Analysis by Professors Ben White and Lindy Willmott, Australian Centre for Health Law Research, Faculty of Business and Law, QUT
Our analysis of these proposed amendments include 5 key points:
1. It is difficult to know the consequences of the amendments
The proposed amendments were delivered on the day the Voluntary Assisted Dying Bill 2021 (Qld) was to be debated in the Queensland Parliament (14 September 2021). Detailed analysis of these proposed changes is very difficult within such short time constraints. But careful scrutiny is needed to avoid unforeseen and unintended consequences.
2. The amendments make an already balanced law unwieldy, incoherent and unworkable
Having seen this happen in other voluntary assisted dying (VAD) debates in Australia, we called for Parliament to avoid “piling on” ad hoc amendments at the last minute. Yet, this is what has happened. Because these are “add ons” to a logical and structured Bill that was designed by experts, the amendments make the law unwieldy, incoherent and even unworkable (more on this below).
3. The amendments create unworkable processes that will mean VAD will not be accessible for people for whom it was designed
If there is support for passing the original Bill in principle, amendments that then make the VAD system unworkable and prevent it from operating effectively should be rejected. Perhaps the best example of this unworkability is the proposed “doctoring-up” amendments which would mean:
- A first request for VAD cannot be made until the patient has consulted a “registered health practitioner who is qualified and accredited in palliative care” (no more than one month before requesting VAD).
- A mandatory capacity assessment by a psychiatrist or psychologist.
- Requiring both the coordinating and consulting doctors to be specialists in the patient’s illness (assuming the Victorian interpretation of their law is adopted).
This adds 4 new specialist health practitioners to the process. No other Australian model imposes any of these 3 requirements above – let alone all of these 3 requirements. Adding these extra hurdles and making them depend on a specialist health workforce has clear and obvious implications for patient access.
4. The amendments remove (all) protections for terminally-ill patients to focus on protecting institutions
Institutional objection has been the subject of considered and thoughtful debate in the Parliament. We provide our analysis of the proposed amendments to support this rational debate to continue. Our overall assessment is that the proposed amendments remove protections from patients and instead entrench institutions’ rights to object. We see three key problems:
A) The amendments remove permanent residents’ protection to access VAD in their own home. The Bill currently allows permanent residents to access VAD but this would be taken away. We note that public calls from institutions for change to the Bill have focused on objections in hospitals and not on stopping permanent residents accessing VAD. So these amendments go beyond what institutions themselves have been publicly asking for. This is also less protection than was given by VAD law in South Australia.
B) The amendments would only require institutions to not “prevent transfer” by a patient. For patient transfers, the Bill currently requires institutions to help patients make this possible – to take reasonable steps. Under the amendments, the burden of navigating the health system and finding a transfer to another facility is on terminally-ill patients.
C) The amendments impose a new “responsibility” on the doctor supporting a patient with VAD to “ensure” that any transfer of that patient “does not detrimentally impact” on their health. This is a very odd provision and we think unworkable in practice. Transferring a patient who is terminally ill and suffering will invariably “detrimentally impact” on their health. Doctors simply cannot guarantee that patients will not be adversely affected, meaning these patients cannot access VAD.
While there is room for reasonable debate about institutional objection, the proposed amendments do not reflect a genuine compromise model. Protections are taken from patients and given to institutions.
5. How should MPs approach the amendments? Onus is on proposers of change
Because this is a Bill that has been designed by experts, that has been open for consultation for 12 weeks, and is the product of extensive consultation and input, there is a heavy burden on those proposing major changes at the last minute to persuade the Parliament that these amendments are essential.
Given the risk of unintended consequences and the effect of making the Bill unwieldy, incoherent and unworkable, it is not enough to say the amendments “might just help a bit”. It is also not sufficient to propose amendments to deal with issues that the Bill already addresses well.
The onus is squarely on those proposing these changes to make a compelling case for:
- how and why these amendments are clearly needed and the significant benefit they would bring; and
- how the amendments address new issues that are not already addressed by the Bill.
About Ben White
Professor Ben White is an Australian Research Council Future Fellow (Professorial Level, 2020-2023) and a member of the Australian Centre for Health Law Research. His area of research focus is end-of-life decision making with a particular focus on voluntary assisted dying.
Ben’s research has had significant impact leading to changes in law, policy and practice. His work has been adopted by parliaments, courts and tribunals, and law reform commissions and has also influenced State and national end-of-life policy and prompted changes to clinical education in universities, hospitals, and health departments.
You can learn more about Ben and his research and publications in his staff profile.
About Lindy Willmott
Professor Lindy Willmott is a member of the Australian Centre for Health Law Research, and publishes extensively in the area of health law. Lindy specialises in end-of-life decision making and guardianship law.
Lindy’s research has had significant impact leading to changes in law, policy and practice. Her work has been adopted by parliaments, courts and tribunals, and law reform commissions and has also influenced State and national end-of-life policy and prompted changes to clinical education in universities, hospitals, and health departments.
You can learn more about Lindy and her research and publications in her staff profile.