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Victoria’s Voluntary Assisted Dying Law isn’t on a Slippery Slope

By David Copolov and Julian Savulescu 

This week the Australian Senate will debate a private members’ bill that will consider whether to overturn the 21-year-old Euthanasia Laws Act that nullified the ability of Australian self-governing territories to pass legislation in relation to euthanasia and assisted suicide.

The deliberation on whether to continue the arbitrary over-riding of the territories’ legislative autonomy in this domain will inevitably also turn a spotlight on the judiciousness of Victoria’s recent voluntary assisted dying legislation that empowers terminally ill people who are residents of our state and who are experiencing unrelievable suffering, to end their lives on their own terms.

Standing firmly and resolutely against such legislation is Professor Margaret Somerville, from the University of Notre Dame, who was interestingly described in an article in the Sydney Morning Herald two days ago as having “spent decades observing euthanasia in Canada”, even though medically assisted dying only became legal in that country in 2016.

One of the concerns she has raised is the “slippery slope” to unethical assistance in dying. Currently, this might well be on people’s minds because of the reports of the deaths of three minors during 2016-2017 as the result of euthanasia in Belgium, out of 4337 deaths during that period. The deaths of the under-18-year-olds occurred as a result of the removal of age limits on access to euthanasia in Belgium that took place as a result of legislation introduced in 2014, 12 years after the introduction of euthanasia for adults.

In contrast to Belgium (which is the only jurisdiction that places no age restrictions on euthanasia or assisted dying), the Victorian Parliament passed the Voluntary Assisted Dying Act in November last year, which limits voluntary assisted dying (VAD) to terminally ill people 18 years and older, who fulfil very strict criteria in relation to experiencing unrelievable suffering and possessing sufficient decision-making capabilities. They must be in the last six months of life, unless they’re suffering from a neurodegenerative disease, in which case they must be in the last 12 months of life.

There are many reasons that both the Victorian Legislative Council’s Inquiry into end of life choices and the Ministerial Advisory Panel on Voluntary Assisted Dying recommended limiting VAD to adults, including the fact that the extensive consultations with the Victorian public led to the firm conclusion that, as stated in the inquiry’s final report: “Victorian values do not support allowing assisted dying to be provided to those who are yet to reach adulthood.”

The ministerial advisory panel also highlighted the need for people to have abstract reasoning abilities and other elements of complex decision-making capabilities that take time to mature. To those reasons, we could add the fact that children and younger teenagers may be predisposed to comply in their decision-making about medical matters with wishes expressed by doctors, parents and other authority figures.

When that decision-making involves irreversible and fatal consequences, it’s entirely appropriate to take a conservative view, with the use of 18 being well-established as an upper boundary of childhood, as in Article 1 in the Convention of the Rights of the Child and as preferential to undertaking individualised testing for decision-making capabilities.

In this way, the minimum age requirement for voluntary assisted dying of 18 is the same proxy for determining capability as the minimum legal age requirements for driving, voting and purchasing alcohol.

It’s extremely unlikely that the minimum age requirement will be changed in relation to VAD in the foreseeable future.

First, the Victorian act is very closely aligned to the principles and practice associated with the Dying With Dignity Law that was introduced in Oregon 20 years ago – and very different to the euthanasia laws in Belgium and the Netherlands. Oregon’s medical aid in dying law has been rock-solid and hasn’t been liberalised. This is one of several pieces of evidence that led the RMIT ABC Fact Check to refute the claim by former prime minister Paul Keating that “the experience of overseas jurisdictions suggests the pressures for further liberalisation are irresistible”, after closely examining physician-assisted suicide or euthanasia in 10 jurisdictions.

There are several other reasons to believe that the road ahead will not be a slippery slope for the Voluntary Assisted Dying Act.

The foundations upon which the legislation is based are extremely strong, solidly grounded on understanding public sentiment and accessing wide-ranging expertise.

The committee responsible for the parliamentary inquiry into end of life choices deliberated over the 10 months, undertook 17 days of public hearings, and was informed by the opinions of 154 witnesses and the viewpoints expressed in 1037 submissions.

The Ministerial Advisory Panel on Voluntary Assisted Dying deliberated over nine months, held 14 consultation forums, including five in regional Victoria, received 176 submissions and recommended 68 safeguards – many being unique to Victoria.

Parliamentarians in the Legislative Assembly (Lower House) and the Legislative Council (Upper House) debated the legislation for a total of more than 100 hours and accepted all the recommendations of the Ministerial Advisory Panel with nine amendments that provided an even higher level of safeguard. We’re now nine months into a 20-month pre-implementation period since the passing of the legislation, during which an Implementation Taskforce has been established to ensure that VAD will be introduced – in June 2019 – in a safe and compassionate way, that community information is provided, that professional training programs and clinical, substance and dosage guidelines are established, and that protocols are developed.

Given these detailed and unprecedented endeavours over three years, the likelihood of liberalising the legislation by means of a similar and repeated process would be next to zero.

When comparing countries with practices at the end of life (such as Belgium and Australia), it’s important to recognise that different countries have different values. In Germany, there’s no speed limit on nearly 50 per cent of all autobahns. In the US, there are liberal gun ownership laws. Australia has speed limits – lower than most European countries on our major roads – and strict gun ownership laws. In these instances, Australia has resolutely prioritised safety over freedom or shortened travel times. These values are enforced by law.

Over many years, Australian states and territories have formulated their own laws on assisted reproduction – for example, banning reproductive cloning and commercial surrogacy. There has been no creep in these laws, and they’ve been effectively enforced. Other countries may have more liberal laws on cloning and commercial surrogacy, but Australian jurisdictions have continued to enforce their own values.

The foundations upon which the legislation is based are extremely strong, solidly grounded on understanding public sentiment and accessing wide-ranging expertise.

With these international comparisons in mind, the fact that euthanasia and assisted dying laws in Belgium, the Netherlands and Switzerland are considerably more liberal than those in Victoria should cause no concern in the minds of those who will be determining the fate of assisted dying legislation elsewhere in Australia.

Opinion polls show a considerable majority of Australians want assistance in dying to be legal for people suffering from terminal illnesses. Victoria’s Voluntary Assisted Dying Act is the safest in the world. It will be enforced by the rule of law. Any liberalisation of that law would have to go through a protracted parliamentary process. There’s no reason to believe that our politicians will wish to compromise their concern for the protection and safety of our state’s citizens by undertaking such a liberalisation.

There’s no slippery slope in sight for VAD legislation in Victoria. Scaremongering claims about it being a likely prospect could potentially close the door to much-needed access to VAD in other states and territories. Victoria’s parliamentary representatives have, after intense scrutiny and consideration of a vast array of information and opinion, brought to fruition a new law of profound ethical significance. We should be proud of them and of the democratic processes that led to the new legislation. For now and for the decades to follow it should be “steady as she goes”.

This article was first published on Monash Lens. Read the original article

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7 Comment on this post

  1. Firstly this’s no tome, but my apologies for the length of response.

    Ahh, How amusing how the expectation of perfection in one worldview may be perceived from many others. It seems possible for fatigue to be used in many ways, and yes a wide variety of cultural values are applied to both death and killing.
    A point has been made; in those cultures which support assisted dying that killing for compassionate reasons has become acceptable, just as wars and other violence at times become acceptable. That is purely not compassion.

    In an all to human way a great many people use their own immediate understanding of compassion, hence, partially, the many controls over the termination processes, but those controls do and will not affect the widely understood and communicated acceptability of the action.

    Two brief analogies constructed for another purpose from actual incidents but partially re-written will assist in broadly illustrating elements of the complexity in the differences of comprehension resulting from this particular conversation:-
    A British couple in a narrow street near a restaurant in Europe are approached by a group of dogs who are barking in a friendly, welcoming and excited way. The female (a well educated and highly literate person) immediately exhibited extreme fear and screamed for protection from a dog pack, her companion ran towards the dogs and began viciously kicking at them , shouting at them to go away, flailing his arms and swinging punches towards them. After jumping back several times looking puzzled, the dogs, even after one kick landed, to their credit retained their friendliness and moved to somebody else.
    There was a clear issue in the background of the female which had left her terrified of such situations, an outcome being a complete block of awareness of any communication medium from another species.
    A comment made later by one of those involved in the above episode, following a discussion, about the effects of the dangerous dogs advertising campaign during the lead up to the debates on the Dangerous Dogs Act and its implementation phase upon my children is also enlightening – “The English language is so good because you can insult somebody without them being aware of it.”

    Those two examples simply illustrate the boundaries within which all beings limit and identify themselves and others, just as they reflect the constraints or membership criteria of protective social structures groups build – for themselves.

    For those not aware of the campaigns mentioned; they consisted of a series of advertising and news articles including many scenes of dogs ferociously barking, close up shots of them snarling and baring their teeth, the aftermath of dog attacks upon people and children, fighting dogs and other violence based messages regarding dogs over a protracted period.
    An interesting factor is that that period had been precluded by decades of constant complaints voiced by the public to the police and other public authorities regarding dog fouling in public places being left there by insensitive dog owners not cleaning it up. If those two issues were heterogeneously integrated in a motley mix, the fan had been turned in the other direction, to the detriment of any well trained dogs and their owners caught in the middle.

    Plainly the point made is that any social damage is unlikely to be limited to those choosing to end their own life in times of despair or in sufficiently poorly and despairing condition to have the question arise, and those close to them. Wider society in these conditions does and will suffer.

    Also the learning pressure upon medical institutions is altered from a positive one where answers to solve or alleviate the suffering were more often openly being sought which would have wider and longer lasting implications in the future; to one where immediately ending that suffering and alleviating the differing pressures becomes an acceptable area to improve upon (implementation phase and afterwards, unless all improvements in that area really can be rather cruelly denied…), whereas in the past that simpler route, which arguably respected individual freedom at the cost of fundamental values may only have been taken under risk of censure. Technological advances which starkly reveal white collar crime and increased that risk aside, we agree the slip has been made, so the falling is underway and repeating ‘so far so good’ merely indicates the place has not yet been reached. As a limey commenting upon the provided AU example respect for life is eroded with denials of that contained within almost every justification seen by myself.

  2. The fundamental philosophical assumption underlying this discussion is that human persons are mere objects owned by the state, even though they never consented to be born into such a condition.

    I fully reject that assumption. Any restriction whatsoever on an articulated person’s self-chosen death is therefore to be rejected as well.

    1. Socratic horrors abound. But such a statement could appear on the surface to support suicide bombing!
      Ignoring nation states and other political constructs; Clearly where other life exists freedoms may become nuanced as associations with other worldviews creates greater exposure. In a similar way love, empathy, humour and many other emotions may counter any purely logical Nietzschean influence.

  3. Re the tedious and oft repeated ‘slippery slope’ argument.

    I certainly never noticed these ‘greedy family members’ – that we keep hearing about from the anti brigade – queuing up to push GranMa in her wheelchair to the door of Dignitas when my husband, Andrew Tyler, chose to have a dignified, civilised and pain free death at the Dignitas house.

    In fact far from a ‘slippery slope’, this civilised country Switzerland has seen far fewer ugly and deeply distressing suicides because their laws allow people to die in a dignified and stress free manner when and if they choose to do so.

    I also suspect, due to an assisted death being above board and accepted in Switzerland, there will be far far fewer incidents of the physician making the rather underhand and I believe unacceptable decision to let someone die a rather horrible and slow death from dehydration and starvation or overdose of morphine.

    As Henry Marsh the neurosurgeon said in his Times article of the 1/7//2018

    ‘The recent events in Gosport* surely show this all too clearly. The risk of abuse is much greater when death is hidden with half-truths and euphemisms than if it is openly discussed with patients and families, as would be possible if assisted dying was legalised.’

    This is EXACTLY why we MUST have an open and above board system that allows US to choose when the time is right. No more of this underhand Dr making the decision in favour or otherwise. No more AMBIGUITY but a proper and legal system that HAS to be adhered to, like a Will.

    *Gosport War Memorial Hospital where over 450 people died unexpectedly.

    Andrew died on the 28th of April last year. I held his hand and it was a ‘good’ death. It would have been a ‘great’ death if Andrew could have died at home in the UK with those he loved around him. But we had to flee to a foreign land to do something that should be the right of everyone who so chooses.

  4. Situations like those of Sara’s husband are heart rendering and formative of the genuine views espoused. Celebrating the persons life and happy times, rather than focusing upon a sadder part of a life, from my own experiences, creates more sustainably happy memories and a less conflicted worldview, as that personal focus seems to eventually change over time anyway, which itself can create feelings of guilt.

    Torture Slavery’s espoused view may often be heard in academic areas, but it contains a denial of freedom, life and death because it so dogmatically limits itself.

    Like Sara’s my own views have also been borne out of the death of close ones, two passing away painlessly in hospital because they did not wish to create difficulties for relatives.(Which creates a shocked grieving state, raising questions of a stunned Why; to; all the plans being made to assist were not considered enough to counter the situation in their mind, and the feelings of personal failure that created.) And another three, one with an inoperable brain tumour who spent 5 distressing years dying, eventually passing away with fluid in their lungs having refused medical intervention. Another who is 18 years down the road with alzheimer’s where the distress of seeing their memories fade away before you is ameliorated by those occasions, one surprisingly only a few days ago, where in a happily excited way (childlike) they recognized us and managed to communicate regarding a childhood holiday a postcard had regenerated a memory of – all memories and speech having long since been said to have gone. And yet another, who is at the age where age is a very real problem and most frequently adopts a living day by day approach, and occasionally wishes it were all over. This stage of life is distressing, but hopefully the beginnings of living through the early parts of that time strengthen you sufficiently to make the best of life, as a respect for the courage and decisions of others grows. Out of all of that each of the interactions during visits or other communications appears crucial as personal feelings of guilt, for being healthy, or for possibly not doing the right thing to help or lighten their problems or mindset frequently arise.

    And yet my own mind has turned away from any simple solution partially resulting from seeing each of those family members struggle and couragously overcome, in a way, suitable to their own worldviews, what has been thrown at them, and partially from a wide free range and often deep reading in different subject areas which has enriched my own life sufficiently to appreciate more of the diversity of people, their development in life and their views. Resulting in a long and carefully considered viewpoint where life as life is the most important and necessary thing for the thought and happiness of all people, and that the regulative and legal system is not the correct vehicle to be used for death.

    These difficulties do not go away by regulating death. For instance a discussion of this nature with surviving family members spoken of above, would be interpreted as a wish for them to die, and create immense hurt or harm no matter how sensitively it was raised (As it did when it was raised in the early days by the family solicitor, doing his job, with the alzheimer’s relative). The individuals decisions in this matter cannot become a regulated area, for any answer whatever it may be will also cause harm. People themselves require the space and freedom to make their own decisions about this rather than follow a route enabled by law or any particular religious rule. And those decisions should be respected, but not necessarily religiously included in law.

    As you can now see pro-life may be a tag given to my own viewpoint, especially when aspects other than human life are included, but it is not intended in the way many people may interpret that statement.

    Anyway – it would be appropriate to bring this to a close as the blog administrator looks to have twice now dropped a hint.

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