Voluntary Assisted Dying laws

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Aged Care, VAD, Religious Freedom and s 109

Should a religious aged care provider be able to operate in accordance with its religious convictions? This issue is being debated in NSW at the moment in the context of the law allowing “voluntary assisted dying”. The Voluntary Assisted Dying Act 2022 (NSW) allows persons with a terminal illness to choose death, which can be self-administered or administered by a health professional. Many health professionals have religious convictions which mean that they find the procedures for persons to choose death morally unacceptable. They do not wish to be involved in the process.

Under the legislation there is a right for individual health professionals to conscientiously object to the procedures, and to decline to be involved: see sections 9, 21 and 32. Faith-based hospitals may also decline to be involved in VAD procedures. However, at the moment faith-based aged care facilities are obliged to allow medical practitioners onto their premises to administer VAD.

A Private Member’s Bill has been introduced into the NSW Parliament which will amend the Act to allow faith-based residential aged care facilities the same choice as that available to faith-based hospitals, to decline to be involved in VAD or to decline to allow VAD to be administered on their premises. The Voluntary Assisted Dying Amendment (Residential Facilities) Bill 2025 is due to be debated soon.

In this comment, rather than deal with other policy issues as such, I want to address the claim that has been put forward that these amendments would be inoperative because they would bring about a clash with Commonwealth law. A legal opinion has been made available, prepared by Arthur Moses SC and Dr Patrick Keyzer, which asserts that the amending Act would be invalid due to the operation of s 109 of the Commonwealth Constitution (“the VAD Opinion”). In my view this is not correct. Whatever other reasons there may be for opposing the amending Bill, s 109 does not provide a good reason to do so.

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Voluntary assisted dying laws partly invalid

An important decision handed down recently in the Federal Court of Australia rules that part of Victoria’s euthanasia law (the Voluntary Assisted Dying Act 2017 (Vic)(“VADA 2017”)) is invalid, as it authorises assistance with suicide, which is prohibited by Federal law. The decision, of Abrahams J as a single judge in the Federal Court, is Carr v Attorney-General (Cth) [2023] FCA 1500 (30 November 2023). The implication is that similar provisions of other State and Territory laws are also invalid. The relevant federal law, sections 474.29A and 474.29B of the Commonwealth Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth), in broad terms, makes it an offence to assist or encourage someone to commit suicide through use of a “carriage service”, most commonly by use of a telephone (either a voice call or a text message), email, or some internet service.

In my opinion laws like the VADA 2017 are bad for the community. Western society has long had strong prohibitions on taking one’s own life. At the end of life when terminal illness is involved, we have developed palliative care now to the point where on the whole serious pain is not an issue. Of course decisions can be taken when death is imminent to make someone comfortable, even if this incidentally leads to a small hastening of death. But VAD 2017 and similar laws have crossed the line into a world where a person can give up on life even when serious pain and imminent death are not involved, and these laws force doctors to be takers of life, rather than healers. They also often impose serious burdens on the religious freedom of practitioners and organisations with a strong commitment to the value of life who are pressured, or sometimes forced, to take part in these procedures.

(For excellent commentary on end of life issues generally, see this page of resources from Ethicentre. In particular, see this comment from Megan Best on problems with the current assisted dying laws. For previous comment on this blog about these laws, see here and here.)

In this context it is good to see a narrowing of the operation of the laws. The effect of the decision in Carr will not be to remove all the bad features of the laws- face to face consultations and advice by post are still available. But they should give medical practitioners asked to participate in these processes serious cause to reflect as to whether they might be subject to penalties under federal law.

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Euthanasia and Assisted Dying- the law and why it should not change

This is a paper I presented recently at an evening considering issues around euthanasia and assisted dying: Euthanasia Paper May 2018. It presents reasons why changing the law in these areas is not a good idea in the interests of society at large and the vulnerable sick and elderly in particular.

For further material on this issue, see the excellent site “Health Professionals Say No“, which as well as providing a long list of health professionals who oppose euthanasia, also links to a set of resources for further study. And for a recent UK paper exploring the meaning of “dignity” in this context, see the report Dignity at the End of Life: What’s Beneath the Assisted Dying Debate? from the Theos Institute. (Thanks to Dr Megan Best for these extra resources.)

There is also an excellent recent piece here, “Physician-Assisted Suicide: Why Neutrality by Organized Medicine Is Neither Neutral Nor Appropriate” (2 May 2018, Journal of General Internal Medicine) arguing for health professionals to continue to actively oppose  Physician Assisted Suicide.

These comments from the front page of the first website noted above summarise the issues very well:

We believe that crossing the line to intentionally assist a person to suicide would fundamentally weaken the doctor-patient relationship, which is based on trust and respect. The power of the clinician/patient relationship cannot be over-estimated. It is proven the desire to die diminishes dramatically when appropriate care and support is provided.

We are especially concerned with protecting vulnerable people who can feel they have become a burden to others, and are committed to supporting those who find their own life situations a heavy burden. We believe such laws would undermine the public perception of the dignity and value of human life in all its different stages and conditions. There is strong evidence to the inherent lack of safety and proven abuses where physician assisted suicide and euthanasia laws exist.

Government focus should be on the compassionate and equitable provision of Social Services, Health Care and Palliative Care toward maintaining and protecting the dignity and lives of those with illness, age or disablement. There is still much to be done to address social, medical and mental health inequity and in our society.

Doctors and Healthcare Professionals are not necessary for the legalisation or practice of assisted suicide. Their involvement is being sought only to provide a cloak of medical legitimacy. Doctors, nurses and allied health professionals focus should be on saving lives and providing real care and support for those who are suffering.