in one form or another.

vicparlsubstances2015.jpg

There is no clearer indication than this of how deeply engaged the Victorian public is with end-of-life decision making, and how important assisted dying law reform is to the options they might consider.

The Leglislative Council and this Committee are to be highly commended for establishing and conducting the inquiry. Public hearings with witness appearances have further helped inform the Committee and its Secretariat. The transcript of my appearance can be read here.

We the people of Victoria look forward with anticipation to the final report of the Committee, and the recommendations it makes. The Committee must report back to the Legislative Council no later than 31st May 2016. But, given the tsunami of submissions and the continuing public hearings, we won't be surprised if the Committee is granted an extension to complete its work.


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On Friday September 11th 2015, the California legislature passed an assisted dying bill, the End Of Life Option Act, modelled on the Oregon Death With Dignity Act which has been in effect since 1997. It had been a long and tortuous wait to see if Governor Jerry Brown would sign the Bill into law.

It is reported that Governor Brown struggled to decide whether to sign the Bill which was actively opposed by the Catholic Church. Governor Brown is a former Jesuit seminary student. He sought views from his doctors, from a Catholic Bishop, from disability advocates, retired South African Archbishop Desmond Tutu and others, to reach a decision. While he had given no indication of his views or intention to sign, historically he has supported abortion rights, contrary to the teachings of the Vatican.

On Monday October 5th, he signed the Bill. It will come into effect 90 days after the California legislature adjourns its special session on healthcare. But that may not be for some months yet, even as long as late next year.

Governor Brown said "I have considered the theological and religious perspectives that any deliberate shortening of one's life is sinful."

"I do not know what I would do if I were dying in prolonged and excrutiating pain. I am certain, however, that it would be a comfort to be able to consider the otpions afforded by this bill. And I wouldn't deny that right to others," he wrote in his affirmation of the Bill.

California joins Oregon, Washington, Montana and Vermont to afford their citizens the respect to make their own decicions about the possibility of a hastened death at the end of life. Around one in six Americans now has legal access to restricted assisted dying.

Dissatisfied that the legislature and the Governor have spoken on behalf of the overwhelming majority of Californians who support the measure, Catholic-backed Californians Against Assisted Suicide is considering a range of countermeasures, including a legal challenge and a referendum.


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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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The Victorian Premier doesn't support assisted dying law reform - at this stage.

Victorian Premier Daniel Andrews reports that he doesn’t support voluntary euthanasia “at this stage” (The Age, 21 Jun 2015), and that his objections are not based on his Catholic faith. I think it is fair to take him at his word given his historical record in facilitating conversation and reform around values-based issues such as abortion. But his current thinking on assisted dying is indefensible as I explain.

We know from repeated Newspoll Australia studies that amongst the millions of Victorians who want the State to respect their wish to make their own choices at the end of life, three out of four Australian Catholics are in favour of legalised assisted dying—at odds with the ‘traditional’ Catholic stance. Mr Andrews, like a majority of Catholic Australians, may simply not agree with the Vatican line on assisted dying choice, as they don't on a range of matters.

Mr Andrews says that his current objections instead revolve around ‘safeguard’ and ‘balance’ issues in a context of finite healthcare resources.

Let’s examine that stance in the light of the Legislative Council committee inquiry recently launched into end-of-life decision making.

The Medical Treatment Act 1988 confers the right to Victorian patients to refuse any medical treatment. The right applies even if the treatment is life-saving, for example a simple blood transfusion. The Act contains no ‘safeguards’, as the Premier refers to them:

  • The patient is not required to give any reason;
  • The doctor is not required to inform the patient of their condition or likely consequences of any treatment or its refusal;
  • The doctor is not required to consider or assess the patient’s mental capacity to decide including depression;
  • The doctor is not required to recommend a palliative consult (if relevant);
  • The doctor is not required to consult any colleagues for a further opinion about the patient’s illness or mental capacity;
  • There is no obligation on the patient to consider their decision again after a short time;
  • While there is a standard form 'Refusal of Medical Treatment' document that can be signed to provide documentary evidence of the refusal, it is not mandatory;
  • There is no mandated path of reporting or review.

 
Indeed, a doctor who goes on to administer medical interventions to the patient who has refused them is guilty of the offence of ‘medical trespass’ and can be prosecuted.

Further, it is quite legal for a patient to decide to die by voluntary refusal of food and fluids, an option suggested as appropriate by Dr Bill Sylvester in an IQ2 debate at Melbourne Town Hall in November 2012, to a hostile reaction from the audience. Some doctors provide respite care to patients choosing this path. however, like refusal of medical treatment, there are no legislated safeguards.

On the basis of these two kinds of end-of-life decision making that have been lawful for at least a quarter century in Victoria, and which have no legislated safeguards, what evidence do we have of the so-called ‘slippery slope’ of resource-strapped healthcare providers or greedy relatives persuading the sick to choose a path to die earlier rather than later?

Both Victoria Police and the former Minister for Health, the Hon. David Davis, have advised that there are no known prosecutions under the provisions of the Medical Treatment Act 1988 for such inappropriate persuasion.

So, in Victoria we have the experience of two forms of decision-making whose direct and foreseeable consequence is death, with no mandated safeguards and within 'finite healthcare resources' (which Mr Andrews refers to as his reason), not resulting in prosecutions for persuasion to 'choose' death.

If Mr Andrews’ argument is that terminally ill Victorians ought to be denied the right to choose assisted dying because of supposed slippery slopes of persuasion, that argument would exactly and equally apply to the refusal of life-saving medical treatment and to the refusal of food and fluids.

Surely his Government is not suggesting that the existing rights be rescinded: that patients be forced to receive any and all life-saving and life-prolonging treatment in order to avoid a 'persuasion' bogeyman who doesn’t exist?

The Premier's stance is even less defensible in the light of proposed assisted dying legislation which includes a suite of checks and balances that are absent from existing rights.

Some dying individuals, reflecting upon their circumstances and deeply-held values and beliefs, determine that alighting from the train of terminal illness one or two stops before the terminus is a vastly better option than being forced to endure the train ride until the very end. We compound their indignities by saying it’s OK to decide to starve yourself to death (and we might even provide support along the way), but not OK to decide to die peacefully surrounded by loved ones at a predetermined time.

It is commendable that the Legislative Council has resolved to investigate the issue of end-of-life decisions, and whose final report will better inform the Premier and all Parliamentarians. Submissions to the Committee are open until Monday 31st August.


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