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Associate Professor Andrew McGee discusses Voluntary Assisted Dying legislation

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Why making voluntary assisted dying legal best respects both sides of this debate

After almost three decades of refusing to agree to it, it looks as though Australian parliaments are slowly beginning to warm to the idea of voluntary assisted dying (VAD). Legislation has already been passed in Victoria and a number of people have now been able to end their lives under the legislation.

Among other requirements, these people must be diagnosed with an incurable disease, illness or condition that is advanced, progressive and expected to cause death within 6 months, or within 12 months if they have a neurodegenerative disease, illness or condition. The disease, illness or condition must also be causing suffering to the person that can’t be relieved in a way the person finds tolerable.

Legislation with similar requirements has also now passed in Western Australia, and is due to come into effect in 2021. Other States and Territories such as Queensland have held inquiries into the issue with parliamentary reports recommending legalisation. The Queensland government is due to respond to the recommendations this week. New Zealand will have a referendum on it later this year.

One issue of contention that has not yet been resolved concerns the scope of the right of medical practitioners to conscientiously object to participation in a voluntary assisted dying process, once VAD is legalised.

Although the legislation in both Victoria and Western Australia allows practitioners who have a personal objection to VAD not to participate in it, practitioners in Western Australia will have an obligation to give relevant information to a person who has approached them about VAD. This might include referring them on to a practitioner who is willing to participate in the process.

Some analysts claim that an obligation to inform a person about VAD in these circumstances undermines the point of conscientious objection. They claim that an obligation like this effectively prevents a practitioner from conscientiously objecting at all. On this view, the Victorian legislation has it right as, unlike WA, Victoria imposes no obligation to inform.

In my new paper, I challenge this claim. I argue that an obligation to inform a person inquiring about VAD of their options, and of practitioners who are willing to participate, does not undermine the point of conscientious objection. Under any legislation, an obligation to inform these people should be included.

In this blog, I explain how the debate about whether to make VAD legal sheds light on this issue.

To understand conscientious objection we need to understand the VAD debate

To understand the contentious issue of conscientious objection, we need to take a step back and notice an overlooked point about the VAD debate itself. There are some ethical issues about which people can reasonably have different views on grounds of personal conscience.

You may practice a religion, and feel that allowing another human being to take someone’s life is against your religion’s ethical code. Or you might feel that there’s a danger that we are disrespecting the miracle of life if we allow VAD. In parliamentary debates, this kind of view is sometimes expressed by MPs. In one debate, an MP said: “it is my understanding that God has a no kill policy”.

I may not share that view. Not only may I not believe in any religion, but even if I do, I may think that my religion’s ethical code should make an exception for people suffering unbearably. In our democratic society, we have come to tolerate people’s right to hold and practice certain beliefs that are not shared by everyone – provided that the practice of such beliefs does not unduly harm others.

We might call such beliefs reasonable in a wide sense. Although we may personally dismiss such beliefs as false or misguided (and so unreasonable in a narrow sense), they are views about which we can rationally have a debate.

By contrast, we could not rationally have a debate about whether people from certain backgrounds should be denied access to medical treatment. Fully informed parties in ideal conversation conditions would quickly see that such a proposal could not be sustained.

It is because some issues are genuinely contestable – are issues about which there can reasonably be a range of different views – that our democratic society has recognised the right of each and every one of us to make up our own minds about them, and act accordingly in our own lives. This is why we hear a lot about the importance of autonomy – of my right to decide for myself what beliefs I accept about, eg, how I should die.

It follows from this that, if the VAD debate could be decided on matters of personal conscience alone, the default position should be to make VAD legal.

This point has not been acknowledged by parliamentarians or by judges in case law. It is always assumed that there are just two opposing positions to this debate: one in favour of a continued prohibition of VAD and the other in favour of making VAD legal. It has been said repeatedly that both prohibition of VAD and making VAD legal holds one side of the debate hostage to the other.

But ‘making VAD legal’ here is ambiguous and conceals two possible positions. This is key to resolving the VAD debate.

To see the ambiguity, it is essential to remember that there are three types of legislation, not two:

  1. Prohibiting legislation, legislation that prohibits us from doing certain things, such as speeding or stealing.
  2. Permissive legislation, legislation that allows us to do certain things provided certain requirements are met, such as have IVF treatment.
  3. Mandating legislation: legislation that mandates that people do certain things, such as wear a seatbelt.

We could ‘make VAD legal’ by choosing either type 2 or type 3 legislation. It is actually only the prohibiting or mandating legislation that holds everyone hostage to one view. Type 2 permissive legislation does not, since it allows each of us to make up our own minds about whether we would want to access, e.g., IVF ourselves in our own lives. If we legalise VAD permissively (opt for type 2 legislation), nobody is forced to have it but, equally, nobody is forced not to have it. Whether we do or don’t is up to each of us.

Permissive legislation therefore best respects the views of both sides in this debate. On matters about which people can reasonably disagree, then, the default position should always be permissive legalisation. This is the only position that enables people to act in accordance with their own conscience, and avoids holding people with different beliefs hostage to one view. This point has been overlooked in this debate.

Conscience versus empirical matters

Of course, the VAD debate itself is not, and cannot be, decided on personal conscience alone: the State has an interest in protecting vulnerable people from accessing VAD when they shouldn’t (they are coerced, for example).

However, whether vulnerable people would access VAD by coercion is not a personal conscience matter. It is an empirical one. It is to do with whether we can provide adequate safeguards. It is a category mistake to regard this as a matter of personal conscience.

We should always keep this empirical issue separate from matters of personal conscience. Given the default position is that VAD should be legal, parliaments and case law under-appreciate the responsibility they have to investigate these empirical questions. Some recent English case law can be criticised on this basis.

Relevance of the three positions on VAD to the conscientious objection debate

If we turn now to the issue about conscientious objection, matters of personal conscience take centre stage in the debate.

Suppose that VAD is legalised, I am a practising doctor and I object to VAD on personal grounds. Since disagreement is reasonable and I have an obligation to my patients, conscientious objection should not impose costs on my patients.

It might be thought that, since I have an obligation to my patients, my own private views should not be relevant at all. This is true to an extent. The issue is about my patient and their wish for VAD, not my wish for it.

But I might have views about the proper role of the medical profession, and the compatibility of VAD with that role. That can be a matter of conscience, since others can reasonably disagree with me. A legal right of conscientious objection reflects the fact that people are free to act in accordance with their own personal beliefs and values about this matter, including in their professional lives.

The debate on conscientious objection is about the limits of this freedom. For some practitioners, not having to partake in the VAD process is not enough. Even the obligation to inform a patient of their options in respect of VAD makes them complicit. My new article explains why this is not the case.

In summary, I argue that, since VAD is an issue about which people can reasonably disagree as we saw above, a conscientious objector must reasonably acknowledge competing conceptions of the role of medicine, as well as competing views about VAD.

That being so, there must always be an obligation on a conscientious objector to at least inform a patient inquiring about VAD of their options, so that the patient can exercise their legitimate right to make up their own minds about what is appropriate for their own lives.

About Andrew McGee

Dr Andrew McGeeAndrew is an Associate Professor in the School of Law and is a member of the Australian Centre for Health Law Research and the End of Life Research Program. He has published articles in leading international medical law and ethics journals on palliative care, withholding and withdrawing life-prolonging measures and euthanasia, organ donation, and the ethics of abortion.

You can learn more about Andrew and his research and publications in his staff profile.

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