Sixty-Six Steps to Assisted Dying
We think that this model, which we acknowledge is the most conservative model for assisted dying in the world, is the right model for Victoria (Professor Brian Owler)
Claiming a world’s best regulatory document inevitably recalls Bob Carr’s comment in the course of the debate on an Australian bill of rights. Carr commented that, on reading, the world’s most impressive charter of rights came from the USSR in the mid 1930s. Recently, the difference between regulation and practice in banking and irrigation has made news. It’s all about compliance. How well will the 66 recommendations in the world’s most conservative model for assisted suicide accomplish compliance? This paper will briefly consider some of the recommendations, especially in the context of other regulatory systems.
Overseas experience of regulation.
A 2012 Lancet article reported that 23% of Dutch euthanasia deaths were unreported. In 2005, 560 of 2410 Dutch euthanasia deaths were undertaken without explicit consent.
In Belgium, decriminalization of assisted suicide was intended to regulate practices, illegal, but not uncommon. The current Victorian situation may be similar as the Select Committee noted that 14% of NSW and ACT doctors were reported to have taken steps to hasten death. Transparency was argued, in both jurisdictions, to be preferable to continued unabated illegality. However Smets et al. discovered that, following decriminalisation, unreported procedures continued frequently, only 549 of 1070 consecutive cases being reported. Euthanasia was undertaken in the absence of a request in 66 out of another series of 208 cases (Chaembaere et al.)
A review of Oregon assisted suicide highlighted lack of oversight of abuses, notwithstanding impeccable regulation (Drum et al.)
A British court rejected an individual’s application for assisted suicide, despite acknowledging that this decision infringed autonomy, because it considered that effective regulation of the practice was not feasible.
Availability of ‘assisted dying’ is recommended (2) for people with incurable conditions expected to cause death within weeks or months, a requirement immediately softened to but not longer than 12 months. Given the inherent imprecision in long term prognoses, 52 weeks represents rapid shifting of goalposts. So much for the reassuring ring of ‘weeks’.
Specification of incurable rather than untreatable to qualify requires comment. Many incurable conditions are responsive to treatment which significantly improves life experience. The condition is specified to cause suffering which cannot be relieved in a manner the person deems tolerable. This represents bracket shift which required a decade in the Netherlands. Dutch legislation originally precluded refusal of treatment in order to achieve eligibility although accepting it.
Decision making capacity and mental illness are concerns meriting specialist consultation (3, 4, 5). Psychological conditions, in particular depression, are not considered separately. Once again, the report leapfrogs overseas bracket shift. Belgium, Netherlands and Oregon originally mandated psychiatric/psychological consultation if a person’s request may have been influenced by depression.
The association between depression and unassisted suicide provides a major basis for suicide prevention initiatives. Substantial published evidence demonstrates that requests for ‘assisted dying’ are frequently withdrawn if clinical depression is treated. The Select Committee commented: Patients died without having received assessment for depression or dementia. (p182.) As frequently happens, overseas legislated requirements for psychiatric consultation have been increasingly ignored as compliance became fictional.
No Oregon patient received psychiatric assessment in 2007. In Belgium, always a leader in bracket shift, depression has morphed from being a constraint on assisted suicide to become a justification for it. More than 40 people, many in their 20s or 30s, are processed annually.
Medication requirements for patients who can ingest (suicide) will differ from others requiring medical administration (euthanasia). The report is coy about this distinction, apart from acknowledging (39) that some practitioners may be prepared to assist at suicide but draw the line at euthanasia. Although ample evidence already exists from jurisdictions in which assisted suicide or euthanasia are commonplace, the report recommends (64) collaboration with a university to research best practice. Why not follow a 2017 NZ parliamentary committee which addressed this issue adroitly by interviewing a veterinarian?
A traditional means of suicide has entailed ingestion, of large barbiturate overdoses, using material ‘stockpiled’ from legally processed prescriptions. Physician assisted suicide as currently practiced in Victoria is, one suspects, most commonly accomplished using an overdose of a sedative not requiring special authorisation. The difference between its use for sedation and for suicide is likely to be a dosage one.
More recently, one more effective barbiturate, unavailable on prescription, has become popular. In contrast, use of sedation alone is increasingly being abandoned because of prolonged duration and less than 100% success. Overseas experience suggests that the unreliability of sedative overdose, will soon be considered medical negligence. Its replacement is a drug combination to sedate and then paralyse respiration. Inconveniently, the close similarity of the required Canadian protocol to the US capital punishment strategy has led the pharmaceutical industry to proscribe supply.
Pharmacists’ responsibilities when filling a prescription, attaching comprehensive information to the locked box and requiring the return of unused medication are specified (29, 31-33). Comparison with other jurisdictions indicates that use of a locked box is an original idea. As discussed below, the presumption that this will prevent coercion is questionable. Oregon physicians are responsible for return of unused medication but this is said rarely to be complied with.
Is coercion a concern?
Recommendations such as 10 & 11 assert that coercion into suicide will be impossible. Recommendations requiring witnessing requests and written confirmation are sound, as far as they go. Nevertheless, opportunities for coercion remain at the implementation stage.
A witness is recommended (34) if the doctor attends. What about the situation when an older person opts for medication in the privacy of home? Delivering medication in a locked box (33) won’t provide protection if an elderly person feels obliged not to impede family members’ accelerated inheritance.
Medical practitioner protection and liability.
Criminal liability for assisted suicide/euthanasia would cease. New offences are recommended (55-57) for inducing anyone to request death, falsifying records or euthanizing someone lacking decision-making capacity.
These new offences contrast with 2015 Canadian regulations. That regulatory model specifies that physicians must strictly follow the law to avoid unacceptable abuses. Any physician providing euthanasia except as provided by law can be charged with murder or manslaughter. Contrast this punitive caution with recommendation 54 providing clear protection for health practitioners who act in good faith and without negligence to facilitate access to voluntary assisted dying under the legislation.
Prohibition of falsifying records (57) sits uncomfortably with: the death certificate of a person who has accessed voluntary assisted dying identifies the underlying disease, illness or medical condition as the cause of death (41). Having doctored the death certificate, the following recommendation (42) reads: accessing voluntary assisted dying should not affect insurance payments or other annuities. This combination ensures that the usual consequence of suicide invalidating a life assurance policy will not cut in. All in a good cause.
Could this preservation of inheritance encourage coercion ?
Perhaps the most conservative model generates more questions than it answers.