Can Voluntary Assisted Dying Really Be Policed?

April 13, 2021 Updated: April 13, 2021

Commentary

In March of this year, Tasmania became the third jurisdiction in Australia to legalise euthanasia, with the passage of the End-Of-Life Choices (Voluntary Assisted Dying) Bill 2020, the law will give patients a way to end their lives if the right criteria are met.

This law is of course not the first of its type in Tasmania, with numerous attempts to pass assisted dying legislation in 20092013, and 2016.

In 1995 ,the Northern Territory passed the Rights of the Terminally Ill Act 1995, which was later rendered inoperable by the federal government’s Euthanasia Laws Act 1997 amid public outcry.

Numerous attempts at passing voluntary assisted dying (VAD) legislation have taken place since then, with Victoria being the first state to successfully do so in 2017, and Western Australia following suit in 2019.

With the bulk of the provisions of the West Australian model yet to come into effect, the only way we can examine Australia’s experience so far with the practice comes from three reports published by the Voluntary Assisted Dying Review Board of Victoria.

Prior to the Victorian provisions coming into effect, the Victorian State Premier Daniel Andrews said, “We anticipate in the first 12 months, based on overseas experience, around a dozen people that will access voluntary assisted dying.”

Andrews added that the number of patients would increase and begin “stabilising” at up to 150 patients per year.

The first report (pdf) from the Voluntary Assisted Dying Review Board for the period June to December 2019 noted 52 cases of the VAD drug being administered to patients.

The second report (pdf), from January to June 2020, showed 78 people choosing to end their lives via VAD in that period.

The most recent report (pdf), from July to December 2020, revealed 94 people choosing to end their lives, bringing the total VAD deaths to 224 since it became accessible in 2019.

This is far more than the expected “dozen” cases of the first year of operation, and beyond the higher “stabilised” estimate by the Andrews Government.

Evidently, this shows that the VAD experience has far outweighed the expectations of the government.

Which raises the question: Is it safe?

The answer is almost impossible to say. The VAD Review Board’s primary function is merely to check paperwork and ensure the process has been complied with. However the first report revealed that 83 percent of cases had deficient paperwork that was sent back for correction.

As author John Keown said in his book Euthanasia, Ethics and Public Policy:

What checks, if any, will the Secretary carry out to ensure that the requirements have been met before issuing a permit? If the required forms have been submitted and the appropriate boxes ticked, will they not automatically attract a rubber stamp?

This model, as is most likely the case in Tasmania, largely relies on the expertise of doctors and the accuracy of their reports.

The first report noted that the kind of training doctors had to undertake in order to deal with patients in VAD situations took four hours to complete, and focused on compliance with the act—not speciality care or training on how to identify issues like undue influence and duress on a patient.

This question is particularly relevant when considered against the Inquiry into Elder Abuse by the Parliament of Western Australian in 2018, which acknowledged “inheritance impatience” being one of the ten forms of elder abuse.

Further, there is the criminal case of Justins v Regina in New South Wales where a wife and a friend helped end the life of the wife’s husband who had Alzheimer’s disease.

At first glance, the case looked like an act of mercy committed on a husband who wanted to die. However, upon deeper investigation, the case revealed a much more complex backstory.

The wife and the husband visited a doctor who was not their usual general practitioner (GP) and had never seen before. The husband could no longer read or write and did not have “testamentary capacity”—the mental capacity to amend his will.

Yet, they were able to obtain certification from the GP to assert that the husband was “capable of making his own decisions and understanding the nature of those decisions.”

The husband was then taken by the wife to see a solicitor to have his will amended. The will originally left 50 percent of his A$2 million estate to the wife, and 25 percent to each of the husband’s daughters (the wife’s stepdaughters).

The wife instructed the solicitor to amend the will to leave almost all of the estate to her, minus a sum of $100,000 per daughter (5 percent of the estate each).

While in the appeal, the court acknowledged:

The Crown takes issue with this aspect of the offender’s account, in that the offender’s role in changing her partner’s will justifies the conclusion that her assistance in his suicide was not entirely altruistic, but was motivated to some degree by self-interest.

No jurisdiction appears to have a mechanism to prevent something like this from happening under its VAD legislation.

There is seemingly no active policing outside of paperwork compliance. While there is a criminal penalty for those who do such a thing, monitoring such an issue and launching an investigation is difficult and unlikely. If they do occur, it may be too late for the victim.

Ultimately, issues involving undue influence, duress, and abuse are not actively policed in VAD cases.

These issues are entirely reliant on a doctor, which is even more difficult since this sort of influence is likely hidden by the victim or perpetrator.

Nor does the legislation effectively prevent individuals from “doctor shopping,” that is, to attend numerous doctors to find one who will sign-off on the relevant paperwork and give a desirable diagnosis.

While the Tasmanian model attempts to prevent this shopping under Section 38 of the Act, there are still loopholes for patients to find a preferred diagnosis or assessment.

While many are supportive of legalising VAD in Australia, a word of caution is necessary because we are dealing with important matters of life and death. Above all, we must not let eagerness get in the way of scrutiny and we should always seek to protect our most vulnerable from abuse.

By Heath Harley-Bellemore

Heath Harley-Bellemore is the vice-president of the Western Australian Legal Theory Association, and who is researching voluntary assisted dying at the University of Notre Dame, Sydney.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.