New South Wales' Voluntary Assisted Dying Act 2022 No. 17
Impact on freedom of conscience for health care practitioners and institutions
Sean Murphy*
Full Text
Preface
New South Wales' Voluntary Assisted Dying Act 2022 No. 17,1 drafted and introduced by Independent MLA Alex Greenwich,2 closely resembles Queensland's Voluntary Assisted Dying Act 2021. Running to 84 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 (Individual 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 The Act defines palliative care as “care and treatment” for a progressive, life-limiting "disease, illness or medical condition" intended to prevent, identify, assess, relieve or treat "pain, discomfort or suffering" in order to improve a patient's "comfort and quality of life" [Schedule 1]. It is distinguished from "voluntary assisted dying" at numerous points in the Act [§4(1)i, §10(2), §10(3), §28(1)c,
§30(4)k, §41(4)l, §180(d), §185, §186(2)b].
Eligibility
Age, residency
I.3 An eligible patient must be an adult [§16(1)a], must have lived in New South Wales 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 [§16(1)b], though citizenship and residency requirements can be waived for compassionate reasons [§17].
Diagnosis
I.4 The patient must have an "advanced, progressive" and terminal “disease, illness or medical condition" that is expected to cause death within 12 months (in the case of neurodegenerative conditions) or within 6 months in all other cases. The disease must cause suffering "that cannot be relieved in a way the person considers tolerable"[§16(1)d]. Note that "suffering" is undefined and unqualified by the Act, so any degree of mental or physical suffering would suffice for eligibility, and that patients are entitled to refuse even probably effective palliative measures they are unwilling to tolerate. The Act does not preclude EAS for otherwise eligible patients if they are disabled or mentally ill, but EAS cannot be provided for disability, dementia or "mental health impairment" alone [§16(2)].
Capacity
I.5 The patient must be capable of medical decision-making [§16(1)e] and must act voluntarily [§16(1)f] and without "pressure or duress" [§16(1)g], which is defined to include "abuse, coercion, intimidation, threats and undue influence" [Schedule 1]. The Act amended the Crimes Act to make it an offence to induce someone to request or access "voluntary assisted dying" by "dishonesty or pressure or duress" (emphasis added) [Schedule 1A.2]. This is reflected in numerous references to "pressure or duress" in the Act, so it is clear that friends or family members hoping to dissuade someone from euthanasia/assisted suicide cannot be accused of violating the Act by exerting undue pressure or influence.
I.6 For purposes of EAS, a person must understand “information or advice” about decisions required by the Act, remember the information or advice for the purpose of making a decision, understand "matters involved" in a decision, understand the effects of a decision, weigh up the information or advice for the purpose of making a decision, and communicate the decision "in some way" [§6(1)]. The six elements are presumed to be present if it "reasonably appears" that a patient understands an explanation of the consequences of a decision [§6(2)a], so the six elements seem superfluous. All that the Act actually requires is that a patient appears to understand the consequences of a decision. This conclusion is supported by the fact that none of the reports the Act requires of EAS practitioners refer to any of the six elements of
capacity [§30, §41, §52, §62].
I.7 Decision-making capacity is presumed unless it is shown that the patient does not have it [§6(2)b]. Eligible patients must manifest an "enduring" desire for EAS [§16(1)h]. The Act states that a patient who "permanently" loses decision-making capacity becomes ineligible for EAS [§16(3)] and defines "permanently" to mean "forever" [§16(4)]. It is unclear why the definition was required, but the section obviously recognizes that patients may temporarily lose capacity. The Act does not require the EAS process to be re-started if a patient temporarily loses capacity, though this might well involve full or partial loss of understanding, memory and evaluation in relation to decisions made prior to the temporary loss.
Practitioner participants
I.8 The Act authorizes direct participation in EAS by medical practitioners and nurse practitioners. 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.9 Medical practitioners are the principal EAS agents; only they can act as coordinators and consultants [§18]. They must be registered specialists or have at least ten years general practice experience, fulfil EAS training requirements [§18(a),(b)], and not be a family member of the patient nor in a position to benefit from the patient's death [§18(d),(e)].
I.10 While only EAS-trained medical practitioners may act as coordinating and consulting practitioners, euthanasia can be provided by EAS-trained nurse practitioners and by EAS-trained medical practitioners who are registered specialists (including overseas-trained specialists with provisional registration), or who have at least five years' general practice experience [§55]. 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 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.11 The Act addresses conversation with patients about EAS by "health care workers," which, in this provision [§10], includes anyone providing a health service or "professional care services" (anyone contracted to provide assistance, support or supervision in personal hygiene, dressing, meals, mobility, taking medicine, "substantial emotional support" or services or support to persons with disabilities) [§10(5), Schedule 1].
I.12 The heading of the section is "Health care worker not to initiate discussion about voluntary assisted dying," but this is incorrect. If NSW legislators intended to prevent anyone other than medical practitioners from intiating discussion about euthanasia/assisted suicide, that is not the effect of the Act. It appears that NSW legislators muddled the wording of §10 while attempting to modify the comparable provision in Queensland's Voluntary Assisted Dying Act 2021.3 Part of the problem is that the definition of "health care worker" is broad enough to encompass medical practitioners, so any intended distinctions between medical practitioners and health care workers are blurred.
I.13 The Act first states that health care workers (which includes contracted care service workers) must not initiate a conversation about or suggest euthanasia/assisted suicide to a person [§10(1)]. It later states that they may initiate a conversation about or suggest EAS if they also advise the person that palliative care and treatments options are available, and should be discussed with the responsible medical practitioner [§10(3)]. Finally, "to avoid doubt," the Act states that health care workers/contracted care service workers may provide EAS information to someone who asks for it [§10(4)],
but, in responding, they are not required to provide any additional information or suggest discussion with a medical practitioner. Medical practitioners may also suggest or initiate discussion about euthanasia or assisted suicide — but only if they also advise the patient about available palliative care and standard treatment options and the likely outcomes of such alternatives[§10(2)].
I.14 In sum, all health care workers, contracted care service workers and medical practitioners can initiate discussion about or suggest euthanasia/assisted suicide to patients, even if patients have not expressed an interest, as long as they provide other information required by the Act. If a patient asks about EAS, contracted care service workers and health care workers other than medical practitioners can provide EAS information, but need not provide information about available options or suggest that the patient talk to a medical practitioner.
I.15 Note, however, that, while medical practitioners and health care workers/contracted care service workers may suggest euthanasia and assisted suicide or initiate discussion about EAS - even if a patient has not expressed an interest - they are not required to do so.
Request and assessment process
I.16 The EAS process involves three requests by a patient: the first by any means available to the patient [§19], the second in writing and witnessed (a "declaration")[§43], and a final request by any means available to the patient [§48]. A second request/declaration cannot be made unless the patient is first found to be eligible [§43(1)] The final request cannot be made until the day after completion of the consulting assessment [§49(1)b], but can be made five days after the first request [§49(1)a], or earlier if the coordinating and consulting practitioners agree that the patient is likely to lose decision-making capacity or die before EAS is provided [§49(2)].
I.17 The Act explicitly allows the use of audiovisual communication for first and final requests and administration decisions if person-to-person contact is not practicable, but only to the extent that such communication is not contrary to or inconsistent with Australia's national laws [§176]. 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. The national government was resistant to the change,4,5 but was recently defeated in a national election.
I.18 Note that the Act does not explicity prohibit audiovisual communication for EAS assessments. Thus, if Australia's Criminal Code is amended to allow EAS videoconferencing, it appears that professional regulators in New South Wales would be able to permit EAS assessments.
First request
I.19 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 [§19], though an accredited interpreter may be used [§19(4), §23(2)f]. 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.20 Upon concluding that a first request is clear and unambiguous, medical practitioners must accept or reject it and notify the patient accordingly [§21]. They must refuse the request if they are not qualified EAS practitioners or otherwise disqualified [see I.9]. If the practitioner refuses the request for reasons of conscience, the patient must be notified immediately [§21(5)]: otherwise, within two business days [§21(4)]. An EAS qualified medical practitioner who accepts the request becomes the coordinating practitioner, responsible for supervising the EAS request, assessment and administration process [§24].
I.21 Whether or not medical practitioners accept a first request, they must provide the patient with "information approved by the Health Secretary, by Gazette notice," unless they have refused the request for reasons of conscience [§21(4)b]. All medical practitioners must record the first request and decision in the patient's medical record [§22] and report the request and decision to the Voluntary Assisted Dying Board (the Board) [§23].
Coordinator assessment and (First assessment)
I.22 A patient's eligibility must be confirmed by two medical practitioners (coordinating and consulting practitioners), with the assistance of specialists if need be.
I.23 The coordinating practitioner must assess the patient's eligibility for EAS [§25, §29]. If the patient is found to be eligible, the coordinating practitioner must provide the patient with specific information relevant to informed medical decision making [§28(1)a to f], the remaining steps in the EAS process [§28(1)g to i] and patient rights [§28(1)j, k]. A coordinating practitioner who remains unsatsified as to any of the eligibility requirements must find the patient ineligible [§29(2)]. The patient must be informed of the outcome, a written report of the assessment must be submitted to the Board within five business days, and the patient must be given a copy of the report [§30].
Patients deemed eligible must be referred to another medical practitioner for a consulting assessment to confirm eligibility [§31].
Consultant assessment (Second assessment)
I.24 The procedure for consulting assessments is virtually identical to the procedure for first assessments. Medical practitioners must accept or reject a referral for a consulting assessment and notify the patient and coordinating practitioners accordingly [§32]. They must refuse the request if they are not qualified EAS practitioners or otherwise disqualified [see I.9]. If the practitioner refuses the request for reasons of conscience, the patient and coordinating practitioner must be notified immediately [§32(5)]: otherwise, within two business days [§32(4)]. They must record the referral, decision and reason for refusal in the patient's medical record [§33] and report the request and decision to the Board [§34].
I.25 A medical practitioner who accepts the referral becomes the consulting practitioner [§35] and must assess the patient's eligibility [§36], replicating all of the steps taken by the coordinating practitioner [§39-41]. A consulting practitioner who remains unsatisfied as to any of the eligibility requirements must find the patient ineligible [§40(2)].
I.26 If a consulting practitioner finds a patient ineligible, the coordinating practitioner may continue to refer the patient for consulting assessments until a consultant practitioner finds the patient eligible, or the patient dies [§42]. The request and assessment process ends if the coordinating practitioner concludes that the patient is not eligible [§29(2)b], unless the decision is overturned by the Supreme Court of New South Wales (see Judicial Review).
Specialist assessments (optional)
I.27 Coordinating and consultant practitioners may refer patients to specialists to help them reach conclusions about diagnosis, capacity or voluntariness. Coordinating and consultant practitioners may (but need not) adopt specialists' opinions [§26-27, §37-38].
Declaration (Second request)
I.28 Once eligibility is confirmed by coordinating and consulting practitioners, a patient must make a "declaration" - a second request for EAS, in writing - though an adult who is not a witness to the signature and not the coordinating or consulting practitioner may sign on the patient's behalf [§43(4)]. The second request must be witnessed and certified by two adults who are not in a position to benefit from the patient’s death, not a family member of the patient or coordinating or consultant practitioners, nor the coordinating or consulting practitioner [§44-45]. The coordinating practitioner must record the declaration in the patient's medical record [§46] and, within five business days, give notice of the request to the Board [§47]. A patient could make a declaration/second request immediately after being notified of eligibility.
Final request
I.29 After having made a declaration/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 [§48]. If the patient makes a final request, the coordinating practitioner must record it in the patient's medical record [§50] and forward a final request form to the Board within five business days[§51]. A final review of forms and reports must be conducted and a final review form submitted to the Board within five business days [§52].
I.30 A final request cannot be made until the day after completion of the consulting/second assessment, and cannot normally be made within five days of a first request [§49(1)]; the latter requirement can be waived if the coordinating and consulting practitioners agree that the patient may lose decision-making capacity or die before EAS can be provided [§49(2)]. Subject to these considerations, a final request can be made immediately after a declaration/second request, during the same consultation.
Administration decision
I.31 In consultation with a coordinating practitioner, eligible patients can choose euthanasia (practitioner administration of a lethal substance) or assisted suicide (self-administration of a prescribed lethal substance [§57(1)]. An administration decision could be made immediately after making a final request, and during the same consultation. All but a small fraction of patients choose euthanasia in jurisdictions that authorize both euthanasia and assisted suicide,6 and assisted suicide is less reliable than euthanasia,7,8,9,10 so it seems likely that euthanasia will be the norm in New South Wales.
I.32 The patient's choice for either practitioner-administration or self-administration must be“clear and unambiguous,” though expressed in any way available to the patient and with through an interpreter if necessary [§57(2)-(4)]. The decision must be recorded by the coordinating practitioner in the patient’s medical record [§57(5)] and reported to the Board within five business days [§57(6)].
I.33 The patient may revoke an administration decision at any time, verbally, in writing or in some other way. The Act requires that revocation be "clear and unambiguous" and directed to either the coordinating or administering practitioners [§58]. This suggests that a "clear and unambiguous" administration decision would stand if followed by an unclear or ambiguous revocation, even though one would expect that the original decision should be nullified by subsequent ambiguity. Granted: coordinating practitioners may ensure that unclear revocations are reforumlated in unambiguous terms, but patient doubts manifested in an ambiguous (and legally null) revocation could also be overlooked. In any case, patients who revoke administration decisions can make another administration decision at any time [§58(7)].
I.34 Revocations of administration decisions must be recorded in the patient medical record by the coordinating practitioner and a revocation form submitted to the Board within five business days [§58(7)].
I.35 Upon choosing to self-administer a lethal substance, the patient must, in an approved form, appoint an adult contact person [§66] willing to assist with obtaining a prescribed lethal substance, prepare and supply it and return unused parts of it to an authorized disposer [§68]. The contact person must notify the coordinating practitioner if the patient dies [§68(2)]. A coordinating practitioner must have received the required contact person appointment form before prescribing a lethal substance for the patient [§67(5)].
I.36 A patient can revoke a contact person appointment by informing the person [§66(5)] and must then appoint a new contact person [§66(6)]. A contact person may withdraw by notifying the patient, who must then make a new appointment [§69].
Authorisation of lethal prescription
I.37 Once a patient has made an administration decision, the coordinating practitioner must apply to the Voluntary Assisted Dying Board (the Board) for authorisation to prescribe a lethal substance for the patient, whether it is to be practitioner-administered or self-administered [§70]. The Board will have been apprised of the progress of an application at each stage in the process. When it receives the application for authorisation the Board must approve the application and grant authority to prescribe a lethal substance [§71]. Alternatively, if all required documents have not been received, or if the Board "suspects" that the Act's requirements have not been met, it must refuse the authority and notify the coordinating practitioner within two business days [§72].
Prescribing and supplying a lethal substance
I.38 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 [§73(2)]. Similar information and instructions must be provided before prescribing a lethal substance that will be administered by a practitioner [§73(3)].
I.39 The Act states that patients who have opted for self-administration must be advised in writing that they are "not under an obligation to self-administer the substance" [§73(2)e]. No doubt the intention is to advise patients that they can change their mind about proceeding with suicide. However, patients who have opted for assisted suicide may take from the wording of the instruction required by the Act that they can have someone else - a friend, family member, agent or contact person - administer the lethal substance (see I.43).
I.40 Prescriptions for lethal substances must clearly indicate that they are for "a voluntary assisted dying substance" [§74(2)]. They are to be filled by "authorised suppliers": persons or a class of registered health practitioners authorised by the Health Secretary [§74(5), §84].
Administration of lethal substance
I.41 In the case of euthanasia, the administering practitioner must ensure that the patient has decision-making capacity, is acting voluntarily and without pressure or duress, has an enduring desire for euthanasia and must administer the lethal substance in the presence of a witness [§60(6)]. The witness must be an adult, but not a family member nor employed, engaged or under contract to the administering practitioner. The witness must certify that the patient's request for euthanasia appeared to be "free, voluntary and enduring" and the administering practitioner administered the lethal substance in his presence [§63]. The coordinating practitioner and administering practitioner are forbidden to delegate responsiblity for administering a lethal substance to another health professional [§85(2)].
I.42 No one is required to witness self-administration, nor is anyone who does witness it 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.43 By way of an amendment to the NSW Criminal Code the Act makes it an offence for anyone other than an administering practitioner to administer a prescribed lethal substance to a patient [Schedule 1A.2]. However, the Act does not define administration or self-administration, and the definition of "voluntary assisted dying states that it "includes steps reasonably related to the administration" [Schedule 1]. This seems to leave open the possibility that a friend, family member, agent or contact person could put the substance to or into the mouth of a patient who needs help to self-administer it, which, in some circumstances, would be indistinguishable from administering it. The statutory instruction to patients that they are not obliged to self-administer the lethal substance could contribute to this outcome (see
I.39). Should this happen, persons responsible could argue that they were acting "in good faith" to help
the patient "access" EAS in accordance with the Act or reasonably believed it to be in accordance with the Act, thus
securing protection from criminal and civil liability [§130-131].
I.44 If a 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 [§60(6)a]. Presumably, a patient who does not recover capacity will die within 12 months from an underlying terminal neurodegenerative condition or within six months from other causes [§16(1)d].
I.45 Within five business days of becoming aware of the death of a patient approved for EAS, the coordinating or administrating practitioner must notify the Board [§87(1)], unless the administering practitioner has provided the Board with a practitioner administration form [§87(3)]. Other medical practitioners who become aware of a death by EAS are also required to notify the Board within five business days if they must complete a death certificate for the patient [§87(5)].
Classification of death
I.46 Deaths are classified as homicide, suicide, accidental, natural causes or (when it is not certain which of the previous four categories applies) undetermined. Death classification is distinct from the cause of death.
I.47 Homicide means "the killing of one human being by another," which can be justified or excused in some circumstances or punished as murder, manslaughter, etc.11 Suicide is the "act of intentionally killing oneself."12 New South Wales is a common law jurisdiction that assumes the meaning of but does not define these terms in statute law, though it identifies some homicides like murder and manslaughter as "punishable"13 and alludes to taking one's own life in defining "suicide pact."14
I.48 The International Statistical Classification of Diseases and Related Health Problems (ICD) was originally designed "to classify causes of mortality as recorded at the registration of death." It now serves a broader purpose: "to permit systematic recording, analysis, interpretation and comparison of mortality and morbidity data collected in different countries or areas and at different times."15 However, it remains the key international standard for identifying causes of death in death certificates,16 and it is explicity recognized as an authoritative standard for this purpose by the government of Australia.17
I.49 For purpose of statistical coding of external causes of injuries and death, the ICD includes homicide in the category of assault: "injuries inflicted by another person with intent to injure or kill, by any means."18 The point of this arrangement is to identify and distinguish the sources of lethal acts, not to reflect their legal status. For example, the ICD category "assault" would include injuries inflicted in a mixed martial arts competition (cage-fighting), even though such consenual fights may not be considered assaults in law.
I.50 Practitioner-administered euthanasia under the Act is identifiable as "homicidal poisoning" under the ICD19 (though a non-punishable form of homicide in New South Wales). While the intervention is legal in NSW if it conforms to the Act, it is not a death caused by a "legal intervention" within the meaning of the ICD, which explicitly limits legal interventions to actions by the police, military "or other law-enforcing agents" during some kind of law enforcement action20 under some kind of permanent or temporary "ruling authority."21
I.51 Self-administration of a lethal substance under the Act is identifiable as "purposeful self-inflicted poisoning" under the ICD.22 The ICD explicitly states that suicide must not be attributed to any other cause.23
Falsification of death certificates
I.52 The Act does not require the medical practitioners responsible for euthanasia or assisted suicide to complete the death certificate for the patient [§87]; nurse practitioners cannot do so even if they act as administering practitioners.24
I.53 The Act does not mention homicide. Notwithstanding the ICD, the Act declares that someone who dies from ingesting a lethal substance by self-administration or by practitioner-administration under the specified conditions does not die by “suicide”[§12].
I.54 The Act is silent about reporting EAS deaths to the coroner, and the consequential amendments to other statutes do not include the NSW Coroners Act. It appears that the reason for this is that, under the NSW Coroners Act, a death is not reportable if it is the expected outcome of "a health-related procedure", which includes the administration of a drug.25
I.55 Medical practitioners required to provide a death certificate for a patient whom they believe has died by EAS are required to include that information in the certificate [§87(6)a] but are also required to "identify" the cause of death as "the disease, illness or medical condition" that made the person eligible for EAS [§87(7)b]. Here the wording of the Act is somewhat coy; it says only that practitioners must "identify" the underlying condition. However, this can only be 'identified' in NSW death certificates by explicitly attributing the cause of death to the underlying condition.26
I.56 The Act defines "voluntary assisted dying" only as "the administration of a voluntary assisted dying substance" and reasonably related steps [Schedule 1]. However, it elsewhere defines "voluntary assisted dying substance" (VAD substance) as "a poison" to be used "for the purpose of causing a patient's death" [§7]. VAD substances are prescribed for that purpose [§28(1)d] and must be "of a sufficient dose to cause death" [§59(2), §60(2)]. Eligible patients must be advised that death is the expected outcome of being administered a VAD substance [§28(1)e] and how long that is expected to take [§73(2)i].
I.57 It is thus clear that the Act requires falsification of the cause of death by medical practitioners and by the Registrar of Births, Marriages and Deaths [Schedule 1A.1(1)], and it requires the Registrar to conceal the actual cause of death in EAS cases when issuing death certificates [Schedule 1A.1(2)]. Falsification of death certificates is contrary to international standards for identifying causes of death that are acknowledged by the Australian government.27 The contradiction becomes apparent if one compares death by lethal injection administered by legally authorized practitioners (EAS-trained medical and nurse practitioners) and death by 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, classified as a natural death caused by the underlying illness, if the injection were given by an EAS trained nurse practitioner in accordance with the Act [§60(6)];
b) a reportable death classified 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 [Schedule 1A.2, 41B].
I.58 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 1998.28 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.”29
Voluntary assisted dying care navigator service (VADCNS)
I.59 The government plans to approve a service “to provide support, assistance and information” about euthanasia and assisted suicide [§179]. 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.
I.60 "Residential facilities" are nursing homes, hostels or other facilities where "accommodation, nursing or personal care is provided to persons on a residential basis who, because of infirmity, illness, disease, incapacity or disability, have a need for nursing or personal care." The term includes "residential aged care facilities" [Schedule 1]. The key point is that residential facilities, as defined in the Act, provide "residential aged care": nursing or personal care that includes accommodation, staff, meals, cleaning services and furnishings and equipment [§88].
I.61 "Health care establishments" include public hospitals and any private health facility to which anyone "is admitted, provided with medical, surgical or other prescribed treatment and then discharged" or which provides anyone with "services or treatments" prescribed by regulation [§88].30 Health care establishments provide "health care", which is defined as "medical, surgical or nursing care" [§88].
I.62 An "entity" is a person (presumably individual or corporate) and an unincorporated body [Schedule 1]. "Health entities" own or operate "health care establishments." The term "relevant entities" excludes individuals; relevant entities provide "relevant services" - "personal care service" or "residential aged care service." [§88]
I.63 Hence, the Act effectively divides institutions into two categories: "residential facilities" like nursing homes, hostels, group homes, etc. operated by "relevant entities" (excluding individuals) [Part 5, Division 2] and "health care establishments" like hospitals or hospices operated by "health care entities" (including individuals) [Part 5, Division 3]. In this review (not in the Act), "governing entity" refers to the entity operating a facility, whether a health care or relevant entity.
I.64 The reason for this division is that the legal occupancy status of persons in residential facilities is different from that of persons in health care establishments, and this is suggestive of the obligations imposed by the Act upon governing entities.
Institutional freedom
I.65 The Act states that residential facilities and health care establishments may decide that they will not provide EAS related services [§89(1)],and it implies that they may refuse to provide even information about EAS [§90,§99]. In particular, they may refuse to participate in any stage of the EAS process, store a VAD substance or be present at euthanasia or assisted suicide, and may also refuse to allow anyone to be employed "by or at the facility or establishment" to participate in such activities [§89(2)]. However, this acknowledged freedom to refuse is merely an exercise of institutional autonomy. The Act does not recognize institutional freedom of conscience.
Institutional obligations
Notice
I.66 Governing entities operating residential care facilities or health care establishments where EAS related services are not provided must publish notice of the fact in order to make people receiving or seeking services at those facilities aware of it [§98, §107].
I.67 If a patient in a residential facility or health care establishment asks the governing entity (i.e., facility staff or an institutional representative) for information about EAS services and the information is not provided by the entity, the entity must not hinder the patient from accessing information. It must allow someone or a member or employee of the official navigator service “reasonable access” to the person in the facility or establishment to provide the information [§90,§99].
Access to EAS services
I.68 A person receiving services at a residential facility or health care establishment that does not provide euthanasia or assisted suicide can advise the governing entity (i.e., facility staff or an institutional representative) that he wishes to request EAS [§92(1), §101(1)]. When this occurs, the Act imposes obligations on governing entities related to the request and assessment process.
I.69 Non-participating health care establishments: Governing entities “must take reasonable steps to facilitate" patient transfers to and from a place where the EAS process can take place. This includes all requests [§101(2)] assessments [§102(2),§103(2)], declarations [§104(2)], administration decisions [§105(2)] and actual provision of euthanasia/assisted suicide [§106(2)]. However, the Act requires governing entities to consider whether or not a transfer would likely 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”, and whether the transfer location can receive the person. Possible financial loss or costs incurred by the candidate must also be considered [§102(3), §103(3),
§104(3) §105(3), §106(3)]. Transfer decisions are the sole responsiblity of the governing entity, but these provisions in the Act enables them to be legally challenged.
I.70 Non-participating residential facilities: The Act distinguishes between requests (first and final) and all other steps in the EAS process in residential facilities, presumably because the first and final requests require only a conversation between an institutional occupant and EAS practitioner and nothing more.
a) In the case of first and final requests, governing entities of non-participating residential facilities must allow medical practitioners eligible to accept and act upon EAS requests “reasonable access” to all institutional occupants, regardless of their legal occupancy status [§92(2)]. If the requested medical practitioner is unable to attend, the governing entity “must take reasonable steps to facilitate the transfer of the occupant to and from a place” where the requests may be accepted [§92(3)].
b) All permanent residents must be allowed to have EAS assessments, make declarations and administration decisions and have euthanasia/assisted suicide provided in the facilities [§93(2)a, §94(2)a, §95(2)a, §96(2)a, §97(2)a], unless EAS practitioners are unable to attend. In that case, the entities “must take reasonable steps to facilitate" patient transfers to and from locations where the services can be provided [§93(2)b, §94(2)b,
§95(2)b, §96(2)b, §97(2)b].
c) In the case of institutional occupants who are not permanent residents, the governing entity “must take reasonable steps to facilitate the transfer of the person to and from a place” where the services can be provided [§93(3)a, §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 provide the services at the facility [§93(3)b, §94(3)b, §95(3)b, §96(3)b,
§97(3)b]. Decisions about the reasonableness of transfers cannot be made by governing entities; they must be made solely by the coordinating
practitioner or by a medical practitioner nominated by the patient [§88].
Oversight
I.71 The operation of the Act is to be overseen by a Voluntary Assisted Dying Board consisting of five paid members jointly appointed by the Minister of Health and the Attorney General Ambulance Services for a term of not more than three years. A member must have "knowledge, skills or experience relevant to the Board's functions." At least two members must be medical practitioners [§143, §149].
I.72 The Board is to monitor the operation of the Act and maintain a list of registered health practitioners willing to be involved in EAS servcies. The Board is to provide advice, information and recommendations to the government, record at least 17 kinds of statistical information, conduct analyses and research, rule on requests for residency exemptions, and give prior approval for the provision of EAS in each case. It may refer information to a number of state authorities, including the Commissioner of Police, Registrar of Births, Deaths and Marriages, the State Coroner, Health Secretary, Australian Health Practitioner Regulation Agency and the Commissioner appointed under the Health Care Complaints Act. It must report annually on its operations. [§136, §170,
§173 ].
Judicial review of practitioner decisions
I.73 The New South Wales Supreme Court is empowered to review and overturn decisions about residency, decision-making capacity, voluntariness and pressure or duress (not diagnosis or prognosis) by coordinating and consulting practitioners [§109]. An appeal to the Court 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 [§108].
I.74 If the Court decides the patient does not satisfy the conditions of residency, capacity or voluntariness, or is acting under pressure or duress, the patient is ineligible for EAS and the service may not be provided; otherwise, the EAS process will resume [§113-115]. A review decision can be appealed to the Supreme Court and dealt with as a new hearing of the case [§109(2)].
I.75 Coordinating practitioners may refuse to continue in their roles if the Supreme Court overturns their decision that a patient is ineligible for EAS on grounds of capacity, voluntariness, pressure or duress, but must then transfer the patient to someone eligible and willing to act as coordinating practitioner. [§116, §175].
Statutory principles
I.76 The Act identifies eleven principles underpinning the statute [§4]:
(a) human life has equal value;
(b) a person’s autonomy, including autonomy in relation to end of life choices, should be respected;
(c) a person has the right to be supported in making informed decisions about the person’s medical treatment and should be given, in a way the person understands, information about medical treatment options, including comfort and palliative care and treatment;
(d) a person approaching the end of life should be provided with high quality care and treatment, including palliative care and treatment, to minimise the person’s suffering and maximise the person’s quality of life
(e) a therapeutic relationship between a person and the person’s health practitioner should, wherever possible, be supported and maintained,
(f) a person should be encouraged to openly discuss death and dying, and the person’s preferences and values regarding the person’s care, treatment and end of life should be encouraged and promoted,
(g) a person should be supported in conversations with the person’s health practitioners, family, carers and community about care and treatment preferences,
(h) a person is entitled to genuine choices about the person’s care, treatment and end of life, irrespective of where the person lives in New South Wales and having regard to the person’s culture and language,
(i) a person who is a regional resident is entitled to the same level of access to voluntary assisted dying and high quality care and treatment, including palliative care and treatment, as a person who lives in a metropolitan region,
(j) there is a need to protect persons who may be subject to pressure or duress,
(k) all persons, including health practitioners, have the right to be shown respect for their culture, religion, beliefs, values and personal characteristics.
I.77 The principles can be grouped into four cateories.
-
Six (a, c, d, e, h and j) are commonplaces that can be accepted by anyone, regardless of views about euthanasia and assisted suicide.
-
Three (b, g, k) are ambivalent because interpretation depends upon how "respect" is understood.
-
One (f) is contestable because it
can be understood to mean that a choice in favour of euthanasia/assisted suicide or some other morally contested option (like suicide by starvation and dehydration) should be "encouraged and promoted." This would be an unacceptable imposition on anyone opposed to a "preference" in principle or in a particular case.
-
One
(i) is unacceptable because it requires agreement that everyone should be able to have access to euthanasia and assisted suicide. Those opposed to the procedures in principle could not agree to this, and those who may be opposed in particular cases could give only qualified agreement.
The illusion of neutrality
"Rights balancing"
I.78 The six commonplace principles are irrelevant to conflicts of conscience in relation to supporting or participating in euthanasia/assisted suicide. The remaining five may be relevant but are subject to morally partisan interpretations. Since the Act seems to give equal weight to all of the principles, an adjudicator can impose subjective and contested views about the meaning and importance of each principle during an ostensibly neutral “rights balancing” analysis. For example, a belief that euthanasia or assisted suicide is immoral (in prinicple or in particular cases) could be overridden because an adjudicator believes that patient autonomy or culture deserves more respect, or that the beliefs of practitioners or collectives are less important than access to euthanasia and assisted suicide. An adjudicator with different underlying beliefs about belief, autonomy, and freedom could be expected to reach different conclusions.
I.79 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.80 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 New South Wales law largely reflects Queensland's Voluntary Assisted Dying Act 2021. Queensland's Law Reform Commission ("the Commission") recognized both issues.31 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.32
I.81 However, New South Wales' Act, like Queensland's law, simply assumes that euthanasia and assisted suicide are morally acceptable forms of healthcare and demands that they be characterized as death by natural causes rather than homicide or suicide [I.53-I.57]. 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.33 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).34
Summary
I.82 People seeking euthanasia/assisted suicide (EAS) must be adults with an advanced, progressive disease or medical condition that is causing suffering (of any degree or kind) and that is expected to cause death within 12 months (in the case of neurodegenerative conditions) or within 6 months in all other cases. They must be acting voluntarily, without pressure or duress, and be capable of making and communicating medical decisions. They can be mentally impaired or have dementia or a disability, but EAS cannot be provided for mental impairment, dementia or disability alone. Decision-making capacity is presumed in the absence of evidence to the contrary if a patient appears to understand the consequences of a decision. The Act acknowledges that capacity can be temporarily or permanently lost. It imposes residency requirements that can be waived for compassionate reasons.
I.83 Only EAS-trained medical practitioners with least ten years general practice experience or specialist credentials can act as EAS coordinators and consultants. Other EAS trained medical practitioners and and nurse practitioners may administer euthanasia.
I.84 It appears that NSW legislators muddled the wording of the provision about discussions with patients while attempting to modify the comparable provision in Queensland's Voluntary Assisted Dying Act 2021. All health care workers, contracted care service workers and medical practitioners can initiate discussion about or suggest euthanasia/assisted suicide to patients, even if patients have not expressed an interest, as long as they provide other information required by the Act. If a patient asks about EAS, contracted care service workers and health care workers other than medical practitioners can provide EAS information, but need not provide information about available options or suggest that the patient talk to a medical practitioner. However, none are required to suggest or initiate discussion about EAS.
I.85 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.86 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.87 A patient deemed eligible by two medical practitioners and who wishes to proceed must make a second EAS request, a written declaration 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 less reliable than euthanasia, and experience elsewhere demonstrates that very few choose assisted suicide when both euthanasia and assisted suicide are available.
I.88 The second request, final request, and administration decision could all occur during the same consultation, although a final request cannot be made until the day after the completion of the second (consulting) assessment, and cannot normally be made within five days of a first request; the latter requirement can be waived if the patient may lose capacity or die before EAS can be provided. Subject to Australian national laws, the Act explicitly allows the use of audiovisual communication for first and final requests and administration decisions. The Act does not explicity prohibit audiovisual communication for EAS assessments. Australia's Criminal Code currently prevents this. Should the Code be amended to allow it, videoconferencing for first and final requests and administration decisions would immediately be allowed, and it appears that professional regulators in New South Wales would be able to permit
videoconferencing for EAS assessements.
I.89 Coordinating practitioners must be authorised by the Voluntary Assisted Dying Board (the Board) to prescribe a lethal substance for each patient, whether it is to be practioner-administered or self administered. 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.90 The wording of the Act seems to leave open the possibility that a friend, family member, agent or contact person could put the substance to or into the mouth of a patient who needs help to self-administer it, which, in some circumstances, would be indistinguishable from administering it. A required statutory instruction to patients that they are not obliged to self-administer the lethal substance could contribute to this outcome.
I.91 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. 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.92 The New South Wales 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.93 Institutions are categorized as "residential facilities" like nursing homes, hostels, group homes, etc. operated by "relevant entities" (excluding individuals) and "health care establishments" like hospitals or hospices operated by "health care entities" (including individuals). They may decide not to provide EAS related services and information.
I.94 The Act imposes obligations on residential facilities and health care establishments if a person in their care requests EAS information or services that they do not provide. They must allow a VADCNS employee or someone else “reasonable access” to anyone in their to provide the information. Generally speaking, governing entities are expected to facilitate the transfer of patients in health care establishments to and from a location where EAS services can be provided. On the other hand, they are expected to allow all EAS services in residential facilities for all permanent residents, and for all occupants who are not permanent residents if an EAS practitioner decides that transferring them "would not be reasonable in the circumstances."
I.95 The operation of the Act is to be overseen by an appointed Voluntary Assisted Dying Review Board. It must approve each EAS application and residency exemption, maintain a list of registered health practitioners willing to be involved in EAS services and monitor the and report annually upon operation of the Act. The Supreme Court of New South Wales is empowered to review and overturn decisions about residency, capacity, and voluntariness (not diagnosis or prognosis). Coordinating practitioners may refuse to continue if the Court 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.96 The Act identifies eleven principles underpinning the statute and seems to give equal weight to all of them. Six are irrelevant to conflicts of conscience in relation to supporting or participating in euthanasia/assisted suicide and five are subject to morally partisan interpretations. 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.97 The provision of euthanasia or assisted suicide under the Act is not considered palliative care, which is clearly distinguished as an alternative option. 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. However, the Act 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 2022 (NSW).
2. Alex Greenwich, "Voluntary Assisted Dying" (25 March 2021), Alex Greenwich (blog).
3. Voluntary Assisted Dying Act 2021 (Qsld) s 7.
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. Australia, Queensland Law Reform Commission, A legal framework for voluntary assisted dying (Brisbane: QLRC, May 2021) (Peter Applegarth) [QLRC 2021] at Table 10.1.
7. 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.
8. 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.
9. 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.
10. 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.
11. The Editors of Encyclopaedia Britannica, "homicide" in Enclyopedia Britannica (26 May 2022), Britannica (website).
12. The Shorter Oxford English Dictionary, 6th ed, sub verbo "suicide".
13. Crimes Act 1900 No. 40 (NSW) s 18(1)b.
14. Ibid, s 31B(2).
15. World Health Organization, International Statistical Classification of Diseases and Related Health Problems: 10th Revision, 5th ed, vol 2 (Geneva, Switzerland: 2016) [ICD 2016] at 2.1.
16. Ibid at 4.1.1
17. Australian Institute of Health and Welfare, "How are causes of death coded?" (6 June, 2021) Government of Australia (website).
18. World Health Organization, International Statistical Classification of Diseases and Related Health Problems: 10th Revision, 5th ed, vol 1 (Geneva, Switzerland: 2019) [ICD 2019] at X85-Y09.
19. Ibid at X85.
20. Ibid at XY35.
21. Ibid at Y35.5.
22. Ibid at X60-X84.
23. ICD 2016, supra note 15 at 4.2.3B(m).
24. Births, Deaths and Marriages Registration Act 1995 (NSW) s 39.
25. Coroners Act 2009 No. 41 (NSW) s 6.
26. In "Part III: Cause of Death." NSW Dept. of Justice, Registry of Births, Marriages and Deaths, "Medical Certificate of Cause of Death" (Undated), Government of NSW (website).
27. ICD 2016, supra note 15 at 4.1.2.
28. United Kingdom, The Shipman Inquiry, First Report: Death Disguised (London: HMSO, 19 July 2002) vol 1 (Dame Janet Smith) at para 14.2.
29. United Kingdom, The Shipman Inquiry, Third Report. Death Certification and Investigation of Deaths by Coroners (London: HMSO, 14 July 2003) (Dame Janet Smith) at 5.39—5.40.
30. Private Health Facilities Act 2007 No. 9 (NSW) s 4, 33A.
31. QLRC 2021, supra note 6 at para 420, n 2-3.
32. Ibid at para 15.218.
33. 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).
34. Rene Leiva et al, "Euthanasia in Canada: a Cautionary Tale" (2018) World Med J 64(3)17 at 19.