Queensland's Voluntary Assisted Dying Act (2021)
Impact on freedom of conscience for health care practitioners and institutions
Full Text
Introduction
“Entities”
III.1 The Commission explained that “entity” is intended to mean “a non-natural person, typically a corporation or body given legal status” (emphasis added).48 Consistent with this, the Act describes an “entity” only as “other than an individual” [§87]. It is reasonable to extend this to include unincorporated businesses and collectives of various kinds, and that is the meaning assumed in this Part. Regardless of structure, “institution” in the sense relevant here is an entity that always manifests a collective enterprise by individuals, so the term “entity/collective” is used in this Part to keep this in mind.
III.2 The Act refers to facilities operated by entities 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].
Institutional freedom of conscience
III.3 The concept of institutional freedom of conscience or religion has been examined and challenged repeatedly since at least the early 1970's. Claims that facilities like hospitals and hospices cannot rely on constitutional guarantees of freedom of conscience because they are not individuals are untenable because they are contradicted by legal history and widespread practice. At best, they provide superficial camouflage for efforts to compel unwilling institutions to provide morally contested services favoured by the claimants, or anti-religious discrimination, or both.49
III.4 The Commission acknowledged the controversy about whether or not an institution can exercise freedom of conscience. It casually decided against an institutional right to freedom of conscience, recognizing only an institutional interest in maintaining its identity and integrity.50 Hence, the Act admits the possibility of conscientious objection by individuals (§84–85) — but not by entities/collectives [§86-98]. It addresses only the obligations of entities/collectives that do not participate in euthanasia or assisted suicide — for any reason.
III.5 It appears that one of the reasons underlying this strategy was a desire to avoid even implicitly acknowledging an institutional right to refuse to participate in euthanasia and assisted suicide for reasons of conscience.51 Consistent with this, the Act states that one of its main purposes is to protect health practitioners — not entities/collectives — who choose “to assist or not to assist” in euthanasia or assisted suicide [§3(d)]. Its statement of underlying principles acknowledges and presumes freedom of thought, conscience, religion, belief, and enjoyment of culture for individuals — not for entities/collectives [§5].
III.6 Thus, while the Act implicitly acknowledges that entities/collectives can refuse to participate in euthanasia and assisted suicide [§90(1)c, §92(1)b, §93(1)b, §94(1)c, §95(1)c, §96(1)c, §97(1)c], this is based merely on the exercise of property rights, which can be overridden by statute.52 It places refusals based on moral/ethical
objections to killing people on the same level as refusals based on pragmatic considerations like lack of trained personnel. Its message is that constitutional guarantees of freedom of conscience are irrelevant to decision-making by entities/collectives about involvement in killing people, and, if entities/collectives defend refusals on that basis, the Act is designed to put them at a disadvantage.
Critical presumption
III.7 Contrary to the position taken by the Commission, this paper presumes that entities/collectives are entitled to rely upon constitutional guarantees of freedom of conscience, notwithstanding differences between individuals and collectives in the exercise of that freedom. Individuals and entities/collectives are equally concerned to avoid complicity in perceived wrongdoing. This obviously includes taking part directly in what they deem to be a wrongful act, but also causally contributing to by collaboration or contingent cooperation. However, factors relevant to moral decision-making by entities/collectives are not necessarily identical to those affecting the exercise of freedom of conscience by individuals, nor do they play out in the same way. The concept of individual freedom of conscience is applied analogically to collectives, so some differences are to be expected.53
Scope
III.8 The focus here is the effect of the Act upon institutions in Queensland that refuse to provide or facilitate euthanasia/assisted suicide (EAS) for reasons of conscience. It is specific to the exercise of preservative freedom of conscience.54,55 The policy of such institutions typically reflects desire to preserve institutional moral integrity by refusing to be complicit in, cooperate in or otherwise support or encourage the killing of patients and a desire to prevent harm to others. Institutional religious integrity is not addressed in this review.
Institutional challenges
Participation, collaboration and cooperation
III.9 The Act does not require entities/collectives to provide euthanasia or assisted suicide 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.
III.10 However, objecting individuals and entities/collectives also want to avoid contributing to EAS in morally significant ways: ordering, recommending or encouraging it and other forms of collaboration or facilitation, such as helping patients connect with someone willing to kill them or help them kill themselves. Beyond collaborative conduct entailing complicity, individuals and entities/collectives also wish to avoid forms of cooperation that they may consider morally wrong in certain circumstances [“contingent cooperation”].56
III.11 The problem of contingent cooperation is especially troublesome
for institutions if one of their patients wants EAS.57 Providing advance notice of institutional policies is an important strategy for avoiding conflicts with patients and difficulties associated with contingent cooperation. Hence, the Act’s requirement that entities/collectives provide such notice furthers the accommodation of both patients who may want EAS services and entities/collectives unwilling to provide them [I.43].
III.12 Ideally, people who may want EAS services will avoid facilities operated by entities/collectives unwilling to provide or facilitate them. However, this may not always work out in practice, so the Act has been designed to enable the state to compel unwilling entities/collectives to at least cooperate in killing people in their care or helping them kill themselves.
III.13 Two kinds of cooperation required — enabling access to information about EAS and facilitating requests for EAS — pertain to all persons being cared for in a facility. 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.
III.14 Obligations to cooperate imposed on objecting entities/collectives by the Act arise only if patients notify institutional staff or representatives that they want EAS information, want to make EAS requests, have EAS assessments, etc. Requests directed to non-institutional staff would not create institutional obligations. This is reasonable, since only entities/collectives aware of a request could be expected to act on an obligation, and they can become aware of requests only through their employees or representatives. But it also means that patients and practitioners cannot proceed with EAS in an objecting institution unless they notify insititutional authorities at each stage in the EAS process. [§90(1)b,
§92(1)a, §93(1)a, §94(1)b, §95(1)b, §96(1)b, §97(1)b].
Legal occupancy status
III.15 The Act groups EAS candidates into two classes based on legal occupancy status: “permanent residents” and those who are not. It describes members of the latter group as those who reside temporarily in a facility like a hospital or hospice, but does not name the group [I.46]. This implies that they are ‘temporary residents,’ inviting the unwarranted inference that they have some kind of residential rights. For this reason, those who are not “permanent residents” within the meaning of the Act are identified here as “institutional occupants.”58
III.16 For present purposes it is assumed that, apart from the Act, permanent residents have legal status analogous to residential tenants in relation to the institutional space they occupy, but institutional occupants do not.59 It is further assumed that an entity/collective may not be able to include a no-EAS-on-premises condition in a permanent residency agreement, but can include such a condition in institutional occupancy agreements.60
III.17 To the extent this is correct, permanent residents would seem to be free to have visitors come and go as they choose, to communicate privately with visitors, and to do as they wish inside the premises they occupy, even if the premises is part of a larger facility. Owners and managers of a facility have no authority to manage or interfere in permanent residents’ affairs without their consent, except to the extent necessary to protect the entity/collective’s legitimate interests (including freedom of conscience), other residents and facility staff. Assuming these further inferences are correct, it is obvious that permanent residents would be able to arrange for and obtain EAS services in their own premises, notwithstanding opposition by owners of the facility, even if the Act did not address the issue. This would not be true of institutional occupants.
III.18 The facilities to which the Act pertains encompass a broad range of designs and living arrangements [III.2]. A permanent resident may have a self-contained private apartment or merely a small private room and bathroom (much like a private hospital room). Institutional occupants are more likely to share a room with one or more others, separated from them only by curtains. However, this may also be true of people who have security of tenure in some residential aged care facilities [I.46], whom the Act declares to be permanent residents for the purpose of access to EAS.
III.19 It is obvious that, from the perspective of an entity/collective, facility staff and other occupants, the provision of 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, but the Act does not distinguish between the two situations. Fortunately, nothing in the Act prevents entities/collectives from imposing conditions on EAS-related activities that they are required to permit in order to protect other patients,61 staff62 and institutional moral integrity. For example: a nursing home that is unable to prevent EAS in a resident’s room may refuse to take custody of EAS drugs, refuse to allow celebrations associated with anticipated EAS elsewhere in the
facility, prohibit employees from participating in or supporting the procedure, and limit the provision of EAS to times when other residents are likely to be absent or sleeping.
III.20 The Act imposes an institutional obligation to provide access to EAS information for all institutional occupants, regardless of legal occupancy status. However, the obligation arises only if a patient receiving treatment or care in a facility asks institutional staff or representatives about euthanasia or assisted suicide [I.44]. It does not apply when patients seek information from non-institutional medical or health care practitioners visiting the facility.
III.21 Independent practitioners are governed by other provisions in the Act [I.10-I.13] and professional regulations. If asked, they would be expected to provide information necessary to enable informed medical decision making. It is likely that most information sought by most patients would be provided in this way.
III.22 Were a patient to ask institutional staff for EAS information, the Act requires entities/colllectives to permit and enable the patient to obtain information about the services regardless of their legal occupancy status [I.37]. Objecting entities/collectives, like individual practitioners, may well be willing to provide patients with information necessary to enable them to make an informed decision about euthanasia and assisted suicide, as long as they can avoid doing so in a manner that causally connects them to killing their patients or makes it appear that they support or recommend the procedures [II.21–II.25].
III.23 To conform to the Act, objecting entities/collectives could require that all patient enquiries about EAS received by institutional employees be directed to staff members trained to provide patients with information necessary to enable informed decision-making without compromising institutional moral integrity. The policy could also require that discussion and communication of information take place in private, and could operate seamlessly with responses to first requests for EAS [III.28-III.31]. Note that an objecting entity/collective that provides EAS information in this way is not required by the Act to admit anyone else for the purpose of providing information [I.44].
III.24 However, a patient may ask for specific information that an entity/collective is unwilling to provide even through a designated employee, such as the name and contact information for an EAS practitioner or EAS enabling service like VADCNN [I.40].63 Here the text of the Act is critical. It specifies that an entity/collective must allow a medical practitioner or a member of VADCNN reasonable access to the patient to provide “the information that has been requested” (§90(1)c and (2)b, emphasis added). It does not, however, require an objecting entity/collective to arrange for this: only that it not obstruct arrangements made by the patient. Like individual practitioners, objecting entities/collectives could comply with the Act by directing patients
seeking EAS practitioner contact information to Queensland’s 13HEALTH [II.23] and not obstructing the arrangements subsequently made by a patient or patient’s representative to connect with someone willing to provide the information.
III.25 In sum, the cooperation required of objecting entities/collectives by the Act in relation to providing information about EAS does not appear to undermine institutional freedom of conscience.
Access to euthanasia and assisted suicide
III.26 The Act requires three requests (one witnessed), two assessments by different practitioners (and possibly assessments by determiners), and an administration decision before EAS is actually provided. From start to finish, Queensland’s EAS process involves at least seven steps, and each has to take place somewhere. Had the Act been designed to accommodate institutional freedom of conscience, objecting entities/collectives seeking to avoid moral entanglement in the process would have had three options (subject to the legal occupancy status of a patient): permanent transfer of patients seeking EAS, temporary transfers for some or all of the steps in the process, and no transfer: allowing the full EAS process to take place in a facility, but without support or participation by facility staff.64
III.27 However, the Act effectively denies institutional freedom of conscience. It imposes a number of constraints and requirements on objecting entities/collectives specifically to compel their cooperation and even collaboration, some of which go beyond legal constraints arising from legal occupancy status.
Requests for EAS
First requests
III.28 The Act requires that a first request for euthanasia/assisted suicide be accepted or refused by a medical practitioner. Refusal does not prevent EAS because a patient remains free to ask other medical practitioners to accept the request. This arrangement underpins the provisions protecting practitioner freedom of conscience [II.17-II.19] and could have been applied to protect institutional freedom of conscience,65 but the Act does not do this.
III.29 The Commission considered a patient's first request only in relation to the EAS delivery process, not within the context of caring for patients.66 In reality, patients can request euthanasia/assisted suicide at any time, even where the procedures are illegal. For example, palliative care patients experiencing grave pain and suffering sometimes ask for EAS. Experienced palliative care practitioners consider this an expression of anguish and respond by attempting to identify and ameliorate the source of distress rather than by simply ignoring the request or shutting down the conversation. It is highly unlikely that objecting entity/institutions would be interested in suppressing this kind of request or patient-practitioner exploration, as it can lead to remediation of patients' distress and relieves them of inclinations toward euthanasia.
III.30 This kind of dialogue remains possible notwithstanding the Commission's limited functional interest because the Act requires a patient request to be "clear and unambiguous" [§14(2)a]. Only if a practitioner concludes that a request is clear and unambiguous (which must surely imply an understanding of alternatives) do the obligations imposed by the Act in relation to a first request become relevant. That conclusion need not be reached the same day the patient initiates the discussion.
III.31 Objecting entities/collectives would naturally instruct their medical staff to refuse a first request that is found to be "clear and unambiguous." They could instruct them to comply with the Act by (i) informing the patient that other health practitioners or health service providers may be able to assist them [§84(2)a], (ii) providing information about Queensland’s 13HEALTH [II.23] and (iii) recording in the patient's medical record the refusal and information provided to the patient [§17]. They could also require that such consultations with patients must occur in private. It appears that non-institutional medical practitioners could be required through the credentialing process to conform to these policies.
III.32 By exploring, documenting and refusing first requests and providing information that enables patients to seek EAS elsewhere it would be possible for objecting entities/collectives (like individual practitioners) to respond compassionately to patients and manage first requests without compromising institutional moral integrity. What happens next would be up to the patient. A patient could arrange to consult with an EAS-qualified medical practitioner willing to accept a request and begin the EAS process by assessing his eligibility.
III.33 No issue would arise if the Act were to state only that an entity/collective must not obstruct patients who make such arrangements. However, it does more. It requires objecting entities/collectives to cooperate by letting EAS practitioners accept first requests in their facilities [§92(2)]: to allow a process designed to allow patients to be killed or helped to kill themselves to begin in their facilities. When an EAS practitioner cannot attend, objecting entities/collectives must "take reasonable steps to facilitate the transfer" of the patient to a location where first requests can be accepted [§92(3)]: arguably a demand for active collaboration if it is understood to mean that the entity/collective must initiate the transfer rather than merely
cooperate in a transfer arranged by the patient or others.
Second and final requests
III.34 The Act makes the same demands of objecting entities/collectives in relation to subsequent requests. The required second request can be made only after a patient has been found eligible for EAS. It must be in writing and witnessed by two people [I.21]. A patient must then personally make a “clear and unambiguous” final request for EAS to a medical practitioner by any means [I.22]. The final request could be made immediately after a second request, during the same consultation. It is obvious that second and final requests are more deliberately supportive of and causally related to euthanasia and assisted suicide than first requests, and thus more significant in moral evaluation of collaboration and contingent cooperation. The Commission ignored this, supporting the Act's coercion of objecting entities/collectives in relation to all "requests or declarations" it requires.67
III.35 The Commission purported to justify this coercion with a casual remark: "[I]t is hard to see why a patient or resident who is dying should be put to the trouble of being transferred outside of a facility to make a ‘first request’ to a practitioner who is qualified and willing to receive it" (emphasis added).68 In the first place, potential EAS candidates must be diagnosed with terminal illness, but they need not be dying, and most will not be dying when a first request is made [I.3].
III.36 The key point here, however, is the prejudice reflected by the Commission's dismissive comment. The Commission 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 only because the Commission believed it is morally acceptable to kill patients or help them kill themselves in accordance with the Act: hardly surprising, since it drafted the Act. What is remarkable is that the Commission was unable to imagine or unwilling to concede that others could reasonably and collectively hold and act upon the contrary view, and should be entitled to do so in a democratic state.
III.37 The remark is indicative of a lack of moral imagination or unreflective and entrenched authoritarianism in relation to the provision of euthanasia and assisted suicide. It is doubtful the Commission would find it "hard to see" why entities/collectives might refuse to allow their facilities to be used to enable eugenic sterilization of people described as "human wreckage,"69 "degenerates"70 and "defectives."71 Hindsight would probably enable the Commission to see and to concede that it is reasonable, prudent and consistent with the best traditions of liberal democracy to honour collective refusal to cooperate or collaborate in such practices, notwithstanding popular opinion and the views of prominent establishment influencers.
EAS assessments, administration decisions, and administration of lethal substance
III.38 A medical practitioner who accepts a first request becomes the coordinating practitioner [I.17] and must assess a patient's eligibility for EAS [I.3-I.5]. This may (but need not) involve referring the patient to a specialist [I.19]. A coordinating practitioner who finds the patient eligible must refer the patient for a second eligibility assessment by another (consulting) practitioner [I.18].
III.39 If eligibility is confirmed and the patient makes second and final requests, the patient must consult further with the coordinating practitioner to make an administration decision: to decide whether to opt for euthanasia or assisted suicide [I.25-I.28].
III.40 The Act specifies assisted suicide (self-administration of a lethal substance) as the preferred method, in which case the patient is free to decide where and when it will occur. The timing and location of euthanasia (practitioner administration) will depend upon the availability of an EAS practitioner.
Permanent residents
III.41 The Act requires objecting entities/collectives to allow all permanent residents (as defined in the Act) to have all EAS assessments, consultations and euthanasia/assisted suicide provided in their facilities, or (if practitioner is unable to attend) to "take reasonable steps to facilitate" patient transfers to enable the procedures [I.47].
III.42 Recall that the Act defines permanent resident to include people with security of tenure who live in a residential aged care facility. Prior to this, security of tenure in a residential care facility restricted but did not preclude permanent transfer in some circumstances, nor did it preclude temporary transfers for procedures not provided in the facility [I.46]. But for the Act, it appears that entities/collectives could have prohibited the EAS process in their facilities by including a no-EAS clause in contracts services. The Commission considered and expressed doubt about these issues,72 but used the Act to grant permanent residency status (and a right to have EAS services where they reside) to people living in aged residential care facilities. This significantly disadvantages objecting entities/collectives that might otherwise have been able to avoid entanglement in euthanasia/assisted
suicide through conditional residency contracts and patient transfers.
III.43 One might argue that the Act simply extends rights and freedoms associated with residential tenancy: that aged care facilities are the homes of the people in care, and that objecting entities/collectives, like landlords, should not be able to prevent them from having euthanasia/assisted suicide in their own homes. The Commission suggested this argument.73 However, landlords are not required to help tenants travel to see EAS practitioners who are unable to make home visits, so the analogy does not support the Act's demand that objecting entities/collectives must actively facilitate patient transfer to obtain the services elsewhere.
III.44 Moreover, as previously noted [III.33], it is important to know what is meant by taking "reasonable steps to facilitate" a transfer. No problem arises if it means only that the entity/collective must cooperate in a transfer or enable a transfer to be arranged by the patient or others. However, requiring them to initiate a transfer to enable EAS demands what many would consider morally unacceptable cooperation, if not collaboration.
Institutional occupants
III.45 Objecting entities/collectives can disallow EAS assessments, consultations, administration decisions and the provision of euthanasia/assisted suicide for other institutional occupants (hospital and hospice patients, for example). However, they can do so only if they "take reasonable steps to facilitate" transfers to enable the procedures elsewhere [I.48]. If that means initiating rather than simply cooperating in a transfer requested by others, the purported compromise is actually a choice between two objectionable alternatives [III.44].
III.46 Moreover, objecting entities/collectives must allow EAS procedures in their facilities (including euthanasia and assisted suicide) if transfer “would not be reasonable in the circumstances” [I.48]. What this means in practice can be decided unilaterally by the responsible EAS practitioner [I.49]. Consistent with the prejudice previously noted [III.35-III.36], the Act reflects the view that it can be unreasonable to refuse to allow
someone to be killed or helped to commit suicide in one's premises.
Practitioner credentialing (privileges)
III.47 An entity/collective may restrict the kinds of procedures and services it provides and what its employees or contracted health care personnel offer through its facilities. Public and private entities/collectives in Queensland are required by law74,75,76 to ensure that “only appropriately qualified and experienced medical practitioners undertake clinical care” in their facilities.77 Generally speaking, practitioners must be credentialed to provide services and act within a defined scope of practice.78
III.48 The law and related guidelines set only the minimum requirements for the credentialing process in Queensland’s public and private health care facilities.79 Private nursing and aged care facilities are not subject to the same rules80 but are required by national legislation to ensure that their employees are “competent” and have “qualifications and knowledge to effectively perform their roles.”81 This provides a legal mandate for credentialing by private
facilities.
III.49 Since the Act requires EAS practitioners to have special training [I.8–I.9] one would expect EAS to be specifically identified when an entity/collective that is willing to provide the services recognizes practitioners’ credentials and defines their scope of practice. On the other hand, one would expect objecting entities/collectives to refuse to include EAS in granting credentials because that would explicitly affirm the acceptability of euthanasia/assisted suicide and authorize the procedures, blatantly contradicting their moral commitments.
III.50 The Act is silent about credentialing, but it demands that entities/collectives allow qualified practitioners to provide EAS services to patients in their facilities. This poses a dilemma for objectors.
i) They could refuse to grant credentials that permit EAS, and refuse to allow uncredentialled practitioners access to their facilities. However, this would leave objecting entities/collectives liable to legal action for non-compliance with the Act. Further, EAS practitioners may surreptitiously circumvent the prohibition, which, given the requirements of the Act, would leave the entities/collectives without legal recourse, and may have other adverse affects.82
ii) They could grant other privileges to non-facility EAS practitioners, and then tolerate their provision of EAS services if they abide by restrictions imposed [III.19]. However, allowing practitioners to provide services not permitted by institutional credentials may give rise to legal liability. Moreover, it would require entities/collectives absolutely opposed to euthanasia/assisted suicide to make a policy explaining how euthanasia/assisted suicide should be provided in their facilities: an absurd or at least hopelessly convoluted approach.
iii) They could grant credentials explicitly authorizing EAS, making clear their opposition to the procedures and setting out conditions and restrictions on provision of the service in order to protect other patients, staff and mitigate harm to institutional moral integrity. This may be the only way to ensure that restrictions can be enforced.
III.51 Driving objecting entities/collectives into a trap from which they can only escape by explicitly authorizing something they find morally abhorrent is a
clever but ugly example of coerced expression, but consistent with the prejudice previously noted [III.35-III.36].
Summary
III.52 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.
III.53 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.
III.54 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.
III.55 However, patients and practitioners cannot proceed with EAS in an objecting institution unless they notify insititutional 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.
III.56 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.
III.57 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.
III.58
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.
III.59 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 share rooms with others. 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, including lethal injection. 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.
III.60 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 [I.48]. 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.”
III.61 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.
III.62 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.
NOTES
48. QLRC 2021, supra note 2 at p 457.
49. Sean Murphy, “Institutional freedom of conscience in relation to euthanasia and assisted suicideuthanasia and assisted suicide” (14 May, 2022) Protection of Conscience Project (website) [Murphy 2022] at para I.9-I.12
50. QLRC 2021, suprabsp; QLRC 2021, supra note 2 at para 15.8.
51. Ibid at para 15.25, 15.27 bullet 1, 15.54, 15.217.
52. Ibid at para 15.3–15.5.
53. Murphy 2022, supra note 49 at para I.13-I.14..
54. Introduced in Sean Murphy & Stephen Genuis, “Freedom of Conscience in Healthcare: Distinctions and Limits” (2013) 10(3) J Bioethical Inquiry 347 [Murphy & Genuis].
55. Discussed and applied in Sean Murphy et al, “The Declaration of Geneva: Conscience, Dignity and Good Medical Practice” (2020) 66(4) World Med J 41 [Murphy et al].
56. Murphy 2022, supra note 49 at para II.5.
57. Ibid at para II.6-II.9.
58. Ibid at para V.1-V.9.
59. The assumption is consistent with the differential treatment of permanent residents and institutional occupants by the Act [I.41–1.43].
60. The assumption is consistent with the Act’s requirement that an objecting entity/collective give advance notice of such limitations [I.38].
61. YouTube, “Allow Me to Die: Euthanasia in Belgium” (15 September, 2015) at 00h:40m:00s to 00h:43m:30s.
62. “Nurse diagnosed with PTSD after interaction with patient seeking euthanasia: Tribunal rules ‘her own convictions’ caused her injury. Denies claim for compensation” (10 October, 2017), Protection of Conscience Project (website).
63. Not all objecting entities/collectives would exclude VADCNN as a source of information: QLRC 2021, supra note 2 at para 15.233.
64. Murphy 2022, supra note 49 at para V.10–V.16.
65. QLRC 2021, supra note 2 at para 15.136.
66. Ibid at para 15.235.
67. Ibid at para 15.238.
68. Ibid at para 15.235.
69. Emily Murphy, "Sterilization of the Insane." The Vancouver Sun (3 September 1932).
70. Richard Cairney,“Democracy was never intended for degenerates”: Alberta’s flirtation with eugenics comes back to haunt it" (1996) 155(6) CMAJ 789 at 791.
71. Marie Stopes, Roman Catholic Methods of Birth Control (London: Peter Davies, 1933) at 197-215.
72. QLRC 2021, supra note 2 at para 15.174.
73. Ibid at para 15.2, 15.229, 15.239, 15.261, 15.271, 15.277.
74. Private Health Facilities Act 1999 (Qld) s 48(1)(b) [PHF Act].
75. Private Health Facilities Regulation 2016 (Qld) s 8.
76. Private Health Facilities (Standards) Notice 2016 (Qld) Schedule 1(2).
77. Queensland Health, "Credentials and clinical privileges standard (version 5)" (12 January 2021), Queensland Health (website).
78. QLRC 2021, supra note 2 at para 15.190.
79. Queensland Health, "Guide to credentialing and defining scope of clinical practice for medical practitioners and dentists in Queensland: A best practice guide" (June, 2014), Queensland Health (website).
80. PHF Act, supra note 74 s 9(2)b.
81. Aged Care Quality Standards, Standard 7(3)c (27 May 2022), Aged Care and Quality Safety Commission (website).
82. Kelly Grant, "Vancouver doctor cleared of wrongdoing in probe into assisted death at Orthodox Jewish nursing home", The Globe and Mail (7 August, 2019).