Queensland's Voluntary Assisted Dying Act (2021)
Impact on freedom of conscience for health care practitioners and institutions
Full Text
Introduction
II.1 Part I assumed the willing participation of health care practitioners and facilities with the provisions of the Act. We now consider provisions of the Act that have an impact on practitioners who, for reasons of conscience, are unwilling to participate in euthanasia and assisted suicide or comply with other requirements of the law.
II.2 It is important to recognize that, with respect to EAS, the health care professions are not divided into sharply defined groups of objecting and non-objecting practitioners. An undetermined number may object absolutely to the procedures for reasons of conscience, but the position of many practitioners is more fluid, depending upon the nature of the illness or condition said to justify EAS. Their support or opposition is also likely to reflect their opinions about a patient’s decision-making capacity, voluntary consent, or other issues they consider relevant in certain cases or certain kinds of cases. This is one reason why a policy of registering conscientious objectors is unfair and ill-advised, and why Part II considers the relevance of the Act’s provisions about eligibility, capacity, discussion with patients, etc. - not just provisions specific to conscientious objection.
Eligibility
II.3 In general, the broader the grounds for euthanasia and assisted suicide, the more likely it is that conflicts of conscience will arise among health care practitioners. Those willing to provide euthanasia or assisted suicide for terminally ill patients may be much less willing to end the lives of people with chronic illness, and many more would be inclined to resist calls to kill or assist in the suicide of physically or cognitively disabled patients. By restricting eligibility for EAS 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
II.4 Practitioners not opposed to euthanasia and assisted suicide in principle may object to providing the services for patients whose decision-making capacity is questionable. Two factors relevant to assessing decision-making capacity are of particular interest: limited capacity and fluctuating capacity.
Limited capacity
II.5 A person may be capable of making some decisions, but not others [§11(3)a]. Applying this to euthanasia and assisted suicide introduces a problem apparently unrecognized by Queensland and Canadian legislators and by the Canadian judges who ordered the legalization of the procedures in the case of Carter v Canada (Attorney General).34
II.6 The ability of practitioners to perform capacity assessments for euthanasia and assisted suicide is disputed. On the one hand, it is argued that assessing patient competence for these procedures requires expertise that is not necessarily possessed by the majority of physicians.37 On the other, the plaintiffs convinced the Carter trial court judge (and ultimately the Supreme Court of Canada) that obtaining informed consent for assisted suicide and euthanasia is no more difficult than obtaining informed consent for customary medical treatment.36 It is instructive to set side by side the evidence accepted on this point by the trial court judge in Carter and comments about capacity later made by an objecting physician (Physician D):
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Madam Justice Lynn Smith
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Physician D
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Dr. Ganzini, a geriatric psychiatrist and Professor of psychiatry and medicine. . . cites the decision whether to undergo a neurosurgical procedure as an example of a cognitively demanding one, since the risks, benefits, and various trade-offs between short-term and long-term gains can be very complex and challenging to understand.
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The decision to have medical aid in dying requires significant “meta” thought and reflection. It is more complex than even a decision about level of care, antibiotic treatment for pneumonia, or blood pressure pills. It is even at a different level than the choice to take chemotherapy or not.
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In contrast, she says,the risks and benefits of a lethal prescription are straightforward and not cognitively complex. The risk is that the prescription might not work; the benefit is that the patient’s life will end at a time of her choosing (emphasis added).35
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All of our patients are vulnerable, many of them have concomitant psychiatric disorders, and almost all of them are demoralized to a certain extent that is normal in the context of a life-threatening illness. These issues make the determination of competence very difficult because of the gravity of deciding to end one’s own life(emphasis added).38
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II.7 The italicized passages demonstrate that a life-or-death decision has, for Physician D, a completely different significance than it has for Dr. Ganzini. The risk perceived by Physician D is that the patient might die. The risk perceived by Dr. Ganzini is that the patient might live (at least, for a time). Here we see that different underlying philosophical or ethical views about life and life-ending acts can significantly affect one’s views about the existence and nature of risk. The problem of a priori inescapable biases in favour of an outcome is intrinsic to capacity assessments and cannot be avoided in euthanasia and assisted suicide.
II.8 According to a knowledgeable and experienced physician, each capacity assessment must be made within the context of the kind of decision-making contemplated. It is also influenced by the risks involved in the decision, life-or-death consequences calling for the highest level of capacity.39 A cognitively impaired patient may be considered competent to decide whether to take an aspirin for a headache, but not to make a decision about neurosurgery because of an inability to understand a complex procedure and evaluate its potential consequences.
II.9 In Dr. Ganzini’s opinion, the only thing the patient needs to understand is that a lethal injection will end her suffering by causing her death, and that, if it fails, a second dose may be required. On this view, it is possible that, under §11(3)a, patients might be deemed capable of choosing to die by lethal injection even if they would be considered incapable of making challenging medical decisions about alternative treatments and palliative care. Closely related to this, the burden of illness may make it easier to understand the euthanasia/assisted suicide process than to understand alternative treatment options, inclining a patient to choose what is more easily understood than what may offer satisfactory relief. In either situation, practitioners otherwise willing to provide euthanasia/assisted suicide may be unwilling to do so, even if colleagues deem the patient legally capable of making the decision.
Fluctuating capacity
II.10 The Act recognizes that “capacity can change or fluctuate, and a person may temporarily lose capacity and later regain it.” [§11(3)b] This issue was considered by the Supreme Court of Canada in relation to approving euthanasia for patients suffering from clinical depression (major depressive disorder). The Court accepted the plaintiffs’ argument that depression undermining capacity should be treated, and, if the patient recovers sufficient capacity (even temporarily), his decision for EAS should be accepted.
Sheila M. Tucker: The evidence . . . was that you can have major depressive disorder and still be competent as a medical decision maker. What the further question was, if you are to make the further judgement about whether or not, even though you are competent, the major depressive disorder is influencing your decision about wanting to end your life, that that’s a very fine judgement. And so, the recommended answer to her from the witness, and which she agreed with, was, it’s too fine of a judgement. Simply exclude people who are actively suffering from major depressive disorder.
Justice R.S. Abella: Even if it results from the very suffering that is what you want to be able to alleviate by the decision to end your life.
Sheila M. Tucker: Yes, because you cannot rely on their decision. . . But that’s a very high threshold . . . of major depressive disorder, because she also said, it’s expressed in the context of active suffering. She said such people should be treated . . . for major depressive disorder, and if they could recover enough to reliably make a decision — they weren’t actively suffering from it to the same degree — then they should be allowed to make the decision (emphasis added).40
II.11 Even medical 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.
Disagreements about eligibility
II.12 The Queensland Civil and Administrative Tribunal (QCAT) can overturn decisions by coordinating and consulting practitioners about residency, capacity and voluntariness. A coordinating practitioner whose decision about eligibility is overturned by QCAT can refuse to continue in the role. If he withdraws, he must transfer the patient file to the consulting practitioner (if there is one) or to someone who can act as a coordinating practitioner. It is highly unlikely that such situations would involve practitioners absolutely opposed to euthanasia/assisted suicide because one would expect them to refuse to accept a first request (see II.17).
II.13 It is possible that a practitioner willing to consider EAS might accept a request but assess the patient as ineligible because of doubt (rather than conviction) about voluntariness or capacity. In such a case, reversal by QCAT might be accepted by the practitioner as resolving the doubt, allowing him to proceed.
II.14 Only if a practitioner were certain that the patient lacked capacity or was not acting freely would reversal by QCAT cause a conflict of conscience. The provision permitting the practitioner to withdraw recognizes and resolves this problem [§115(2)]. However, the Act also requires the withdrawing practitioner to transfer the patient to a colleague who can proceed with the EAS process [§.115(3)]. This certainly implies that the onus is on the withdrawing practitioner to find someone willing to kill or assist in the suicide of a patient whom he believes lacks capacity or is acting involuntarily. A practitioner may find this requirement unacceptable, and it is completely unnecessary.
II.15 Many well-connected people would be involved with an appeal of a coordinating practitioner’s decision to QCAT, and QCAT is a powerful and well-connected state instrument. 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. The new practitioner could then request the transfer of the patient from the original practitioner in the customary way. In the Project’s experience, objecting physicians are typically willing to cooperate in patient-initiated transfers in such situations, but not to initiate the transfers themselves.
Discussion with patients
II.16 We have seen that medical and nurse practitioners may suggest euthanasia and assisted suicide or initiate discussion about EAS — even if a patient has not expressed an interest. What is significant within the context of freedom of conscience is that practitioners are not required to do so. Many practitioners — not just those opposed to EAS — are unwilling to introduce the subject absent some expression of interest by the patient. Their approach reflects concern that a patient who would not normally consider EAS might be induced to ask for it if a practitioner gratuitously initiates discussion. 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.41
Objecting registered health practitioners
II.17 A medical practitioner who has a conscientious objection to euthanasia/assisted suicide may refuse to accept a first request [§16(2)a] or a referral for a consulting assessment [§26(3)a] and must immediately inform the patient or the coordinating practitioner, as the case may be [§16(6)a, §26(5)]. Further, medical practitioners and all other registered health practitioners who conscientiously object to EAS may refuse to provide information about the services, participate in the request, assessment and administration process, prescribe or supply a lethal substance and may refuse to be present when the substance is ingested or administered [§84(1)]. They must, on the other hand, inform the patient that other health practitioners or health service providers may be able to assist them [§84(2)a].
II.18 These provisions allow objecting practitioners to step aside, advising patients that they are free to seek the services from willing colleagues. Objecting practitioners are typically willing to work cooperatively with patients and others in relation to patient access to euthanasia and assisted suicide as long as cooperation does not involve an act that establishes a causal connection to or de facto support for killing patients. This enables an approach that accommodates both patients and practitioners. Presumably those who support the legislation — and there appears to be a very large number — would be willing to help patients connect with EAS practitioners. And EAS practitioners could make connection easier by advertising and identifying themselves to health service agencies and patient support groups.
II.19 The Act also requires objectors to provide
(i) information about a health practitioner, health service provider or service who, in the practitioner’s belief, is likely to be able to assist the person; or
(ii) the details of an official voluntary assisted dying care navigator service that is able to provide the person with information (including name and contact details) about a health practitioner, health service provider or service who may be able to assist the person. [§84(2)b]
II.20 Providing information is not necessarily a morally neutral or morally acceptable act. For example, the Australian Medical Association states that physicians are forbidden to provide knowledge that facilitates torture or other cruel, inhumane or degrading treatment, and must not facilitate capital punishment by instructing or training executioners.42 In 2002, the General Medical Council in the United Kingdom suspended the license of a physician for six months because he had provided information about live donor organ transplantation to undercover reporters and had thus encouraged the trade in human organs, even though he had not actually participated in the trade.43
II.21 In the Project's experience, objecting practitioners will provide patients with information about euthanasia and assisted suicide so that a patient can make an informed decision. They are also typically willing to provide information that facilitates patient contact with other health care service providers or agencies. By this means these practitioners avoid any positive action causally connected to killing their patients, while patients remain free to pursue euthanasia/assisted suicide.
II.22 On the other hand, objecting practitioners are likely to refuse to do something that they believe implies their support for or establishes a causal connection to killing their patients. Thus, they would provide contact information for health care providers or services generally, but may refuse to direct patients specifically to an EAS practitioner or EAS delivery service — which is what the Act requires.
II.23 So, for example, objecting practitioners would likely be willing to direct patients to Queensland’s 13HEALTH (13_43_25_84), which provides health information, advice or referrals 24 hours a day, 7 days a week,44 but not the Voluntary Assisted Dying Care Navigator Service (VADCNS). Both services can connect patients to EAS practitioners, but VADCNS is dedicated to enabling euthanasia and assisted suicide, while 13HEALTH facilitates access to all services (including, presumably, palliative care). There is no significant practical difference for the patient with respect to accessing EAS, but there is a significant ethical difference for many objecting practitioners, and their judgement on this point is reasonable.
II.24 This can be illustrated by considering the legal effect of the Act. But for the Act, practitioners providing contact information for a colleague willing to provide euthanasia or assisted suicide could be charged for murder or assisted suicide if patients were killed, or conspiracy to commit murder or assisted suicide if they were not.45 Similarly, many objecting physicians hold that by providing contact information for EAS practitioners they are morally implicated in killing their patients or helping them commit suicide: in their view, grave wrongdoings. The reasoning that underpins their conclusions about moral culpability for referring patients to others for lethal injection is identical to that underlying provisions concerning parties to offences and conspiracy in criminal law.
II.25 One of the options available in §16(2)b(i) and §84(2)b(i) is a “service . . . likely to be able to assist.” Clearly, Queensland’s 13Health would be such a service, so it appears that objecting practitioners can comply with §16 and §84 while avoiding actions involving a causal connection to or de facto support for killing patients.
Objecting speech pathologists
II.26 The Act includes provisions specific to speech pathologists who conscientiously object to euthanasia/assisted suicide. They, too, may refuse to provide information about the services, participate in the request and assessment process, and may refuse to be present when the substance is ingested or administered [§85(1)].
II.27 Objecting speech pathologists must inform their employer or the patient of their objection [§85(2)] and advise them of “another speech pathologist or speech pathologist service . . . likely to be able to assist in providing the speech pathology services requested” [§85(2)b]. Additionally, they “must not intentionally impede” access to speech pathology services [§85(2)c].
II.28 “[T]he services requested” should not be understood to mean a speech pathologist or speech pathology service willing to collaborate in euthanasia or assisted suicide. An objecting speech pathologist is unlikely to know which colleagues or services would be willing to do so, and, for reasons explained in II.22-11.24, may well be unwilling to assist in this way. The requirement should be understood to mean providing information about other available speech pathology services, full stop. This would be analogous to a physician providing information about other available health service providers; it would not be problematic, and it would be more realistic.
II.29 Speech pathologists employed by a health service provider whom they know “or ought reasonably to know” is or is likely to be an EAS practitioner must inform the provider of their objections [§85(4)a] and “discuss . . . how they can practise in accordance with their beliefs without placing a burden on their colleagues or compromising a person’s access to voluntary assisted dying” [§85(4)b].
II.30 The requirement to provide advance notice to an employer who provides EAS services is reasonable. However, the Act appears to impose duties on an objecting speech pathologist to ensure that colleagues are not burdened and access to euthanasia and assisted suicide is not compromised. The Act does not impose these duties on health care practitioners because existing professional guidance from the Australian Medical Association AMA include the same provisions, from which the wording of the Act was taken.46
II.31 The obligations to ensure access to euthanasia and assisted suicide while accommodating objecting employees ought to be imposed on employers who are providing euthanasia and assisted suicide, not upon employees who find the procedures abhorrent. Similarly, employers — not employees — should ameliorate burdens that may have to be shifted. They can do so by arranging exchanges of unobjectionable tasks, adjusting timetables, etc. It is reasonable to expect objectors to participate in discussion about such arrangements and cooperate in accommodation, but the onus to fairly distribute employment tasks should be on the employer. This criticism applies also to the corresponding provision in AMA guidance.
II.32 The Act makes no provision for conscientious objection by interpreters, even though it explicitly recognizes that interpreters may be needed [§157]. This is because interpreters are engaged for specific assignments and “best practice” is to brief them before they are engaged, which permits them to refuse an assignment for reasons of conscience.47
Falsification of death certificates
II.33 Queensland legislators apparently believe that legal euthanasia and assisted suicide are beneficial forms of medical treatment. However, beneficial medical treatments do not require a bureaucracy of medical deception. Deception increases the likelihood of conflict and controversy. Indeed, some EAS supporters may worry that mandating deceptive practices is counterproductive.
II.34 Medical practitioners not responsible for euthanasia and assisted suicide deaths and who object to the procedures for reasons of conscience are likely to object to falsifying the cause of death in death certificates; so, too, may physicians who support but do not act as EAS practitioners. They may be uncomfortable lying or dissembling to families about how their loved ones died, which would seem to be unavoidably associated with falsifying causes of death. Some may be concerned that falsifying records and lying to families 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. EAS practitioners may share these concerns.
II.35 If the state insists that death certificates must be falsified, unwilling practitioners should not be compelled to participate in or support what they consider to be deceptive, unethical or professionally ill-advised practices. Since all EAS deaths must be reported to the Voluntary Assisted Dying Review Board [§55(4), §61(3), §80, §81(2)], the Act should be amended to make a medical member of the Board responsible for completing EAS death certificates (assuming that a Board member’s objection to doing so would also be accommodated).
Summary
II.36 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.
II.37 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.
II.38 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.
II.39 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 are cannot be avoided in EAS assessments.
II.40 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 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.
II.41 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.
II.42 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 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.
II.43 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.
II.44 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).
NOTES
34. Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331.
35. Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII) [Carter 2012] at para 770–774.
36. Ibid at para 831.
37. Ibid at para 775.
38. Response of Physician D to Administrator, Protection of Conscience Project ( 9 September, 2016) (emphasis added). The response was an anecdotal report received as a result of a request from the Project Administrator for details about adverse effects experienced by Canadian health care practitioners attributable to the legalization of assisted suicide and euthanasia. The respondents identified themselves to the Administrator, who promised to preserve their anonymity in discussion of the reports at a symposium at the J. Reuben Clark Law School of Brigham Young University. Discussion of the methodology of capacity assessments here is drawn from an earlier version at Sean Murphy, “Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications" (2017) 31:2 BYU J Pub Law 333 at 350–353 [Murphy 2017].
39. Physician H, explanation offered in the presence of the Administrator, Protection of Conscience Project, on 10 October, 2015: verified by the Administrator prior to publication in Murphy 2017, supra note 38 at 352.
40. Supreme Court of Canada, “35591, Lee Carter, et al. v. Attorney General of Canada, et al (British Columbia) (Civil) (By Leave) Webcast of the Hearing on 2014-10-15” (22 January, 2018) 144:32/491:20 to 145:57/491:20.
41. QLRC 2021, supra note 2 at para 6.116–6.117.
42. Australian Medical Association, "Medical Ethics in Custodial Settings - 2013. Amended 2015 " (27 March, 2013), AMA (website)
43. "Organ trade GP suspended", BBC News (15 October, 2002).
44. Queensland Government: Queensland Health, “Contact us: Need medical advice?” Qld Govt, Queensland Health (website).
45. QLRC 2021, supra note 2 at para 17.87.
46. Ibid at para 14.10, 14.93-14.96.
47. Ibid at para 14.92.