Voluntary assisted dying (VAD) is a controversial topic.
Victoria’s Voluntary Assisted Dying Act 2017 and the proposed Western Australian Voluntary Assisted Dying Bill 2019 have been the subject of much media and public debate. Queensland is now considering the issue given the current parliamentary Inquiry into Aged Care, End-of-Life and Palliative Care and Voluntary Assisted Dying. The committee and many Queenslanders are grappling with the question of what the law should be.
Our view is that limited and highly regulated VAD should be permitted. It is possible to have a safe and rigorous VAD system that provides choice for people who are terminally ill and are suffering and, at the same time, protects the vulnerable. We reached this view after many years of reflecting on the ethical issues associated with VAD and the large volume of empirical research on how VAD systems operate in other parts of the world where it is lawful.
A draft voluntary assisted dying Bill
As part of our research, we undertook the exercise of writing a draft VAD Bill. The purpose of this was to state, in Bill form, our position as to how VAD should be permitted and regulated. The starting point for drafting the Bill was the values that we outlined and explained in the chapter ‘Assisted Dying in Australia: A Values-based Model for Reform’ in Tensions and Traumas in Health Law.1
Those values are life, autonomy, freedom of conscience, equality, rule of law, protecting the vulnerable, and reducing human suffering. We later added to this list the concept of safe and high-quality care. As the proposed model positions VAD within the health system, it must be provided in a way that is safe and of high quality, as we would expect for all other health care.
When drafting the Bill we drew on other models, most significantly the Victorian VAD law. Where we agreed with the policy position in Victoria’s Voluntary Assisted Dying Act, we adopted that approach and much of the draft Bill reflects the Victorian model. However, we also drew on a range of other sources including international models and recent Australian Bills, especially those that were close to passing through the relevant house of parliament.
Our objective was to put forward a values-based Bill that drew on existing legislative models and was informed by our understanding of the empirical evidence. There is not scope in this article to explain the Bill in detail but it can be downloaded here: eprints.qut.edu.au/128753.
Is it appropriate for parliaments to consider different VAD models?
One question confronting state parliaments is whether they should simply follow the Victorian law or whether some differences in approach are appropriate. This has been the subject of vigorous debate in the media. In Western Australia, some proposed departures from the Victorian model – which we consider to be modest and sensible – have been the subject of significant scrutiny.
And at a national level, an article in The Australian reported on differences between the Victorian law, the West Australian Bill and our draft Bill using the words ‘death creep’, a phrase coined by opponents to VAD. The strongly articulated message was that any alteration of the Victorian model represented a ‘slippery slope’ and was therefore undesirable.
Our view is that it is appropriate for different state parliaments to consider different VAD models. Indeed, we argue for two reasons that a commitment to optimal VAD laws actually requires different approaches. The first reason is that each state must consider local conditions and views to determine what is best for its constituents.
To illustrate, legislation that may work in Victoria may not work as well in Queensland or Western Australia given their vastly different geography and population distribution. This point was made by the West Australian Ministerial Expert Panel whose recommendations informed the proposed law in that state.
From a Queensland perspective, to simply adopt a Victorian law without carefully considering whether that is the best model for that state and its people is not defensible.
The second reason is that, even putting aside state differences, it is incumbent on law-makers to develop the best VAD laws possible. Simply because Victoria was the first state to enact legislation does not mean it is the best legislative model.
While there is much to commend in the Victorian model, as a result of research we have undertaken analysing the law, we argue that there are aspects of the Victorian law that are not optimal. Further, although it is too early for empirical research about how the Victorian law operates in practice, the 18-month implementation process has identified challenges.
One is the prohibition on a health professional raising the topic of VAD with patients. This is part of the Victorian law but is not in the West Australian Bill nor our draft Bill. Such a prohibition will adversely affect openness in end-of-life
discussions. Our view is that this is not the best law possible, and so Queensland should not be bound to automatically adopt this aspect of the Victorian model.
Whether it is appropriate for state parliaments to consider different models can also be viewed from an opposing perspective. Those arguing that the Victorian model must be adopted without variation must commit themselves to two positions: that local conditions do not warrant a different approach, and that aspects of the Victorian law that are widely seen as problematic must still be adopted. These positions are difficult to sustain.
A call for evidence-based and rational law-making
The above illustrates the importance of our final point: law-making on VAD must be rational and evidence-based. While VAD gives rise to emotive issues, this arguably makes considered deliberation when debating such laws even more important.
We distinguish moral claims (that something should or should not happen) from factual claims (that something is or is not happening in practice). A moral claim, such as that killing a person is always wrong, is based on a person’s values.
There are important ethical issues involved in VAD so it is appropriate for people to advance moral claims. While it is legitimate for people to have different values, they should articulate what those values are, and do so transparently so others can evaluate their position. Factual claims, such as that VAD will adversely affect the provision of palliative care, are different because they depend on evidence. The weight that parliamentarians give to such claims should depend on whether they are supported by evidence, and how reliable that evidence is.
As mentioned earlier, there is a large body of reliable peer-reviewed evidence about how VAD regimes operate in other jurisdictions which can be valuable in weighing factual claims. There can also be factual claims in these debates about both the content and effect of VAD laws.
While the complexity of the law can sometimes make this challenging, recent media coverage in Western Australia has seen aspects of its Bill being misrepresented. Those opposed to VAD have also made incorrect statements about how our draft Bill would operate in practice.
The responsibility for ensuring rational and evidence-based deliberation rests with all participants in the VAD debate. This includes the individuals and organisations advancing positions on the law, the media, and of course the parliamentarians who are ultimately called upon to decide such issues. VAD is an important social issue which needs and deserves earnest, honest, informed and rational reflection.
Ben White and Lindy Willmott are professors at the Australian Centre for Health Law Research, Faculty of Law, QUT. They have been researching end-of-life law, policy and practice for almost 20 years.
This article first appeared on pages 22 and 23 of the October 2013 edition of Proctor.
1 Lindy Willmott and Ben White, ‘Assisted Dying in Australia: A Values-based Model for Reform’ in Ian Freckelton and Kerry Peterson, Tensions and Traumas in Health Law (Federation Press, 2017).