Queensland's Voluntary Assisted Dying Act (2021)
Impact on freedom of conscience for health care practitioners and institutions
Sean Murphy*
Full Text
EXECUTIVE SUMMARY
Queensland’s Voluntary Assisted Dying Act (2021) was drafted by the Queensland Law Reform Commission ("the Commission") It will legalize euthanasia and assisted suicide (termed "voluntary assisted dying") in the Australian state when it comes into force in January, 2023. This review considers the impact the Act may have on freedom of conscience. Part I outlines the main features of the law, providing a context for discussion of provisions relevant to freedom of conscience in Part II (Practitioner Freedom of Conscience) and Part III (Institutional & Collective Freedom of Conscience).
Overview
Eligibility
People seeking euthanasia/assisted suicide (EAS) must be adults with an advanced, progressive disease or medical condition expected to cause death within 12 months, and who are enduring what they consider to be intolerable physical or mental suffering caused by the condition or treatment. They must be acting voluntarily and capable of making and communicating medical decisions. They can be mentally ill or disabled, but EAS cannot be provided for mental illness or disability alone. Decision-making capacity is presumed in the absence of evidence to the contrary, and it is acknowledged that it can fluctuate or be temporarily lost and regained. The Act imposes residency requirements that can be waived for compassionate reasons.
Practitioners
Only EAS-trained medical practitioners with least five years general practice experience can act as EAS coordinators and consultants. Other EAS-trained medical practitioners, nurses and nurse practitioners may administer euthanasia.
Discussion with patients
Medical and nurse practitioners (not nurses or other health or personal care service providers) may suggest or initiate discussion about euthanasia or assisted suicide even if a patient has not expressed an interest — but are not required to do so. If they initiate the discussion, the Act requires them to advise the patient about available alternatives and their likely outcomes. The Act does not require them to discuss alternatives if patients initiate the discussion. This introduces an undesirable difference between statutory and ethical/professional obligations. Others providing health or personal care services and other registered health practitioners may provide EAS information to patient who asks about it, but are not required to discuss other treatment options.
The EAS process
The EAS process begins with a “clear and unambiguous” first request to a medical practitioner made personally by a patient (not a third party). After discussing alternative options, the medical practitioner must accept or reject the request and promptly notify the patient. A practitioner who rejects a request must advise the patient that others may be able to assist and provide information about them or the Voluntary Assisted Dying Care Navigator Service. An EAS-qualified medical practitioner who accepts a request becomes the coordinating practitioner, responsible for supervising the EAS request, assessment and administration process.
A medical practitioner who accepts request must assess the patient's eligibility. Patients deemed eligible must be referred to a consulting practitioner to confirm the assessment, and can be referred repeatedly to consulting practitioners until eligibility is confirmed. Referrals to specialists are optional, and their opinions are not binding.
A patient deemed eligible by two medical practitioners and who wishes to proceed must make a second EAS request, written and witnessed by two people, then a final request, and then, with the coordinating practitioner's assistance, an administration decision: to opt for assisted suicide or euthanasia. Assisted suicide is the statutory norm, but is less reliable than euthanasia. Experience elsewhere demonstrates that very few choose assisted suicide when both euthanasia and assisted suicide are available.
The second request, final request, final review (verifying that forms have been correctly completed) and administration decision could all occur during the same consultation, although a final request cannot normally be made within 9 days of a first request. Nothing in the Act requires a medical practitioner to have person-to-person contact with a patient except when administering euthanasia, but on-line consultations are currently unavailable because of Australia's Criminal Code.
Providing EAS
A practitioner providing euthanasia must have an adult witness present and ensure that the patient has decision-making capacity and is acting voluntarily. A patient can self-administration lethal medication at any time and place; neither a witness or confirmation of decision-making capacity or voluntariness is required. It is thus possible for death by self-administration to occur in public or inconvenient places or remain undiscovered for some time. If the patient is incapacitated but does not die after being administered or ingesting the lethal substance, it does not appear that an additional lethal dose can be given to kill the patient unless the patient regains capacity and consents.
Death certificates
The Act requires the cause of death be falsified by reporting it as the disease or medical condition for with EAS was approved. Falsification of the cause of death on death certificates is contrary to international standards for identifying causes of death that are acknowledged by the Australian government and applied by medical practitioners, pathologists and Queensland coroners. Falsification of death certificates contributed to the murder of over 200 patients by a British medical practitioner and led to unfavourable comments by the chairman of the subsequent inquiry into the murders.
Voluntary Assisted Dying Care Navigator Service
The Queensland government will establish the Voluntary Assisted Dying Care Navigator Service to assist those seeking "support, assistance and information" about EAS services. VADCNS will be a service dedicated to enabling euthanasia/assisted suicide, so it will not be equivalent to a service providing information and assistance concerning a variety of government and health services.
Institutions ("entities")
Hospitals, hospices, residential care facilities, etc. are captured in the Act by the term "entity". The Act does not require entities to provide or refuse to provide EAS information, request or assessment services or euthanasia or assisted suicide, nor does it prohibit them from refusing to do so. Entities that do not provide the services are required to publicize the fact so that people receiving or likely to seek services at their facilities are made aware of it.
The Act imposes obligations on entities if a person in their care requests EAS information or services that they do not provide. They must allow all persons in their care access to EAS information by allowing registered health practitioners or a member or employee of VADCNS to allow EAS practitioners to consult patients in their facilities. Similarly, they must allow all persons in their care to make first, second and final EAS requests in their facilities, or, if EAS practitioners are unable to attend, must “take reasonable steps to facilitate" patient transfers to enable requests to be made and accepted elsewhere.
Entities must allow all EAS services, including euthanasia/assisted suicide, to be provided in their facilities to permanent residents (given an extended meaning by the Act), or, if EAS practitioners are unable to attend, “take reasonable steps to facilitate" patient transfers to enable the services to be provided elsewhere. In the case of other institutional occupants (such as hospital and hospice patients), entities can refuse to allow EAS services in their facilities, but only if they “take reasonable steps to facilitate" patient transfers to enable the services to be provided elsewhere. However, they can be forced to allow EAS services in their facilities if the responsible EAS practitioner considers transfer "unreasonable in the circumstances."
Oversight
The operation of the Act is to be overseen by an appointed Voluntary Assisted Dying Review Board, which is required to record, analyze and report at least annually upon information it acquires. The Queensland Civil and Administrative Tribunal (QCAT) is empowered to review and overturn decisions about residency, capacity, and voluntariness (not diagnosis or prognosis). Coordinating practitioners may refuse to continue if QCAT overturns a decision about capacity or voluntariness, but must then transfer the patient to the consulting practitioner or someone eligible to act as coordinating practitioner.
Illusion of neutrality
The Act identifies eight principles underpinning the statute and seems to give equal weight to all of them. This enables an adjudicator to impose subjective and contested views about the meaning and importance of each principle during an ostensibly neutral “rights balancing” analysis. No one should be under the illusion that the principles identified in the Act can be fairly and objectively applied in a “rights balancing” exercise when there is fundamental disagreement about what they mean.
The provision of euthanasia or assisted suicide under the Act is not considered palliative care, which is clearly distinguished as an alternative option. The Commission recognized that people hold different views about the moral acceptability of euthanasia and assisted suicide and whether or not the procedures are forms of health care or medical practice. While the Commission asserted that different views should be respected, the Act it drafted assumes that euthanasia and assisted suicide are morally acceptable forms of healthcare and must be characterized as death by natural causes rather than homicide or suicide. This does not demonstrate respect for different views. On the contrary, it effectively imposes a chokehold on public discourse, suppressing the words needed those opposed to the Act to express their reasoning.
Practitioner Freedom of Conscience
Conflicts of conscience
The health care professions are not divided into sharply defined groups of objecting and non-objecting practitioners. The position of many practitioners depends upon the nature of the illness or condition, opinions about decision-making capacity, voluntariness, or other issues they consider relevant.
The broader the grounds for euthanasia and assisted suicide, the more likely it is that conflicts of conscience will arise. By restricting eligibility to competent adults with terminal illnesses or conditions, and by explicitly ruling out EAS for mental illness and disability, the Act reduces the number of practitioners likely to experience conflicts of conscience when it comes into force.
Capacity assessments
The ability of practitioners to perform capacity assessments for euthanasia and assisted suicide is disputed, and assessment of limited, fluctuating and episodic capacity can be particularly troublesome. Patients could be deemed capable of choosing euthanasia/assisted suicide even if they are considered incapable of challenging medical decisions about alternative treatments and palliative care. The burden of illness may make it easier to understand the EAS process than alternative treatment options, and to choose what is more easily understood rather than what might offer significant symptom relief. Even practitioners willing to facilitate euthanasia for clear-headed patients may not be confident that they can safely act upon a request made when the clouds of major depressive disorder part for a time, or if the patient recovers what another colleague considers "enough" capacity to make a valid request.
Finally, risk assessments by EAS supporters, uncommitted practitioners and EAS opponents may reflect significantly different views about life-or-death decisions based on different underlying philosophical or ethical views. A priori biases in favour of an outcome cannot be avoided in EAS assessments.
Overturning practitioner decisions
The Queensland Civil and Administrative Tribunal (QCAT) can overturn a coordinating practitioner's conclusion that a patient is ineligible for EAS because of involuntariness or lack of capacity. This can cause a problem for practitioners who are certain of their conclusion because, though they can withdraw, the Act requires them to transfer the patient to a colleague willing to continue the EAS process. They may well consider this unacceptable, and it is completely unnecessary. The Act should be amended to require QCAT or a person or agency designated by QCAT to find a new coordinating practitioner should the coordinating practitioner withdraw in these circumstances.
Protection for objecting practitioners
Medical and nurse practitioners may initiate discussion about EAS but are not required to do so. By explicitly making discussion optional, the Act supports both practitioners who want to initiate discussion about EAS and those who think it best to let patients take the lead, responding to their enquiries or apparent interests. Further, all registered health practitioners who conscientiously object to EAS may refuse to provide information about or participate in any part of the EAS process, and refuse to be present when EAS is provided. These provisions are satisfactory, and the requirement that they inform patients that other practitioners may be able to assist them is unobjectionable. They allow objecting practitioners to step aside, advising patients that they are free to seek the services from willing colleagues.
The further requirement that they provide information about those who may be willing to provide EAS does not specify that objectors must direct patients to EAS practitioners or provide contact information for them. It is sufficient if the objector provides information about a “service . . . likely to be able to assist,” such as Queensland’s 13Health. This allows objecting practitioners to comply with the Act while avoiding any positive action causally connected to killing their patients, and it leaves patients free to pursue euthanasia/assisted suicide.
Protection for objecting speech pathologists
Objecting speech pathologists are accorded the same protection as registered health care practitioners, with the analogous requirement to notify employers and patients of the availability of other speech pathology services. They must notify employers who provide EAS services in advance, a reasonable requirement that helps to avoid needless conflicts. However, the Act also suggests that objectors are obliged to ensure that colleagues are not burdened and access to euthanasia and assisted suicide is not compromised. The Act does not suggest that health care practitioners have such duties because they can be found in existing professional guidance from the Australian Medical Association (AMA). Whether contained in the Act or in AMA guidance, this is unacceptable. The duty to ensure EAS access, accommodate objecting employees and balance workloads among staff should lie on the employer, not objecting employees. They may
reasonably be expected to participate in discussion about and cooperate in accommodation, but the onus to fairly distribute employment tasks should be on the employer.
Falsification of death certificates
Regardless of their views about euthanasia and assisted suicide, some medical practitioners are likely to object to falsifying the cause of death in death certificates. They may be uncomfortable about lying or dissembling to families about how their loved ones died or concerned that falsifying records and lying is likely to undermine the trust essential to the practice of medicine. Others may have principled objections to falsifying documents, lying, dissembling and other forms of deception under any circumstances. Finally, some may consider falsification ill-advised because it is likely to compromise important epidemiological data. If the state insists that death certificates must be falsified, the Act should be amended to make a medical member of the Voluntary Assisted Dying Review Board responsible for completing EAS death certificates (assuming that a Board member’s objection to doing so would also be accommodated).
Institutional & Collective Freedom of Conscience
The Commission explained that “entity” is intended to mean “a non-natural person, typically a corporation or body given legal status,” and the Act describes an “entity” only as “other than an individual” It is reasonable to extend this to include unincorporated businesses and collectives of various kinds. Regardless of structure, “institution” in the sense relevant here is an entity that always manifests a collective enterprise by individuals.
The Commission rejected the notion of an institutional right to freedom of conscience, recognizing only an entity/collective's interests in maintaining institutional identity and integrity by exercising property rights - which can be overridden by statute. Thus, the Act recognizes and addresses conscientious objection by individuals but not by entities/collectives. It implicitly acknowledges that entities/collectives may or may not provide EAS, and it addresses the obligations of entities/collectives that do not, but at no point does it imply that constitutional guarantees of freedom of conscience are relevant to decision-making by entities/collectives about involvement in killing people. It places refusal to kill people for reasons of conscience on the same level as refusals based on pragmatic considerations like lack of trained personnel or management of institutional branding.
Participation, cooperation, collaboration
The Act does not require entities/collectives to provide euthanasia or assisted or even to provide information about the procedures, so it does not threaten institutional freedom of conscience in relation to direct participation in EAS services. Instead, the Act is designed to enable the state to compel unwilling entities/collectives to cooperate and perhaps collaborate in killing people in their care or helping them kill themselves, and to disadvantage any that resist by appeals to freedom of conscience.
However, patients and practitioners cannot proceed with EAS in an objecting institution unless they notify institutional authorities at each stage in the EAS process. This is fortunate, because providing EAS services in a private apartment in a residential facility would be radically different from providing them behind a curtain in a room shared with others, and the Act does not distinguish between the two situations. Nothing in the Act prevents objecting entities/collectives from imposing conditions on EAS-related activities that they are required to permit once they have been notified.
Cooperation
Two kinds of cooperation required by the Act pertain to all persons being cared for in a facility — enabling access to information about EAS and facilitating requests for EAS. The extent of cooperation demanded in relation to EAS assessments and actual provision of euthanasia/assisted suicide depends upon the legal occupancy status of the person in care.
EAS information
With respect to providing EAS information, objecting entities/collectives could direct all patient enquiries about EAS to staff members trained to provide patients with information necessary to enable informed decision-making without compromising institutional moral integrity. Hence, the cooperation required in providing information about EAS does not appear to undermine institutional freedom of conscience. However, the provisions concerning requests and other elements in the EAS process are problematic.
The EAS process
The Act was drafted by a Commission that considered a patient's first request only in relation to the EAS delivery process, not within the context of caring for patients. Nonetheless, the wording of the Act leaves room for objecting entities/collectives to direct staff to fully and compassionately explore and document first requests, refuse those found to be clear and unambiguous, and provide information enabling patients to seek EAS elsewhere. They can thus largely comply with the Act without compromising institutional moral integrity.
However, the Act also requires objecting entities/collectives to allow EAS practitioners to accept first, second and final requests in their facilities from anyone, and to allow them to provide all EAS assessments, consultations and euthanasia/assisted suicide in their facilities for all permanent residents (including people living in aged residential care facilities). Contingent cooperation of this kind is problematic, especially in relation to patients who do not have private personal accommodation. If EAS practitioners cannot attend, objecting entities/collectives must "take reasonable steps to facilitate the transfer" EAS candidates to a location where they can receive EAS services. This suggests that active collaboration might be expected, and it goes well beyond merely granting the equivalent of a residential tenancy right to service delivery at home. Landlords are not forced to help tenants travel to see EAS practitioners who can't make home visits.
Objecting entities/collectives may refuse to allow the EAS process for institutional occupants (like hospital and hospice patients) only if, once more, they "take reasonable steps to facilitate" transfers to enable the procedures elsewhere. If that means initiating rather than simply cooperating in a transfer requested by others, the purported compromise amounts to a choice between two objectionable alternatives. Further, the Act demands that objecting entities/collectives allow EAS procedures in their facilities (including euthanasia and assisted suicide) for hospital and hospice patients and other institutional occupants if transfer “would not be reasonable in the circumstances.”
Credentials (privileges)
The Act's demands that qualified practitioners be allowed to provide EAS services to patients in facilities poses a dilemma for objecting entities/collectives in granting credentials. Granting credentials for EAS would explicitly affirm the acceptability of euthanasia/assisted suicide and authorize the procedures, thus contradicting their moral commitments. However, granting credentials may be necessary to avoid legal liability, and it may be the only way for objecting entities/collectives to impose enforceable conditions and restrictions on provision of the service in order to protect other patients, staff and mitigate harm to institutional moral integrity.
Prejudice
The Act reflects the prejudice of its author, a Commission that found it "hard to see" why an entity/collective could reasonably object to allowing the EAS process to begin in its premises. This was not only because, as one would expect, the Commission believed it is morally acceptable to kill patients or help them kill themselves in accordance with the rules they proposed. The Commission was also unable to imagine or unwilling to concede that others could reasonably and collectively hold and live in accordance with the contrary view, and should be entitled to do so in a democratic state. This demonstrates a lack of moral imagination or unreflective and entrenched authoritarianism inconsistent with the best traditions of liberal democracy.
TABLE OF CONTENTS