Mark Sneddon and Sharon Rodrick published in The Age on Victoria’s Voluntary Assisted Dying Bill 2017.
Victoria’s Voluntary Assisted Dying Bill 2017 provides a regime for a person to request the prescribing of lethal drugs which can be self-administered by the person (i.e. assisted suicide) or in some circumstances administered by a health practitioner (i.e. euthanasia). The Bill avoids talking about assisting a suicide and killing a person at their request by using the euphemism “voluntary assisted dying”.
This Bill may assist strong minded people who retain sound judgment and are in control of their carers and care environment to achieve a goal of dying by suicide at a time of their choosing, rather than in the ordinary course of an illness.
But it puts at risk many other vulnerable people. People who have “decision making capacity” to understand the requested drugs will kill them but whose judgment is impaired by depression or mood disorders. People who are not strong minded but frightened by their disease or failing mental powers or of “being a burden”. People whose apparently voluntary request for assisted suicide is manipulated by the undue influence, misrepresentation or unconscionable conduct of others including family and carers.
The Bill’s “Voluntariness” test is a paper safeguard and provides less protections than giving a guarantee
The euphemism “voluntary assisted dying” is used over 300 times in the Bill. But the only relevant safeguard in the Bill is that the two doctors involved are satisfied that the person making the request is “acting voluntarily and without coercion”. The Bill is completely silent on how doctors are meant to do that. Presumably the doctors can simply rely on the person’s statement in their written request that they are acting voluntarily.
Doctors are protected from all legal and professional liability if they comply with the Act’s procedures in good faith and without negligence, so there is little or no legal liability incentive for practitioners to go behind a requester’s statement that they are acting voluntarily. Hints of family or carer pressure can be left uninvestigated.
But we know from reports by the Royal Commission into Family Violence (2016), the Australian Law Reform Commission (2017) and Victoria’s State Trustees (2017), that abuse of the elderly, often by a family member, is increasingly common. The Royal Commission into Family Violence report shows that family violence against older people tends to be under-reported, and can be physical, psychological, emotional or sexual, and the majority of victims are women. State Trustees research is that 5% of Victorians over 65 have reported financial elder abuse (actual incidence is likely higher) and this manifests as misappropriation of funds and assets, or changes to a will, either fraudulently or through undue influence. While this Bill does not require doctors to actively consider elder abuse, the ALRC Report recommended a new statutory duty on agencies to make inquiries where they have reasonable grounds to suspect that a person is at risk of abuse or neglect and is unable to protect themselves from abuse or neglect because of their care and support needs.
The Bill seems oblivious to many rules of law designed to protect a person from the undue influence, misrepresentation or unconscionable conduct of another person. Before a bank accepts a parent’s guarantee of a loan to a son or daughter, the bank is required by law to provide warning notices and fact sheets in prescribed form to the guarantor. Most banks require parents who go guarantor to take independent legal or financial advice before signing to reduce the risk that they are being manipulated or pressured by their children. Nothing like independent advice is required under this Bill for a much more significant decision than giving a guarantee. Guarantees can be set aside by a court if they were obtained by undue influence or unconscionable conduct or misrepresentation. A suicide obtained by those means can’t be set aside. It seems that a decision to request assisted suicide will be subject to less legal scrutiny and protection than a decision to give a family guarantee.
Focus on Decision making capacity ignores soundness of judgment
By focussing mainly on decision making capacity of the person, the Bill ignores the effects of significant depression and mood disorders on a person’s ability to make sound judgments in their best interest. We would not think that it is acceptable for a depressed 25 year old to take a poison to kill themselves just because they had decision making capacity and understood the effects of taking the poison. We would ask how their judgment was affected by the depression and how that depression could be addressed. Just because a doctor predicts that the person has 12 months to live, should we no longer care about the person’s depression or soundness of judgment? The Bill should require that the person making the request must not have impaired judgment due to depression or mood disorders or other psychiatric conditions and require a separate qualified psychiatric assessment to ensure that is the case.
No safeguards at all at the time of ingesting the drugs
There are other issues with the eligibility criteria but the most glaring one is that in the usual case where the drugs are to be self-administered by the person there are no checks or safeguards at the time the drugs are taken. No doctor or third party needs to be present. No-one checks at the time the drugs are taken whether the person has decision making capacity or is seriously depressed or is acting voluntarily and without family or carer pressure or even whether the person administers the drugs themselves or someone else forces administration.
This Bill needs a major rethink to protect the vulnerable.
Mark Sneddon Executive Director Institute for Civil Society and Adjunct Professor of Law Monash University
Dr Sharon Rodrick Research Analyst, Institute for Civil Society and Senior Lecturer in Law Monash University (Views are personal and do not represent Monash University)
See https://www.alrc.gov.au/publications/elder-abuse-report (Recommendation 14)