I am pleased to be able to post this guest post from Dr Alex Deagon FHEA, Senior Lecturer, Faculty of Law, Queensland University of Technology, who had made a Submission to the Queensland Parliamentary Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee on Voluntary Assisted Dying.
In short, his opinion (which I support) is that voluntary assisted dying should not be permitted, but if it is, medical practitioners and institutions should be able to hold and exercise conscientious objections. This issue, of course, relates to “law and religion” because there are deep religious objections to VAD; but it should be noted that the reasons offered by Dr Deagon are not based on a religious world-view, being instead general public policy considerations. The question of conscientious objection, of course, will also be especially relevant to religious medical practitioners, but again there will be many others who object to the procedure on other moral grounds.
Should voluntary assisted dying (VAD) be allowed in Queensland? Why/why not?
I submit that VAD should not be allowed in Queensland for the following reasons.
First,the Australian Medical Association has released a position statement indicating their opposition to euthanasia: ‘The AMA believes that doctors should not be involved in interventions that have as their primary intention the ending of a person’s life’.Contrary to what some advocates contend, the AMA further observes that for most patients, pain and suffering at the end of life can be alleviated through good quality palliative care (1.3). The AMA also observes that requests for a deliberately hastened death may be associated with conditions such as depression and other mental disorders, dementia, reduced decision-making capacity, and poorly controlled clinical symptoms. Understanding and addressing the reasons for such a request may mean the patient no longer desires to end their life, or may not have the capacity to make that decision (2.1).
Second,the World Medical Association has also resolved that euthanasia is unethical and should not be allowed:
‘Euthanasia, that is the act of deliberately ending the life of a patient, even at the patient’s own request or at the request of close relatives, is unethical… Physicians-assisted suicide, like euthanasia, is unethical and must be condemned by the medical profession. Where the assistance of the physician is intentionally and deliberately directed at enabling an individual to end his or her own life, the physician acts unethically…
BE IT RESOLVED that:
The World Medical Association reaffirms its strong belief that euthanasia is in conflict with basic ethical principles of medical practice, and
The World Medical Association strongly encourages all National Medical Associations and physicians to refrain from participating in euthanasia, even if national law allows it or decriminalizes it under certain conditions.’
Third,101 Victorian oncologists wrote to members of the Victorian Parliament to persuade them to vote against their Voluntary Assisted Dying Law.It is worth quoting from this letter in detail:
‘As 80% of those who access physician assisted dying legally overseas have cancer, we feel our perspective on this issue should be heard.
We add our voices to the 100 palliative care specialists who have already corresponded with you requesting that you oppose the passage of this bill. We collectively represent a significant proportion of the oncology workforce in the state of Victoria.
We do not believe that it is possible to draft assisted dying laws that have adequate safeguards to protect vulnerable populations, especially those with incurable cancer, progressive neurological illness, the aged and disabled. These groups of people experience high rates of depression and isolation. The risks that such legislation poses for the majority of these outweigh any benefits for the few in our opinion.
Physician assisted dying places people at risk of coercion that is both active and passive. As a consequence of assisted dying laws, society re-assesses the value of life; and the individual is taught to devalue their own life. Those with serious illness may perceive that they are a burden on society or their carers and come to feel that assisted dying is appropriate for them.
Assisted dying laws are easily challenged from a human rights and equality perspective. Indications over time will be extended beyond adults with terminal illness, to those with mental illness alone, dementia, disability, children and the healthy elderly who have “completed lives”. In Oregon USA in June 2017 the senate debated a bill that would allow demented patients and others with “mental incompetence” to be starved to death. Oregon
is not a lead that we wish to follow.
Physician assisted death is not, by definition, medical treatment. It is not palliative care. We as doctors and medical specialists do not want to intentionally end the lives of our patients, or provide them with the direct means to do so. Assisted suicide is in conflict with the basic ethical principles and integrity of medical practice and undermines trust in the medical profession. We strive to eliminate suffering but not the sufferers themselves.
… We are very disappointed that discussion of the Voluntary Assisted Dying Bill has dominated the agenda to improve end of life care in Victoria. We are dismayed that the multiple recommendations made by the Victorian Parliamentary Inquiry into End of Life Choices (June 2016) to strengthen palliative care have not been actioned. Until this is addressed, discussing physician assisted dying is premature.
… The United Kingdom parliament resoundingly rejected an Assisted Dying bill in 2015 as there is no “safe system” and we urge the Victorian parliament to do the same.’
Fourth, despite the assurances of euthanasia advocates that significant safeguards will prevent improper use, in other jurisdictions children have been euthanized. Moreover, some patients have actually been euthanized against their will. These facts undermine the claim that there is a safe system. If even a single patient can be euthanized against their will the cost to human life from such legislation is too high.
Fifth,allowing voluntary assisted dying is counter-productive to combating Australia’s suicide problem. It is incongruent to affirm the autonomy of certain people to choose the time and manner of their death while denying the autonomy of others to do so by discouraging suicide. The extraordinarily broad framing of the ‘Characteristics of a potential voluntary assisted dying scheme’ in the Issues Paper (p 6) patently exposes this:
‘Based on other VAD schemes, the features of a potential VAD scheme for Queensland could include:
• a person must want to end their life for a reason they consider to be valid
• a person must provide their consent to have their life ended
• a person must have capacity to make the decision to have their life ended, and
• a third party, such as a medical practitioner, may assist in ending that person’s life.’
There is nothing in this framing which excludes a person who simply wants to commit suicide. They can want to end their life for any reason THEY consider to be valid, so the test is completely subjective. As long as they consent and have capacity they could obtain assistance to die. Therefore a VAD scheme would institutionally persuade people that suicide is an appropriate option.
Finally, and most fundamentally, as the Victorian oncologists indicate, euthanasia inherently devalues human life, particularly that of our most vulnerable members of society: the elderly, sick and disabled. Rather than protecting and assisting the vulnerable, allowing voluntary assisted dying would legalise their state-sanctioned killing.
Should medical practitioners be allowed to hold a conscientious objection against VAD ? If so, why? If not, why not?
If practitioners hold a conscientious objection to VAD , should they be legally required to refer a patient to a practitioner that they know does not hold a conscientious objection or to a service provider that offer such a service? If so,why? If not, why not?
This is an extremely important issue and was not properly considered in relation to the Termination of Pregnancy Act 2018(Qld). It is hoped that the Health Committee will more meaningfully engage with the views expressed in this submission than they did with the abortion legislation. This is my summary of the problem for Law and Religion Australia:
“For individual healthcare practitioners, this law does not get the balance right between conscientious objection and provision of healthcare services. It compels practitioners to participate in the abortion process against their conscience when this is not necessary to achieve provision of the service. For health providers which might have conscientious objections at an institutional level, there is no balance at all. The lack of protection stems from the faulty premise that freedom of thought, conscience and religion is merely a personal and individual right. It is hoped that, upon further reflection by Members of Parliament and the public, amendments to the legislation to properly protect conscientious objection will be forthcoming.”
The AMA Position Statement also cautions that ‘the medical profession must be involved in the development of relevant legislation, regulations and guidelines which protect… patients and doctors who do not want to participate’ in euthanasia (3.4).
If we take the abortion legislation as the model of what may be in mind, and replace ‘termination’ with ‘VAD’ and ‘woman’ with ‘patient’:
Registered health practitioner with conscientious objection
(1) This section applies if—
(a) a person asks a registered health practitioner to—
(i) perform VAD on a patient; or
(ii) assist in the performance of VAD on a patient; or
(iv) advise the person about the performance of VAD on a patient; and
(b) the practitioner has a conscientious objection to the performance of VAD.
(2) The registered health practitioner must disclose the practitioner’s conscientious objection to the person.
(3) If the request is by a patient for the registered health practitioner to perform VAD on the patient, or to advise the patient about the performance of VAD on the patient, the practitioner must refer the patient, or transfer their care, to—
(a) another registered health practitioner who, in the first practitioner’s belief, can provide the requested service and does not have a conscientious objection to the performance of VAD; or
(b) a health service provider at which, in the practitioner’s belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of VAD.
This section requires a health practitioner with a conscientious objection to providing VAD to disclose their objection to the person seeking the service and refer the person or transfer their care to a health provider or practitioner who the first practitioner believes can provide the service because they do not have such an objection. It is worth noting the positive aspect of this provision. The concession is important in that it does not directly compel a medical practitioner to provide VAD or to participate in VAD.
However, for a medical practitioner with a genuine conscientious objection, this provision is not much of an improvement over direct compulsion. It still compels complicity on the part of a registered health practitioner by forcing them to participate in VAD through compulsory reference. It might be objected that VAD is not guaranteed because it is simply a referral and consequently it cannot burden conscience. However, if a practitioner believes the alternative provider can provide the service and the alternative provider does not have an objection (as the practitioner is required to do in order to refer), then the practitioner must necessarily have the belief that the alternative provider will most likely provide VAD in their stead. In other words, this provision renders a practitioner with a conscientious objection directly complicit in the VAD. The provision compels them to be part of the very process they object to. A genuine provision for conscientious objection would allow a health practitioner to completely abstain from the process.
This compulsion might be justified on the basis that the conscientious objections of practitioners should not prevent access to VAD, particularly in rural areas. In the unlikely scenario where the only available health practitioners have conscientious objections, at best it is questionable whether any ‘right’ to access VAD outweighs the much more deeply entrenched human right of freedom of conscience.In most circumstances, it will be simple enough to go to another practitioner without requiring the first practitioner to refer the patient to a practitioner they believe will perform the VAD.
There is a further, potentially even more significant problem with the model conscientious objection provision which has not been canvassed at all in public debate. The conscientious objection in this model does not extend to hospitals or institutions. This followed the Recommendation to this effect from the Queensland Law Reform Commission Report(at 4.149) on the basis that “freedom of thought, conscience and religion is a personal and individual right”. The subsequent Health Committee Report followed this exactly at 6.7.2, despite my submission to the contrary.The QLRC did not provide any argument or evidence to justify their claim.
It is unfortunate that the QLRC and the Health Committee did not engage with this issue properly. It is well accepted that, in fact, freedom of thought, conscience and religion is a group or associational right as well as an individual right. There is a general consensus among specialist scholars in the field that the right to hold and practice religion has personal, associational, communal, organisational and institutional dimensions. As Professor Carolyn Evans explains:
While human rights belong to individuals, the right to manifest religious freedom collectively means that it has an organisational dimension. When individuals choose to exercise their religion within an organised religious group, the state must respect the autonomy of this group with respect to decisions such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.
More broadly, as Cole Durham similarly observes:
Protection of the right of religious communities to autonomy in structuring their religious affairs lies at the very core of protecting religious freedom. We often think of religious freedom as an individual right rooted in individual conscience, but in fact, religion virtually always has a communal dimension, and religious freedom can be negated as effectively by coercing or interfering with a religious group as by coercing one of its individual members.
As John Inazu explains, it is only instances where there are gross or substantive violations, harms or threats to others that associational freedom should be limited. Similarly, Article 18 of the International Covenant on Civil and Political Rightsclearly states:
‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.’
Furthermore, though Section 116 of the Australian Constitution does not technically apply as this is a state law, as I have argued elsewherethe High Court has consistently heldthe provision extends to protect both religious groups and religious individuals.Therefore any conscientious objection provision should be extended to allow institutions to conscientiously object to VAD. Not doing so could have major implications for religiously based hospitals which conscientiously object to providing VAD. By their nature these objections are deeply founded and rooted in fundamental beliefs and principles. They cannot be changed or abrogated simply because political expediency might demand it. Hospitals in this position will find themselves choosing between violating their conscience as an institution or closing their doors. As with individual health practitioners, not only is this a problematic outcome in a diverse society, it will actually have a detrimental impact on people seeking health services. Less religious hospitals means less hospitals, and less hospitals means less access to health services generally. This, in fact, would have a much more devastating impact on vulnerable patients seeking relief compared to simply allowing such hospitals the option of declining to perform VAD.
Australian Medical Association Position Statement, 2016, https://ama.com.au/system/tdf/documents/AMA%20Position%20Statement%20on%20Euthanasia%20and%20Physician%20Assisted%20Suicide%202016.pdf?file=1&type=node&id=45402at 3.1.
WMA Resolution on Euthanasia, current as at 2019: https://www.wma.net/policies-post/wma-resolution-on-euthanasia/.
Alex Deagon, ‘Conscientious Objection in the Termination of Pregnancy Bill 2018’, Law and Religion Australia, October 19, 2018: https://lawandreligionaustralia.blog/2018/10/19/conscientious-objection-in-the-termination-of-pregnancy-bill-2018-qld-guest-blog/.
See e.g. Article 18 of the International Covenant on Civil and Political Rights, as below.
QLRC Report on the Review of termination of pregnancy laws, https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0004/576166/qlrc-report-76-2018-final.pdf.
Health Committee Report on the Termination of Pregnancy Bill 2018, https://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2018/5618T1578.pdf; c.f. Alex Deagon, Submission on Termination of Pregnancy Bill (No. 8): https://www.parliament.qld.gov.au/documents/committees/HCDSDFVPC/2018/TerminationOfPregnancyB18/submissions/008.pdf.
Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism(Oxford University Press, 2013) 317-318.
Nicholas Aroney, ‘Freedom of Religion as an Associational Right’ (2014) 33 University of Queensland Law Journal153, 168, 181. See also e.g. David Little, ‘Religious Liberty’ in John Witte and Frank S. Alexander (eds), Christianity and Law: An Introduction(Cambridge University Press, 2008) 249; Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State(Oxford University Press, 2011 2nded) 375-377; Robert George, Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism(Intercollegiate Studies Institute, 2013) 76; Victor Manuel Muniz-Fraticelli, The Structure of Pluralism: On the Authority of Associations(Oxford University Press, 2014); Micah Schwartzman, Chad Flanders and Zoe Robinson (eds.), The Rise of Corporate Religious Liberty(Oxford University Press, 2016); Hans-Martien Ten Napel, Constitutionalism, Democracy and Religious Freedom(Routledge, 2017).
Carolyn Evans, Legal Protection of Religious Freedom in Australia(Federation Press, 2012) 35.
W. Cole Durham, ‘The Right to Autonomy in Religious Affairs: A Comparative View’ in Gerhard Robbers (ed), Church Autonomy: A Comparative Survey(Peter Lang, 2001) 1.
John Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference(University of Chicago Press, 2016),48, 64-65, 79. See also John Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly(Yale University Press, 2012); John Inazu, ‘A Confident Pluralism’ (2015) 88 Southern California Law Review587, 605.
Alex Deagon, ‘Defining the Interface of Freedom and Discrimination: Exercising Religion, Democracy and Same-Sex Marriage’ (2017) 20 International Trade and Business Law Review239.