New South Wales' Voluntary Assisted Dying Act (2022) No. 17
Impact on freedom of conscience for health care practitioners and institutions
Full Text
Introduction
II.1 Part I assumed the willing participation of health care practitioners and facilities with the provisions of the Act. We now consider provisions of the Act that have an impact on individuals who, for reasons of conscience, are unwilling to participate in euthanasia and assisted suicide or comply with other requirements of the law.
II.2 It is important to recognize that, with respect to EAS, the health care professions are not divided into sharply defined groups of objecting and non-objecting practitioners. An undetermined number may object absolutely to the procedures for reasons of conscience, but the position of many practitioners is more fluid, depending upon the nature of the illness or condition said to justify EAS. Their support or opposition is also likely to reflect their opinions about a patient’s decision-making capacity, voluntary consent, or other issues they consider relevant in certain cases or certain kinds of cases. This is one reason why a policy of registering conscientious objectors is unfair and ill-advised, and why Part II considers the relevance of the Act’s provisions about eligibility, capacity, discussion with patients, etc. - not just provisions specific to conscientious objection.
Eligibility
II.3 In general, the broader the grounds for euthanasia and assisted suicide, the more likely it is that conflicts of conscience will arise among health care practitioners. Those willing to provide euthanasia or assisted suicide for terminally ill patients may be much less willing to end the lives of people with chronic illness, and many more would be inclined to resist calls to kill or assist in the suicide of physically or cognitively disabled patients. By restricting eligibility for EAS to competent adults with terminal illnesses or conditions, and by explicitly ruling out EAS for mental health impairment, dementia and disability, the Act reduces the number of practitioners likely to experience conflicts of conscience when it comes into force.
Capacity assessments
II.4 Practitioners not opposed to euthanasia and assisted suicide in principle may object to providing the services for patients whose decision-making capacity is questionable. Two factors relevant to assessing decision-making capacity are of particular interest: limited capacity and fluctuating capacity.
Limited capacity
II.5 Queensland's Voluntary Assisted Dying Act explicitly acknowledges that a person may be capable of making some decisions but not others.35 This is not acknowledged in the New South Wales law, but the absence of statutory recognition does not prevent practitioners from taking this into account in assessing patient capacity. Applying this to euthanasia and assisted suicide introduces a problem apparently unrecognized by Queensland and Canadian legislators and by the Canadian judges who ordered the legalization of the procedures in the case of Carter v Canada (Attorney General).36
II.6 The ability of practitioners to perform capacity assessments for euthanasia and assisted suicide is disputed. On the one hand, it is argued that assessing patient competence for these procedures requires expertise that is not necessarily possessed by the majority of physicians.37 On the other, the plaintiffs convinced the Carter trial court judge (and ultimately the Supreme Court of Canada) that obtaining informed consent for assisted suicide and euthanasia is no more difficult than obtaining informed consent for customary medical treatment.38 It is instructive to set side by side the evidence accepted on this point by the trial court judge in Carter and comments about capacity later made by an objecting physician (Physician D):
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Madam Justice Lynn Smith
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Physician D
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Dr. Ganzini, a geriatric psychiatrist and Professor of psychiatry and medicine. . . cites the decision whether to undergo a neurosurgical procedure as an example of a cognitively demanding one, since the risks, benefits, and various trade-offs between short-term and long-term gains can be very complex and challenging to understand.
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The decision to have medical aid in dying requires significant “meta” thought and reflection. It is more complex than even a decision about level of care, antibiotic treatment for pneumonia, or blood pressure pills. It is even at a different level than the choice to take chemotherapy or not.
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In contrast, she says,the risks and benefits of a lethal prescription are straightforward and not cognitively complex. The risk is that the prescription might not work; the benefit is that the patient’s life will end at a time of her choosing (emphasis added).39
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All of our patients are vulnerable, many of them have concomitant psychiatric disorders, and almost all of them are demoralized to a certain extent that is normal in the context of a life-threatening illness. These issues make the determination of competence very difficult because of the gravity of deciding to end one’s own life(emphasis added).40
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II.7 The italicized passages demonstrate that a life-or-death decision has, for Physician D, a completely different significance than it has for Dr. Ganzini. The risk perceived by Physician D is that the patient might die. The risk perceived by Dr. Ganzini is that the patient might live (at least, for a time). Here we see that different underlying philosophical or ethical views about life and life-ending acts can significantly affect one’s views about the existence and nature of risk. The problem of a priori inescapable biases in favour of an outcome is intrinsic to capacity assessments and cannot be avoided in euthanasia and assisted suicide.
II.8 According to a knowledgeable and experienced physician, each capacity assessment must be made within the context of the kind of decision-making contemplated. It is also influenced by the risks involved in the decision, life-or-death consequences calling for the highest level of capacity.41 A cognitively impaired patient may be considered competent to decide whether to take an aspirin for a headache, but not to make a decision about neurosurgery because of an inability to understand a complex procedure and evaluate its potential consequences.
II.9 In Dr. Ganzini’s opinion, the only thing the patient needs to understand is that a lethal injection will end her suffering by causing her death, and that, if it fails, a second dose may be required. On this view, it is possible that patients might be deemed capable of choosing to die by lethal injection even if they would be considered incapable of making challenging medical decisions about alternative treatments and palliative care. Closely related to this, the burden of illness may make it easier to understand the euthanasia/assisted suicide process than to understand alternative treatment options, inclining a patient to choose what is more easily understood than what may offer satisfactory relief. In either situation, practitioners otherwise willing to provide euthanasia/assisted suicide may be unwilling to do so, even if colleagues deem the patient legally capable of making the decision.
Fluctuating capacity
II.10 In its careful articulation of the effect of a "permanent" loss of capacity on eligibility for EAS the Act implicitly recognizes that capacity may be temporarily lost and regained [§16(3),(4)]. This issue was considered by the Supreme Court of Canada in relation to approving euthanasia for patients suffering from clinical depression (major depressive disorder). The Court accepted the plaintiffs’ argument that depression undermining capacity should be treated, and, if the patient recovers sufficient capacity (even temporarily), his decision for EAS should be accepted.
Sheila M. Tucker: The evidence . . . was that you can have major depressive disorder and still be competent as a medical decision maker. What the further question was, if you are to make the further judgement about whether or not, even though you are competent, the major depressive disorder is influencing your decision about wanting to end your life, that that’s a very fine judgement. And so, the recommended answer to her from the witness, and which she agreed with, was, it’s too fine of a judgement. Simply exclude people who are actively suffering from major depressive disorder.
Justice R.S. Abella: Even if it results from the very suffering that is what you want to be able to alleviate by the decision to end your life.
Sheila M. Tucker: Yes, because you cannot rely on their decision. . . But that’s a very high threshold . . . of major depressive disorder, because she also said, it’s expressed in the context of active suffering. She said such people should be treated . . . for major depressive disorder, and if they could recover enough to reliably make a decision — they weren’t actively suffering from it to the same degree — then they should be allowed to make the decision (emphasis added).42
II.11 Even medical practitioners willing to facilitate euthanasia for clear-headed patients may not be confident that they can safely act upon a request made when the clouds of major depressive disorder part for a time, or if the patient recovers what another colleague considers "enough" capacity to make a valid request.
Disagreements about eligibility
II.12 The Supreme Court of New South Wales can overturn decisions by coordinating and consulting practitioners about residency, capacity and voluntariness. A coordinating practitioner whose decision about eligibility is overturned by the Court can refuse to continue in the role. If he withdraws, he must transfer the patient file to the consulting practitioner (if there is one) or to someone who can act as a coordinating practitioner. It is highly unlikely that such situations would involve practitioners absolutely opposed to euthanasia/assisted suicide because one would expect them to refuse to accept a first request (see II.17-19).
II.13 It is possible that a practitioner willing to consider EAS might accept a request but assess the patient as ineligible because of doubt (rather than conviction) about voluntariness or capacity. In such a case, reversal by the Court might be accepted by the practitioner as resolving the doubt, allowing him to proceed.
II.14 Only if a practitioner were certain that the patient lacked capacity or was not acting freely would reversal by the Court cause a conflict of conscience. The provision permitting the practitioner to withdraw recognizes and resolves this problem [§116(1)]. However, the Act also requires the withdrawing practitioner to transfer the patient to a colleague who can proceed with the EAS process [§116(2)]. Indeed, if the Court reverses a practitioner's settled conclusion about capacity or voluntariness, the Act requires the practitioner to continue as if he had actually confirmed the patient's eligibility [cf §116(2), §175(1)]. This certainly implies that the onus is on the withdrawing practitioner to find someone willing to kill or assist in the suicide of a patient, nothwithstanding a conviction that the patient lacks capacity or is acting involuntarily. A practitioner may find this requirement unacceptable, and it is completely unnecessary.
II.15 The Voluntary Assisted Dying Board will be a powerful and well-connected state instrument with a list of willing EAS practitioners. The Act should be amended to require the Court to direct the Voluntary Assisted Dying Board to find a new coordinating practitioner should the coordinating practitioner withdraw in these circumstances. The new practitioner could then request the transfer of the patient from the original practitioner in the customary way. In the Project’s experience, objecting physicians are typically willing to cooperate in patient-initiated transfers in such situations, but not to initiate the transfers themselves.
Discussion with patients
II.16 We have seen that 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 [I.11-I.14]. What is significant within the context of freedom of conscience is that they are not required to do so. Many health care workers — not just those opposed to EAS — are unwilling to introduce the subject absent some expression of interest by the patient. Their approach reflects concern that a patient who would not normally consider EAS might be induced to ask for it if a health care worker gratuitously initiates discussion. By explicitly making discussion optional the Act supports both health care workers who want to initiate discussion about EAS and those who think it best to let patients take the lead, responding to their enquiries or apparent interests.
Objecting registered health practitioners
II.17 Subsection 9(1) of the Act states that registered health practitioners who object to euthanasia/assisted suicide for reasons of conscience may refuse to
- "participate in the [EAS] request and assessment process"
- "prescribe, supply or administer" a lethal substance
- "be present" when a lethal substance is administered
II.18 Subsection 9(2) adds what is purported to be a clarification: that subsection 9(1) "does not limit the circumstances in which a registered health practitioner may refuse to do any of the things" identified.
However, the vague reference to "circumstances" is not at all equivalent to a statement that a practitioner cannot be obliged to indirectly participate (by referral, for example) or support or assist in euthanasia or assisted suicide. This kind of ambivalent wording is often the outome of struggles between those demanding referral or some other kind of positive support for morally contested procedures and those resisting such demands. When neither group can obtain the wording it actually wants, they may settle on an ambiguous formula that each will try to apply in practice to achieve their desired outcome (i.e., suppression or protection of practitioner freedom of conscience).
II.19 In any case, the Act states that practitioners may refuse to accept a first request [§21(2)a] or a referral for a consulting assessment [§31(2)a] and must immediately inform the patient or the coordinating practitioner, as the case may be [§21(5), §31(5)]. They must also record the refusal and the reason for it in the patient's medical record [§22,§33] and report the refusal and reason for it to the Board [§23,§34]. They are not obliged to do anything else, so the starting point for objecting practitioners pressured by regulators or others to do more should be that the Act not only does not require it, but (interpreting §9 in a fully protective sense) affirms that they need not do so. Note that objecting practitioners who refuse to do something (such as referral) are protected from disciplinary action by regulators if they act in good faith and reasonably believe that the refusal is in accordance with the Act [§131(3)-(4)]. Subsection 9(2) can be cited in support of good faith and reasonable belief by practitioners unwilling to refer patients or otherwise facilitate euthanasia/assisted suicide by means other than those specified in subsection 9(1).
II.20 The likelihood of conflicts of conscience is reduced by the provision that forbids coordinating and administering practitioners to delegate responsibility for administering a lethal substance to another health professional [§85(2)].
Other objecting care workers
II.21 The protection for individual freedom of conscience offered by the Act is limited to registered health care practitioners. No protection is provided for the many people involved in the provision of health care, personal care and aged care who are not registered health practitioners, even though the Act explicitly recognizes their work [§10]. For example, nothing in the Act prevents employers from requiring a personal care worker or social worker to actively support the provision of EAS or to be present when lethal medication is administered.
Falsification of death certificates
II.22 New South Wales legislators apparently believe that legal euthanasia and assisted suicide are beneficial forms of medical treatment. However, beneficial medical treatments do not require a bureaucracy of medical deception. Deception increases the likelihood of conflict and controversy. Indeed, some EAS supporters may worry that mandating deceptive practices is counterproductive.
II.23 Medical practitioners not responsible for euthanasia and assisted suicide deaths and who object to the procedures for reasons of conscience are likely to object to falsifying the cause of death in death certificates; so, too, may physicians who support but do not act as EAS practitioners. They may be uncomfortable lying or dissembling to families about how their loved ones died, which would seem to be unavoidably associated with falsifying causes of death. Some may be concerned that falsifying records and lying to families is likely to undermine the trust essential to the practice of medicine. Others may have principled objections to falsifying documents, lying, dissembling and other forms of deception under any circumstances. Finally, some may consider falsification ill-advised because it is likely to compromise important epidemiological data. EAS practitioners may share these concerns.
II.24 If the state insists that death certificates must be falsified, unwilling practitioners should not be compelled to participate in or support what they consider to be deceptive, unethical or professionally ill-advised practices. Since all EAS deaths must be reported to the Voluntary Assisted Dying Review Board [§87(1)-(3)], the Act should be amended to make a medical member of the Board responsible for completing EAS death certificates (assuming that a Board member’s objection to doing so would also be accommodated).
Summary
II.25 The health care professions are not divided into sharply defined groups of objecting and non-objecting practitioners. The position of many practitioners depends upon the nature of the illness or condition, opinions about decision-making capacity, voluntariness, or other issues they consider relevant.
II.26 The broader the grounds for euthanasia and assisted suicide, the more likely it is that conflicts of conscience will arise. By restricting eligibility to competent adults with terminal illnesses or conditions, and by explicitly ruling out EAS for disability, dementia or "mental health impairment" alone, the Act reduces the number of practitioners likely to experience conflicts of conscience when it comes into force.
II.27 The ability of practitioners to perform capacity assessments for euthanasia and assisted suicide is disputed, and assessment of limited, fluctuating and episodic capacity can be particularly troublesome. Patients could be deemed capable of choosing euthanasia/assisted suicide even if they are considered incapable of challenging medical decisions about alternative treatments and palliative care. The burden of illness may make it easier to understand the EAS process than alternative treatment options, and to choose what is more easily understood rather than what might offer significant symptom relief. Even practitioners willing to facilitate euthanasia for clear-headed patients may not be confident that they can safely act upon a request made when the clouds of major depressive disorder part for a time, or if the patient recovers what another colleague considers "enough" capacity to make a valid request.
II.28 Risk assessments by EAS supporters, uncommitted practitioners and EAS opponents may reflect significantly different views about life-or-death decisions based on different underlying philosophical or ethical views. A priori biases in favour of an outcome cannot be avoided in EAS assessments.
II.29 The New South Wales Supreme Court can overturn a coordinating practitioner's conclusion that a patient is ineligible for EAS because of involuntariness or lack capacity. This can cause a problem for practitioners who are certain of their conclusion because, though they can withdraw, the Act requires them to transfer the patient to a colleague willing to continue the EAS process. They may well consider this unacceptable, and it is completely unnecessary. The Act should be amended to require the Voluntary Assisted Dying Board to find a new coordinating practitioner should the coordinating practitioner withdraw in these circumstances.
II.30 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, but they are not required to do so. By explicitly making discussion optional, the Act supports both practitioners who want to initiate discussion about EAS and those who think it best to let patients take the lead, responding to their enquiries or apparent interests.
II.31 All registered health practitioners who conscientiously object to EAS may refuse to participate in any part of the EAS process and refuse to be present when EAS is provided. The wording of the relevant provision is ambivalent, but the Act does not require objecting practitioners to do anything other than record the refusal and the reason for it in the patient's medical record and report the refusal and reason for it to the Voluntary Assisted Dying Board. Further, objecting practitioners who refuse to do something (such as referral) are protected from disciplinary action by regulators if they act in good faith and reasonably believe that the refusal is in accordance with the Act. Hence, the starting point for objecting practitioners pressured by regulators or others to do more should be that the Act not only does not require it, but (interpreting the ambivalent provision in a fully protective sense) affirms that they
need not do so.
II.32 The protection for individual freedom of conscience offered by the Act is limited to registered health care practitioners. No protection is provided for the many people involved in the provision of health care, personal care and aged care who are not registered health practitioners, even though the Act explicitly recognizes their work. For example, nothing in the Act prevents employers from requiring a personal care worker or social worker to actively support the provision of EAS or to be present when lethal medication is administered.
II.33 Regardless of their views about euthanasia and assisted suicide, some medical practitioners are likely to object to falsifying the cause of death in death certificates. They may be uncomfortable about lying or dissembling to families about how their loved ones died or concerned that falsifying records and lying is likely to undermine the trust essential to the practice of medicine. Others may have principled objections to falsifying documents, lying, dissembling and other forms of deception under any circumstances. Finally, some may consider falsification ill-advised because it is likely to compromise important epidemiological data. If the state insists that death certificates must be falsified, the Act should be amended to make a medical member of the Voluntary Assisted Dying Review Board responsible for completing EAS death certificates (assuming that a Board member’s objection to doing so would also be accommodated).
NOTES
35. Voluntary Assisted Dying Act 2022 (Qld) s 11(3).
36. Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331.
37. Carter v. Canada (Attorney General), 2012 BCSC 886 (CanLII) [Carter 2012] at para 770–774.
38. Ibid at para 831.
39. Ibid at para 775.
40. Response of Physician D to Administrator, Protection of Conscience Project ( 9 September, 2016) (emphasis added). The response was an anecdotal report received as a result of a request from the Project Administrator for details about adverse effects experienced by Canadian health care practitioners attributable to the legalization of assisted suicide and euthanasia. The respondents identified themselves to the Administrator, who promised to preserve their anonymity in discussion of the reports at a symposium at the J. Reuben Clark Law School of Brigham Young University. Discussion of the methodology of capacity assessments here is drawn from an earlier version at Sean Murphy, “Legalization of Assisted Suicide and Euthanasia: Foundational Issues and Implications" (2017) 31:2 BYU J Pub Law 333 at 350–353 [Murphy 2017].
41. Physician H, explanation offered in the presence of the Administrator, Protection of Conscience Project, on 10 October, 2015: verified by the Administrator prior to publication in Murphy 2017, supra note 40 at 352.
42. Supreme Court of Canada, “35591, Lee Carter, et al. v. Attorney General of Canada, et al (British Columbia) (Civil) (By Leave) Webcast of the Hearing on 2014-10-15” (22 January, 2018),Supreme Court of Canada (website) at 144:32/491:20 to 145:57/491:20.