Should it be legalised in Queensland?

OPINION

In its call for submissions to the Inquiry into Aged Care, End-of-Life and Palliative Care and Voluntary Assisted Dying, the Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee raises the following question in relation to voluntary assisted dying (VAD): Should voluntary assisted dying be legalised in Queensland?¹

Let’s call this ‘the fundamental question’. The fundamental question is, at least in part, a question about the ethics of VAD.²

As an academic medical ethicist and lawyer, I can give some guidance on how to answer this question.

First though, it is useful to clarify some terminology.

Terminology

There is extensive peer-reviewed literature on VAD and alternative practices such as euthanasia. In this literature, the terms ‘assisted dying’ and ‘euthanasia’ have been used to cover either or both of the following situations:

1 A person ends their own life using lethal medication provided to them for that purpose.

2 A third party, usually a doctor, ends another person’s life using lethal medication.

The standard use of ‘assisted dying’ is recorded in situation 1. ‘Euthanasia’ usually refers to situation 2. Sometimes, the word ‘euthanasia’ is avoided, in an attempt to distance the discussion from some unwanted connotations of the term (for example, it is sometimes associated with the Nazi practice of killing people with mental and physical disabilities because such people were considered a burden on society).³

Accordingly, ‘voluntary assisted death’ and ‘voluntary assisted dying’ may be used instead of ‘euthanasia’ to refer to the practice in situation 2. Since these terms also already refer to the practice in situation 1, they are often used to refer to both, as umbrella terms. Although this can be misleading, it is entirely legitimate⁴ to use these terms to avoid unwanted connotations, and the practice of using ‘voluntary assisted dying’ has been adopted by Queensland and Western Australia⁵ in considering this issue.

Another term that is largely avoided, at least in parliamentary debates, is the term ‘assisted suicide’. This term is avoided because, in contrast to what we might call ‘conventional suicide’, voluntary assisted dying involves helping the terminally ill, and those who suffer from neurodegenerative or other chronic diseases who are approaching death to avoid unnecessary suffering as they approach their inevitable death. It applies only to those who are already dying.

Two types of ground for prohibiting or permitting VAD

In thinking about the fundamental question, we should take careful note of the nature of the VAD debate. In peer-reviewed research I published with my colleagues in 2018,⁶ we examined the parliamentary debates that accompanied the introduction of every VAD Bill introduced into Australian state, territory and Commonwealth parliaments from 1993, when the first ever Bill was introduced, to the end of 2017 (thus including, for example, Victoria’s Voluntary Assisted Dying Act 2017).

When analysing all the arguments given for and against legalisation, we discovered that they fell into two broad categories:

1. Arguments concerning what we call ‘personal matters’, referring to personal beliefs and personal values that not everyone shares, such as ‘only God should take a life’⁷ or ‘killing devalues human life’.
2. Arguments concerning what we call ‘public matters’, referring to matters in which the state has a legitimate interest, such as the possible impact of legalisation on vulnerable people – people who, for example, could feel some pressure to undergo VAD but who, in feeling that pressure, would not be making a voluntary decision (and so would not be genuine candidates under the proposed legislation).

In the next section, I discuss category A, the personal matter arguments. In section 4, I will discuss category B, the public matter arguments.

Why you should support legalisation even if you don’t believe VAD accords with your own values

In our 2018 paper,⁸ we argued that people who base their position in respect of VAD (whether for or against) on personal matter grounds, should actually support legalisation.

Let me explain. For the most part, when we base our views about controversial matters on our personal values and beliefs, we know that other people can reasonably disagree with us.

A number of parliamentarians acknowledge this themselves.⁹ Consider those parliamentarians who claim that it is wrong for anyone other than God to take a life. These parliamentarians also know that some others do not share this view. The parliamentarians may think those other people are wrong or misguided. But could they also think that those people are irrational?

Well, they might. But the question is whether they could reasonably hold them to be irrational. What counts as a reasonable view, and reasonable disagreement, is determined objectively. No reasonable person can hold the view that it is permissible to torture an innocent person just for the fun of it. This is not a controversial matter, about which people can reasonably disagree. But reasonable people can hold the view that people other than God can take a life.

Beliefs about who can take a life can be the subject of reasonable disagreement. Once we accept this, an important consequence follows. Even if you, personally, are not in favour of VAD on a personal matter ground, you ought (reasonably) to be in favour of legalisation if you base your position on a personal matter ground. The reason for this is that, if VAD is prohibited on a personal matter ground, we would be imposing that ground on everyone – even if those people reasonably take a contrary view.

By contrast, if VAD is permitted, then everyone is free to act in accordance with their own values, beliefs, and conscience. Someone who objects to VAD on the basis that only God should take life is still free not to avail themselves of VAD in their own lives, even if VAD is permitted. Likewise, someone who accepts VAD on the basis that it is reasonable to relieve suffering through VAD, is free to act in accordance with that personal belief in their own lives.

One objection to this argument is: legalisation equally imposes the views of those in favour of VAD on those who are not in favour of VAD. But this is not so. To see why, we should recall that there are three broad categories of legislation:

1. legislation that prohibits conduct
2. legislation that permits conduct
3. legislation that mandates conduct (for example, we must wear a seatbelt).

Permissive legislation (option 2) is the middle ground between legislation that prohibits and legislation that mandates. It allows people to decide for themselves what is appropriate, in accordance with their own values. Only legislation that prohibits and legislation that mandates, if enacted on personal matter grounds,¹⁰ holds everyone hostage to one position. Neither option 1 nor option 3 are ethical, if the matter is one about which people can reasonably disagree.¹¹

Public matter arguments: legitimate state interest

So far, we have only established that the default position should be permissive legalisation. We have not yet answered the fundamental question – whether VAD should be legalised.

As noted in above, when my colleagues and I researched all the Australian parliamentary debates on VAD, we found there was another category of argument, which we termed the ‘public matter’ arguments. These concern matters in which the state has a legitimate interest, such as protecting vulnerable people.

The state’s responsibility is to take advice from experts on the empirical data about the adequacy of safeguards, and make the decision to prohibit or permit VAD on this basis alone.

The key point about these arguments is that they are not based on personal values that people reasonably disagree about. They are founded instead on beliefs that most of us share. For example, whether you are for or against VAD on personal matter grounds, you will likely share the belief that it would be wrong for vulnerable people to be negatively affected by this legislation.

As others argue, VAD regulation is a matter of public policy because the practice involves the prescription or administration of a lethal intervention by professionals who are licensed by the state to serve the best interests of vulnerable patients.¹²

To answer the fundamental question definitively, then, we need to answer the question about the possible impact on vulnerable patients: could it be the case that people who should not have access to VAD – because they are not making a voluntary decision – are going to have access and end their lives?

This is the question about adequacy of safeguards. It has a notoriously long history and is brought up in each and every debate about VAD. But we cannot answer this question by a vote. It is an empirical question.

My aim is not to persuade you that safeguards are adequate. I can only say that articles in the leading peer-reviewed journals in the world claim that, in jurisdictions with similar VAD legislation to that proposed in Queensland, safeguards are indeed adequate.¹³

Concluding remark

In closing, I want to emphasise one point that follows from the distinction between the personal matter and public matter grounds for permitting or prohibiting VAD. In deciding whether to legalise VAD, states and territories should direct their efforts towards resolving the public matter issues, and avoid personal matter issues. The state’s responsibility is to take advice from experts on the empirical data about the adequacy of safeguards, and make the decision to prohibit or permit VAD on this basis alone.

Dr Andrew McGee is an Associate Professor at the Australian Centre for Health Law Research, Faculty of Law, QUT.

This article first appeared on pages 20-21 of the October 2019 edition of Proctor.

Footnotes
¹ Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Issues Paper No.3, 56th Parliament, February 2019. parliament.qld.gov.au/documents/tableOffice/TabledPapers/2019/5619T191.pdf (accessed 08 September 2019).
² It can also be about other things, such as whether it is possible to legalise VAD, but I set this aside.
³ encyclopedia.ushmm.org/content/en/article/euthanasia-program.
⁴ Others, however, have been critical. See Western Australia, Parliamentary Debates, Legislative Council, 29 August 2019 (M M Quirk), 16.
⁵ Government of Western Australia, Department of Health, Ministerial Expert Panel on Voluntary Assisted Dying, Discussion Paper ww2.health.wa.gov.au/~/media/Files/Corporate/general%20documents/Voluntary%20assisted%20dying/PDF/MinisterialExpert-Panel-VAD-Discussion-Paper-March-2019.pdf (accessed 08 September 2019).
⁶ A McGee, Kelly Purser, Christopher Stackpoole, Ben White, Lindy Willmott, Juliet Davis, ‘Informing the euthanasia debate: Perceptions of Australian politicians’ (2018) 41(4) University of New South Wales Law Journal 1368-1417.
⁷ This claim is made by several MPs. Full details with references are given in the paper cited in reference 6.
⁸ Ibid.
⁹ See Western Australia, Parliamentary Debates, Legislative Council, 28 August 2019 (M McGowan) 5989; 29 August 2019 (A Sanderson), 30.
¹⁰ We turn to the public matter ground, which can alter the position, in section 4.
¹¹ This does not apply to every case we can disagree about: there can be reasonable disagreement about the death penalty, but we cannot accommodate this by having permissive legislation in this case, because that would mean the criminal could choose whether to have it or not, which would defeat the purpose of the penalty.
¹² Jansen, Wall and Miller, ‘Drawing the line on PAS’ (2019) 45 Journal of Medical Ethics 190-197.
13 Ezekiel J Emanuel et al, ‘Attitudes and Practices of Euthanasia and Physician-Assisted Suicide in the United States, Canada, and Europe’ (2016) 316(1) Journal of the American Medical Association 79-90.