Queensland's Voluntary Assisted Dying Act (2021)

Impact on freedom of conscience for health care practitioners and institutions

Sean Murphy*

EXECUTIVE SUMMARY | TOC | PART I | PART II | PART III

Full Text

Preface

Queensland’s Voluntary Assisted Dying Act (2021)1 was drafted by the Queensland Law Reform Commission ("the Commission").2 Running to 114 pages, 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 health care workers and institutions opposed to euthanasia or assisted suicide (EAS) for reasons 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).

PART I: OVERVIEW

Introduction

I.1 Part I of this paper sets out EAS eligibility criteria, explains how requests for EAS services are to be processed and draws attention to some aspects of the law. The overview assumes the willing participation of the practitioners involved and omits details not essential to a general understanding of how the Act is expected to function.

Not palliative care

I.2 Queensland’s Criminal Code defines palliative care as “an act or. . . omission, directed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering” [S. §282A(5)] that does not include "an act . . . or omission made with intent to kill another person” or “aiding another person to kill himself or herself.” [§282A(3)]. Hence, the provision of euthanasia or assisted suicide under the Act is not palliative care, which, when mentioned, is clearly distinguished as an alternative option [cf. §7(1) and (2)].

Eligibility

I.3 An eligible patient must be at least 18 years old, have an advanced, progressive and terminal “disease, illness or medical condition . . . that is expected to cause death within 12 months” and causes suffering the patient considers “intolerable” [§10(1)]. “Suffering” includes both physical and mental suffering caused by the terminal condition or its treatment [§10(2)]. The patient must act “voluntarily and without coercion” and must be capable of medical decision-making [§10(1)]. Finally, patients must have lived in Queensland for at least one year, and those who are not Australian citizens or permanent residents must have lived in Australia for at least three years, though citizenship and residency requirements can be waived for compassionate reasons [§12].

I.4 Persons who meet these requirements are eligible for euthanasia and assisted suicide if they are disabled or mentally ill [§13 (1)], but EAS cannot be provided for disability or mental illness alone [§13(2)].

I.5 For purposes of EAS, a person must understand “the nature and effect of decisions about access” to the services [§11(1)a] and be able to make and communicate free and voluntary decisions [§11(1)b, c] (with “adequate and appropriate support” if need be [§11(3)d]).

Capacity

I.6 Decision-making capacity is presumed in the absence of “evidence to the contrary” [§11(2)]. Illness, disability and personal characteristics like age, appearance, language skills are not “evidence to the contrary,” nor is the fact that others do not agree with a decision [§11(3)c]. The Act explicitly acknowledges that a person may be capable of making some decisions, but not others [§11(3)a], and that “capacity can change or fluctuate, and a person may temporarily lose capacity and later regain it” [§11(3)b].

Practitioner participants

I.7 The Act authorizes direct participation in EAS by medical practitioners, nurse practitioners and nurses. Participants are functionally differentiated as coordinating practitioners, consulting practitioners and administering practitioners. A fourth group — identified here (but not in the Act) as “determiners” — includes registered health practitioners and other individuals who can be asked to provide expert opinions about diagnosis, prognosis, capacity and voluntariness.

I.8 Medical practitioners are the principal EAS agents; only they can act as coordinators and consultants [§82]. They must have at least five years general practice experience, fulfil EAS training requirements [§20(1),§30(1)], and not be a family member of the patient nor in a position to benefit from the patient's death [§16(1), §26(2), §82].

I.9 While only EAS-trained medical practitioners may act as coordinating and consulting practitioners, euthanasia can be provided by EAS-trained nurses, nurse practitioners and medical practitioners [§83]. Once the Act is in force it will be interesting to see how much this statutory division of responsibilities affects practice. It is possible that nurse practitioners and nurses will become the principal euthanasia providers, while most physicians might prefer to act as process decision-makers, supervisors and facilitators rather than personally providing euthanasia.

Discussion with patients

I.10 Only medical and nurse practitioners (not nurses or other health or personal care service providers) may suggest or initiate discussion about euthanasia or assisted suicide [§7(1)] — but only if they also advise the patient about available palliative care and treatment options and the likely outcomes of such alternatives. However, registered health practitioners and anyone providing “a health service or personal care service” may provide information about EAS services to a patient who asks for it [§7(3)]. Three elements in §7 are noteworthy.

I.11 First: medical and nurse practitioners may suggest euthanasia and assisted suicide or initiate discussion about EAS - even if a patient has not expressed an interest - but are not required to do so.

I.12 Second: as the act is written, palliative care and other treatments need not be suggested as alternatives to EAS if they are not available for any reason (including the failure of health authorities to make the options accessible).

I.13 Third: §7(3) was included to protect “health or personal care service” providers and nurses who respond to patient requests about EAS but lack the expertise to discuss other treatment options.3 However, the subsection also applies to medical and nurse practitioners and nurses, thus relieving them of statutory responsibility to discuss alternatives to EAS if a patient asks about it. Granted: the law does not relieve them of the ethical obligation to meet the requirements of informed consent, but the apparent difference introduced here between statutory and ethical obligations is undesirable.

Request and assessment process

I.14 The process involves three requests by a patient: the first by any means available to the patient [§14], the second in writing and witnessed [§37], and a final request by any means available to the patient [§42]. A second request cannot be made unless the patient is first found to be eligible [§37(1)] The final request could be made immediately after signing the second request, but cannot be made within 9 days of the first request unless, in the opinion of both the coordinating and consulting practitioner, the patient is likely to die or lose decision-making capacity within that period [§43].

I.15 Nothing in the Act requires a medical practitioner to have person-to-person contact with a patient except when administering a lethal injection. However, the request and assessment process cannot proceed via internet videoconferencing because Australia's Criminal Code prohibits the use of telecommunications and similar technology to counsel or recommend suicide. The government of Queensland and others want the Criminal Code amended to allow videoconferencing for EAS services, but the national government seems resistant to the change.4,5

First request

I.16 A patient must personally make a “clear and unambiguous” first request for EAS to a medical practitioner by any means; a request cannot be made by a third party on behalf of a patient [§14]. However, someone may help the patient communicate the request [§11(3)d]. A practitioner may spend some time exploring a patient's request before concluding that it is "clear and unambiguous," since that must surely imply include an understanding of alternatives. Only if a practitioner reaches that conclusion do the other provisions concerning a first request become operative.

I.17 Upon concluding that a first request is clear and unambiguous, medical practitioners must accept or reject it and notify the patient accordingly. They must refuse the request if they are not qualified EAS practitioners [I.8]. If the practitioner refuses the request for reasons of conscience, the patient must be notified immediately [§16(6)a]: otherwise, within two business days [§16(6)b]. An EAS qualified medical practitioner who accepts the request becomes the coordinating practitioner, responsible for supervising the EAS request, assessment and administration process [§18]. Those who refuse must advise patients that other practitioners or service providers may be able to assist them, and provide information about them or about the Voluntary Assisted Dying Care Navigator Service [I.40].

Coordinator assessment and consultant assessment (First & second assessments)

I.18 The coordinating practitioner must assess the patient's eligibility for EAS. If the patient is found to be eligible, the coordinating practitioner must refer the patient for assessment by a consulting practitioner [§25]. A patient's eligibility must be confirmed by two medical practitioners (coordinating and consulting practitioners) [§19-35], with the assistance of specialist determiners if need be [§32].

I.19 If the consultant practitioner does not agree that the patient is eligible, the coordinating practitioner may (not must) refer the patient to another consultant practitioner [§36]. The Act does not require a coordinating practitioner to discontinue referrals and find the patient ineligible because coordinating and consulting practitioners disagree. Nor does the Act require a coordinating practitioner to adopt the consulting practitioner’s opinion of ineligibility and reverse his own assessment. Unless the issue is resolved by a decision of the Queensland Civil and Administrative Tribunal (see I.51-I.53), coordinating practitioners can continue to make referrals to consulting practitioners until eligibility is confirmed by a second opinion, or the patient dies.6 The request and assessment process ends if the coordinating practitioner concludes that the patient is not eligible [§23], unless the decision is overturned by the Queensland Civil and Administrative Tribunal (QCAT) (see I.51-I.53).

Determiners' specialist assessments (optional)

I.20 Coordinating and consulting practitioners may refer patients to specialists to confirm diagnosis, capacity and voluntariness, and may (but need not) adopt their opinions [§21(4), §32(4)].

Second request

I.21 Once eligibility is confirmed by coordinating and consulting practitioners, a patient must make a second request for EAS, in writing, though it may be signed on his behalf by someone who is at least 18 years old, not a witness to the signature, and not the coordinating or consulting practitioner [§37]. The second request must be witnessed and certified by two persons who are at least 18 years old, not in a position to benefit from the patient’s death, not an owner or manager of a health facility where the patient is being treated or resides, and not the coordinating or consulting practitioner [§38, §39]. The coordinating practitioner must record the second request [§40] and, within two business days, give notice of the request to the Voluntary Assisted Dying Review Board [§41].

Final request

I.22 After having made a second request, a patient must personally make a “clear and unambiguous” final request for EAS to the coordinating practitioner by any means; a request cannot be made by a third party on behalf of a patient [§42]. However, someone may help the patient communicate the request [§11(3)d]. If the patient makes a final request , the coordinating practitioner must record it [§44], notify the Voluntary Assisted Dying Review Board within two business days [§45] and conduct a final review of the case. He must sign the final review form and provide copies to the patient as soon as practicable and the Voluntary Assisted Dying Review Board within two business days [§46].

I.23 A final request could be made immediately after a second request, during the same consultation, although a final request cannot normally be made within nine days of a first request. The final review (which consists only of verifying that forms have been correctly completed) could be done at the same time.

Administration decision

I.24 Euthanasia (practitioner administration of a lethal substance) is not permitted by the Act unless the coordinating practitioner considers assisted suicide inappropriate because of a patient’s inability to self-administer a lethal substance, a patient’s concerns about doing so, or because the method of self-administration is otherwise unsuitable for the patient. [§50(2)] All but a small fraction of patients choose euthanasia in jurisdictions that authorize both euthanasia and assisted suicide,7 and assisted suicide is less reliable than euthanasia,8,9,10,11 so it is not certain that the statutory preference for euthanasia will be realized in practice.

I.25 In any case, a “clear and unambiguous” decision for self or practitioner administration must be made personally by the patient, “in consultation with and on the advice of the coordinating practitioner.” The decision must be recorded by the coordinating practitioner in the patient’s medical record [§50]. The patient may revoke an administration decision at any time [§51].

I.26 An administration decision could be made immediately after making a second and a final request, and during the same consultation.

I.27 Upon making an administration decision, the patient must appoint a contact person who is at least 18 years of age [§58] who can assist with obtaining a prescribed lethal substance, the safe disposal of unused parts of it [§61], and who will notify the coordinating practitioner if the patient dies [§61, §62]. A lethal substance must not be prescribed unless a contact person has been appointed [§59(6)].

I.28 Before prescribing a lethal substance for self-administration, the coordinating practitioner must provide the patient with written information about the nature lethal substance and instructions about safekeeping, preparations for use, self-administration and disposal of it, as well as potential risks and the time it will likely take to die [§65(1)]. Similar information and instructions must be provided before prescribing a lethal substance that will be administered by a practitioner [§65(2)].

Administration of lethal substance

I.29 In the case of euthanasia, the administering practitioner must ensure that the patient has decision-making capacity, is acting voluntarily and without coercion, and must administer the lethal substance in the presence of a witness [§53(6)]. The witness must be at least 18 years old and certify that the patient “appeared to be acting voluntarily and without coercion.” [§54]

I.30 No one is required to witness self-administration, nor is anyone required to confirm the decision-making capacity of a patient who decides to ingest a lethal prescribed substance. The Act does not require self-administration to occur in private or in any particular place. A patient is not required to advise anyone of his plans. Thus, in some cases, death by self-administration may occur in public or inconvenient places or may not be discovered for some time.

I.31 Further, 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 [§55(2)b(i)].12 Presumably, a patient who does not recover capacity will die within 12 months from the underlying terminal illness or condition [§10(1)a(ii)].

I.32 Only an administering practitioner (i.e., an EAS trained medical or nurse practitioner or nurse) may administer a lethal substance prescribed under the Act. Anyone else who does so commits a crime and is liable to 14 years imprisonment. The offence is complete even if the patient does not die, so it appears that if death ensues the person administering the lethal substance is also liable to be charged for murder or manslaughter [§140]. On the other hand, it appears that anyone may assist a patient who needs help in self-administering a lethal substance in accordance with the Act [§147].13

Falsification of death certificates

I.33 The Act does not require the medical practitioners responsible for euthanasia or assisted suicide to complete the death certificate for the patient [§81]; nurse practitioners and nurses cannot do so even if they act as administering practitioners.14

I.34 It was the Commission’s view that a person who has been diagnosed with a terminal illness [incorrectly described as "a dying person"] does not commit suicide but "hastens his death" if he voluntarily consumes a lethal substance: "Health practitioners who follow an exacting process to assist a dying person to choose the timing of their death should not be characterised as assisting suicide."15 Notwithstanding the Commission’s claim that it "[did] not intend to dictate what language people use,"16 the Act (which it drafted) does exactly that.

I.35 According to the Act, for legal purposes, someone who dies from ingesting a lethal substance by self-administration or by practitioner-administration under the specified conditions is declared not to have died by “suicide” but from the underlying disease, illness or medical condition [§8]. The death is not reportable to the coroner [§171]. Medical practitioners required to provide a death certificate (who need not be either coordinating or consulting practitioners) are forbidden to refer to “voluntary assisted dying” (euthanasia or assisted suicide) in the certificate, and “must state . . . that the cause of death was the disease, illness or medical condition . . . from which the person suffered” [§81].

I.36 However, the Commission defined “voluntary assisted dying” (euthanasia and assisted suicide) as the administration or self-administration of a lethal substance “for the purpose of bringing about [a] person’s death.”17 It stated that the cause of death in "voluntary assisted dying" is administration or self-administration of a lethal substance,18 - not the underlying medical condition. The Commission explained that what the Act would allow was, under the law as it then stood, suicide, assisted suicide, murder or manslaughter.19

I.37 The Act goes to some lengths to avoid stating explicitly "voluntary assisted dying" causes the death of a patient. Ultimately, however, it implicitly acknowledges that administration or self-administration of a lethal substance - not the underlying condition - is the cause death. It defines "voluntary assisted dying" as "the administration of a voluntary assisted dying substance [Schedule 1], then defines "voluntary assisted dying substance" as "a substance approved by the chief executive under section 160" [Schedule 1]. Finally, in §160 it states that a voluntary assisted dying substance is used "for the purpose of causing death." This is affirmed when the Act states that such substances are prescribed in order to cause death [§22(1)d,e, §52(2)],and by provisions that protect EAS practitioners from prosecution for murder, assisted suicide and related offences [§147(2), §148(2)].

I.38 It is thus clear that the Act requires falsification of the cause of death. Falsification of the cause of death on death certificates is contrary to international standards for identifying causes of death20 that are acknowledged by the Australian government and applied by medical practitioners, pathologists and Queensland coroners.21 The contradiction becomes apparent if one compares death by lethal injection administered by legally authorized practitioners (EAS-trained medical and nurse practitioners and nurses) and death by lethal injection by unauthorized practitioners (non-EAS trained practitioners or pharmacists) in identical circumstances following exactly the same procedural guidelines and otherwise in accordance with the Act. The death of a patient from a lethal injection would be

a) an unreportable death, certifiable as a natural death caused by the underlying illness, if the injection were given by an EAS trained nurse in accordance with the Act [§8,§81,§171];

b) a reportable death,22 certifiable as homicide caused by injection of a toxic substance, if the injection were given by a registered nurse who was not EAS-trained, or by a pharmacist.23

I.39 Falsification of death certificates was one factor enabling a British medical practitioner, Dr. Harold Shipman, to murder at least 215 and as many as 260 patients between 1974 and 1998.24 The Chairman of the Shipman Inquiry commented unfavourably upon practitioner “modification” of the cause of death in death certificates so as not to “distress relatives” or “involve the coroner.”25

Voluntary assisted dying care navigator service (VADCNS)

I.40 The government plans to approve a service “to provide support, assistance and information” about euthanasia and assisted suicide [§156]. Given this specific focus, VADCNS will not be comparable to an agency or service that provides information and assistance in relation to a variety of government and health services. It will be a euthanasia/assisted suicide enabling service. VADCNS will be dedicated specifically to enabling euthanasia and assisted suicide.26

Institutional obligations

I.41 The Act refers to participation by “relevant entities” that operate a “facility” that provides “a health service, residential aged care or personal care.” Such facilities include private and public hospitals, hospices, and nursing homes, hostels or other facilities providing "nursing or personal care" for persons who require it "because of infirmity, illness, disease, incapacity or disability." They also include "residential aged care" facilities that provide accommodation, meals, cleaning services, furnishings, furniture and equipment and nursing and personal care staff [§86-88].

I.42 While it is not explicitly stated, it is clear that the Act does not require an entity to provide information about EAS services [§90(1)c)], nor does it prohibit refusal to provide information. However, if a patient in a facility asks “an entity” (i.e., facility staff or an institutional representative) for such information and the information is not provided, the entity must not hinder the person from accessing information about EAS services. It must allow registered health practitioners or a member or employee of the official navigator service “reasonable access” to the person who is seeking such information [§90(2)].

I.43 Similarly, the Act does not require an entity to provide EAS request and assessment services [§92(1)b, §93(1)b, §94(1)c, §95(1)c, §96(1)c], nor to provide euthanasia or assisted suicide [§97(1)c]. Again, this is not explictly stated, and refusal is not prohibited. 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 [§98].

I.44 A person receiving services at a facility that does not provide euthanasia or assisted suicide can advise the entity (personally or through an agent) that he wishes to request or have EAS [§92(1)a, §93(1)a, §94(1)b, §95(1)b, §96(1)b, §97(1)b]. When this occurs, the Act imposes obligations on the entity related to the request and assessment process.

I.45 With respect to requests, the entity must allow medical practitioners and witnesses “reasonable access” to the person at the facility so that the requests can be made in accordance with the Act [§92(2), §93(2)]. If the requested medical practitioner is unable to attend, the entity “must take reasonable steps to facilitate the transfer of the person to and from a place” where the requests may be made [§92(3), §93(3)].

I.46 Obligations imposed in relation to assessments, administration decisions and the provision of euthanasia/assisted suicide depend upon whether or not the person requesting EAS is a “permanent resident” of the facility. People are “permanent residents” if the facility is their “settled and usual place of abode” where they normally live or if they have “security of tenure” at a residential aged care facility. Security of tenure refers to the legal protection afforded residential care recipients, who can be required to leave residential care service only for certain reasons, only if suitable alternative accommodation is available, and only if they are given 14 days’ notice.27 A person temporarily residing at a facility like a hospital or hospice is not a permanent resident [§89].

I.47 In the case of permanent residents, assessment, administration decisions and the provision of euthanasia/assisted suicide are expected to occur at the facilities where they reside, apparently because the facilities are considered to be their homes.28 For these purposes an entity must allow a medical practitioner “reasonable access” to the resident at the facility [§94(2)a, §95(2)a, §96(2)a, §97(2)a]. If the practitioner is unavailable, the entity “must take reasonable steps to facilitate the transfer of the person to and from a place” where the procedures can be carried out [§94(2)b, §95(2)b, §96(2)b, §97(2)b].

I.48 If the person to be assessed is not a permanent resident, assessment, administration decisions and the provision of euthanasia/assisted suicide are expected to occur elsewhere. The entity “must take reasonable steps to facilitate the transfer of the person to and from a place” where the procedures can be performed [§94(3)a, §95(3)a, §96(3)a, §97(3)a]. However, if such a transfer “would not be reasonable in the circumstances,” the entity must allow a medical practitioner “reasonable access” to carry out the procedures at the facility [§94(3)b, §95(3)b, §96(3)b, §97(3)b].

I.49 According to the Act, transfer would not be reasonable if it would be likely to cause “serious harm” to the EAS candidate, adversely affect access to euthanasia/assisted suicide (eg, through loss of capacity), cause “undue delay and prolonged suffering”, or if the transfer location is unable to receive the person. Possible financial loss or costs incurred by the candidate must also be considered [§94(4), §95(4), §96(4), §97(4)]. Decisions about transfers cannot be made by entities; they must be made by the coordinating practitioner, unless the person and entity choose a different medical practitioner to make the decision [§86]. While this seems to imply that disputed cases might be resolved by a binding third party decision, this is not required; the Act clearly allows a coordinating practitioner to proceed in the facility, notwithstanding entity/collective objections.

Oversight

I.50 The operation of the Act is to be overseen by a Voluntary Assisted Dying Review Board consisting of five to nine paid members appointed by the Minister for Health and Ambulance Services for a term of not more than three years. A member must have expertise in medicine, nursing, pharmacology, psychology, social work, ethics, law, or some other field the minister considers relevant [§124]. The Board is to monitor and promote compliance with the Act by all participants and may refer cases to the police, registrar-general of births, deaths, and marriages, State Coroner, health ombudsman and state chief executive. It is required to record and analyze information it acquires [§117] and must report upon its operations at least annually [§134-135].

Administrative review of practitioner decisions

I.51 The Queensland Civil and Administrative Tribunal (QCAT) is empowered to review and overturn decisions about residency, capacity, and voluntariness (not diagnosis or prognosis) by coordinating and consulting practitioners [§99, §105]. An appeal to QCAT may be made by the patient, patient’s agent or another person “who has a sufficient and genuine interest in the rights and interests” of the patient [§100].

I.52 If a QCAT panel decides the patient does not satisfy the conditions of residency, capacity or voluntariness, the patient is ineligible for EAS, the service may not be provided and the decision is final. If a QCAT panel decides the patient does meet eligibility requirements, the decision can be appealed to an appeal tribunal if the panel did not include a Supreme Court or District Court judge [§106].

I.53 Coordinating practitioners may refuse to continue in their roles 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. [§115].

Statutory principles

I.54 The Act identifies eight principles underpinning the statute:

(a) human life is of fundamental importance; and

(b) every person has inherent dignity and should be treated equally and with compassion and respect; and

(d) every person approaching the end of life should be provided with high quality care and treatment, including palliative care, to minimise the person’s suffering and maximise the person’s quality of life; and

(e) access to voluntary assisted dying and other end of life choices should be available regardless of where a person lives in Queensland; and (f) a person should be supported in making informed decisions about end of life choices; and

(g) a person who is vulnerable should be protected from coercion and exploitation; and

(h) a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected. [§5]

I.55 It is possible to group the principles into three categories:

(a) to (c) are broad principles relevant outside the context of the Act;
(d) to (f) are specific to end-of-life issues;
(g) and (h) are directed to the protection of individuals.

I.56 Principles within the first and second categories are arranged in order of increasing specificity; the order is reversed in the third category. However, the principles within each of the categories are all arranged in order of potentially diminishing consensus, depending upon the meaning given to the terms in each.

In the first category, most people would agree with principle (a), some might question the meaning of “dignity” in principle (b) but suport for principle (c) would depend upon the meaning and weight given to “autonomy”.
In the second, one can hardly imagine opposition to principle (d), but many would reject the presumption in principle (e) that euthanasia and assisted suicide are morally acceptable end-of-life choices. Even more would reject principle (f) if it were understood to impose an obligation on objecting practitioners to “support” a decision in favour of EAS — whatever “support” might mean.
Similarly, one would expect consensus about (g), but not about (h) absent agreement about what respect for freedom of conscience, religion, belief and culture actually means.

The illusion of neutrality

"Rights balancing"

I.57 The Act seems to give equal weight to all of the principles. 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. For example, freedom of conscience could be overridden because an adjudicator believes that patient autonomy or culture deserves more respect, or that practitioner freedom of conscience is less important than access to euthanasia and assisted suicide. An adjudicator with different underlying beliefs about autonomy, freedom and conscience could be expected to reach different conclusions. For present purposes it does not matter which conclusion is “correct.” The point is that 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.

Therapeutic homicide and suicide

I.58 People reasonably disagree about whether or not it is morally acceptable to kill people and help them to kill themselves at a time of their choosing under conditions specified in the Act. Further, even if it is held to be morally acceptable under the conditions specified in the Act, there is disagreement about whether or not euthanasia and assisted suicide are health care or part of medical practice. The Commission recognized both issues.29 With respect to the latter, it said:

Views differ as to whether voluntary assisted dying is health care. It is an end of life option governed by medical assessments and prescriptions by medical practitioners and designed to minimise suffering and maximize quality of life. In that context, many, including Queensland Health, consider it to be a form of health care. . . Others take an entirely different view, including various entities, some palliative care specialists, other health practitioners and individuals from many walks of life. They fundamentally object . . . on ethical, health policy or other grounds. The right of individuals and entities to take these different views should be respected.30

I.59 Queensland Health recommended that "[v]oluntary assisted dying should be clearly defined in Queensland legislation to be a form of healthcare.”31 However, the Act avoids explicit definition. Instead, it simply 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 [I.34-I.35]. This does not demonstrate respect for different views. On the contrary, it effectively imposes a chokehold on public discourse, suppressing the words needed by objecting practitioners - and even judges - to express their reasoning.32 Canadian physicians have explained the problem:

By redefining euthanasia and assisted suicide as therapeutic medical services, the [Canadian Medical Association] made physician participation normative for the medical profession; refusing to provide them in the circumstances set out by law became an exception requiring justification or excuse. That is why public discourse in Canada has since centred largely on whether or under what circumstances physicians and institutions should be allowed to refuse to provide or collaborate in homicide and suicide (notes not included).33

Summary

I.60 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 physcial 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.

I.61 Only EAS-trained medical practitioners with at 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.

I.62 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.

I.63 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.

I.64 A medical practitioner who accepts a request must assess the patient's eligiblity. 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.

I.65 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, and experience elsewhere demonstrates that very few choose assisted suicide when both euthanasia and assisted suicide are available.

I.66 The second request, final request, final review 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.

I.67 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-administer lethal medication at any time and place, without notifying anyone. 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.

I.68 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.

I.69 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 related to a variety of government and health services.

I.70 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.

I.71 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, “take reasonable steps to facilitate" patient transfers to enable requests to be made and accepted elsewhere.

I.72 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."

I.73 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.

I.74 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.

I.75 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.

NOTES

1. Voluntary Assisted Dying Act 2021 (Qsld).

2. Australia, Queensland Law Reform Commission, A legal framework for voluntary assisted dying (Brisbane: QLRC, May 2021) (Peter Applegarth) [QLRC 2021].

3. Ibid at para 6.124.

4. Queensland Health, "Voluntary Assisted Dying in Queensland: Access for regional and remote Queenslanders" (17 September, 2021) Queensland Health (website).

5. Eliana Close et al, "Voluntary assisted dying and telehealth: Commonwealth carriage service laws are putting clinicians at risk" ( Nov 2021) Medical J Australia 215:9 406.

6. “There is no limit on how many times this may occur.” QLRC 2021, supra note 2 at para 8.68.

7. Ibid at Table 10.1.

8. C Harty et al, "The Oral MAiD Option in Canada, Part 2: Processes for Providing — Review and Recommendations" (18 April 2018) Canadian Association of MAiD Assessors and Providers (website) at 7.

9. C Harty et al, "The Oral MAiD Option in Canada, Part 1: Medication Protocols" (18 April 2018) Canadian Association of MAiD Assessors and Providers (website) at 6.

10. F Bakewell and VN Naik, "Complications with Medical Assistance in Dying (MAID) in the Community in Canada: Review and Recommendations" (28 March 2019) Canadian Association of MAiD Assessors and Providers (website) at 7.

11. Royal Dutch Medical Association (KNMG/RDMA), “Guidelines for the Practice of Euthanasia for the Practice of Euthanasia and Physician-Assisted Suicide" (August 2012) KNMG/RDMA (website) at 17.

12. QLRC 2021, supra note 2 at para 10.205, 10.209.

13. Ibid at para 17.87-17.88. Note that in these paragraphs the Commission suggests that someone other than an administrating practitioner cannot legally assist in self-administration, but that is not consistent with the effect of §52(7)c and §147(1)a.

14. Births, Deaths and Marriages Registration Act 2003 (Qld) s 30.

15. QLRC 2021, supra note 2 at para 1.50.

16. Ibid at para 1.40.

17. Ibid at para 1.5.

18. Ibid at para 15.264.

19. Ibid at para 1.36.

20. World Health Organization, International Statistical Classification of Diseases and Related Health Problems, 10th revision, 2nd ed vol 2 (Geneva, Switzerland: World Health Organization, 2004) at para 4.1.2.

21. "State Coroner’s Guidelines 2013 Chapter 8" (September 2014) Queensland Courts (website) at para 8.6 [Coroner’s Guidelines].

22. Coroners Act 2003 (Qld) s 8(3)b and d

23. Coroner's Guidelines, supra note 18 at para 8.6.

24. United Kingdom, The Shipman Inquiry, First Report: Death Disguised (London: HMSO, 19 July 2002) vol 1 (Dame Janet Smith) at para 14.2.

25. United Kingdom, The Shipman Inquiry, Third Report. Death Certification and Investigation of Deaths by Coroners (London: HMSO, 14 July 2003) (Dame Janet Smith) at5.39—5.40.

26. QLRC 2021, supra note 2 at para 21.67-21.69.

27. User Rights Principles 2014 (Cth) s 6– 7.

28. QLRC 2021, supra note 2 at para 15.2, 15.229, 15.239, 15.261, 15.271, 15.277.

29. Ibid at 420, n 2-3.

30. Ibid at para 15.218.

31. Ibid at para 15.213, bullet 3.

32. Sean Murphy, "To kill - or not to kill? That is the question. An answer for a Dying with Dignity Clinical Advisor." Protection of Conscience Project (website).

33. Rene Leiva et al, "Euthanasia in Canada: a Cautionary Tale" (2018) World Med J 64(3)17 at 19.