A SUBMISSION IN RESPONSE TO“VOLUNTARY ASSISTED DYING: A PROPOSAL FOR TASMANIA”

VOLUNTARYASSISTEDDYING A FLAWED PROPOSAL FOR TASMANIA

PREPARED BY THE ANGLICAN CHURCH(DIOCESE OF TASMANIA)

MARCH 2013

This submission is a response to the consultation paper Voluntary Assisted Dying: A Proposal forTasmania which was released by the Premier, Lara Giddings, and the Leader of the Greens in theTasmanian Parliament, Nick McKim, as Private Members.

This submission is made by the Anglican Diocese of Tasmania. Correspondence should bedirected to the office of Bishop John Harrower:

bishop@anglicantas.org.auGPO Box 748Hobart, TAS 7001(03) 6220 2020

Terminology

“VAD” “Voluntary Assisted Dying” the form of euthanasia being proposed in theconsultation paper.

“The VAD Paper” The consultation paper, Voluntary Assisted Dying: A Proposal for Tasmania

“The Members” The Hon. Lara Giddings and The Hon. Nick McKim who are making thisproposal as Private Members of the Tasmanian Parliament

'The 1998 Inquiry' The inquiry made by the Community Development Committee of the Houseof Assembly of the Tasmanian Parliament which produced Report on theNeed for Legislation on Voluntary Euthanasia in 1998

Scope

The consultation paper Voluntary Assisted Dying: A Proposal for Tasmania outlines a proposalwhich would introduce state-sanctioned euthanasia into the State of Tasmania. This proposalwould allow Tasmanians in certain circumstances to have their life ended by the administration oflethal medication.

The Voluntary Assisted Dying (VAD) paper, while seeking feedback on one particular system ofeuthanasia, presumptively ignores the principle questions of efficacy and benefit. The discussionquestions included in the paper make this presumption.

It is the principled issues which are of greater concern. This submission therefore does not interactwith the questions presented in the VAD paper, except by way of considering the flawed premiseon which they are based. However responses are invited to “any other aspect” of the VAD proposaland it is this, the broader question, which is addressed in this submission.

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SUMMARY

1 The VAD Paper: Unashamedly Prejudiced.......................................3 1.1 Ignoring The Main Question.......................................................................................3 1.2 Double Standards.......................................................................................................3 1.3 A Biased Process........................................................................................................4

2 The Anglican Church as Respondent..............................................5

3 Flaws in The VAD Philosophy........................................................6 3.1 Misrepresenting Compassion, Mishandling Autonomy..............................................6

Autonomy Violating Life.........................................................................................7Simplistic About Suffering......................................................................................8

3.2 Destructive Implications..............................................................................................9Implied Value Judgements......................................................................................9Cruel Real Choices...............................................................................................10

4 Flaws in the VAD Paper...............................................................11 4.1 Unquestioning Use of Sources.................................................................................11 4.2 Misused Data, Poor Logic.........................................................................................11 4.3 Opposing Arguments Misunderstood.......................................................................12

5 Flaws in the VAD System............................................................14 5.1 Subjective Safeguards..............................................................................................14 5.2 Unrealistic Criteria....................................................................................................14

The Coercion Criteria - Voluntariness...................................................................14The Inability to Choose Criteria - Mental Competence.........................................15The Not Sick Enough Criteria - Nature of Illness...................................................15

6 Recommendations......................................................................17 6.1 Recommendation #1 – Withdraw the Proposal........................................................17 6.2 Recommendation #2 – Improve the Health System, Especially Palliative Care......17 6.3 Recommendation #3 – Improve Awareness About End Of Life Care.....................18

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1 THE VAD PAPER: UNASHAMEDLY PREJUDICED

1.1 IGNORING THE MAIN QUESTION

Ms. Giddings and Mr. McKim (“the Members”)propose a system of euthanasia which theyhave called “Voluntary Assisted Dying”(“VAD”). This proposal has beenencapsulated in a consultation paper (“TheVAD Paper”). It is an undisputed fact that thispaper is prejudiced in favour of euthanasia.

A pre-judgement has been made on thefundamental question of whether or not asystem of euthanasia should be introducedinto Tasmania.

One of the proposing members, Mr. McKim,has been quoted in the media as saying

''Rather than seeking a discussion onwhether or not we should introducevoluntary euthanasia, it will beencouraging discussion around how itshould be done...

''We will then draft and table legislationthat is appropriate for Tasmania, whichgives it the best chance of passing theParliament.''1

It is clear that the Member has made apredetermination that euthanasia should beintroduced to Tasmania. He is only open todiscussing the form it might take.

The foreword to the VAD paper echoes thissentiment and relegates the fundamentalquestion to the merely “theoretical” while thesecondary question is characterised as“practical.”2

The fundamental question is about whether ornot the state should be an active agent in theintentional killing of any of its citizens. This isvery much a “practical” question. It is a matterof life and death!

The prejudice of the VAD paper is apparent ina number of ways

1. Unquestioning use of sources.

2. The misuse of data and poor logic.

3. Misunderstanding the opposingarguments.

4. Unsound notions of human life, thenature of care and compassion, andthe role of government in society.

These areas of concern will be consideredthroughout this submission.

1.2 DOUBLE STANDARDS

It should be noted that the Members arederisive of those who offer arguments againsttheir pre-judged position. They make anumber of accusations regarding the quality ofthe argument and material apparently used bythose who disagree with them.3

Such claims are impossible to refute becausethe Members do not apply these accusationsspecifically. There are no substantialquotations or citations of the errors they havefound so that others may consider the veracityof their judgement.

Their accusation of poor standards cantherefore not be tested. This in itself is anextremely poor standard to set and it isjustifiable to consider their accusation ashypocritical. The Members seem to setstandards which they do not apply tothemselves. Double standards are destructiveto the health of dialogue.

Without being able to address the Membersspecific concerns through clarification andelucidation this submission must concentrate

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on highlighting the weaknesses in theMember's position.

1.3 A BIASED PROCESS

The definitive examination of euthanasia inthe Tasmanian Context is the inquiry madeby the Community Development Committee ofthe Tasmanian House of Assembly into “theNeed for Legislation on VoluntaryEuthanasia.” This inquiry reported in 1998.Its findings are based, in general, on athorough and balanced consideration.

A key principle articulated by the 1998 Inquirywarrants particular emphasis. The Committeefound that “the obligation of the state toprotect the right to life of all individuals equallycould not be delivered by legislation that isbased on subjective principles.4

The VAD proposal, at its core, depends onsubjective principles. This is an example ofhow the VAD proposal is directly antagonisticto a number of the in-principle findings of the1998 Inquiry.

Rather than seeking to engage with this basicprinciple of governance, the Memberspresenting the VAD paper simply dismiss theconclusions of the 1998 Inquiry as out of date5

and simply assert that there is no need for anin-depth inquiry.6

They consider the rightness of euthanasia tobe self-evident. They are willing to bypassproper scrutiny and present the VAD proposalwith tones of fait accomplis.

There are more appropriate ways for theMembers to advance their cause. Theappropriate way to revisit the findings of aParliamentary Committee with new evidenceis to re-form an Inquiry, with similar terms ofreference, and with similar authority, to reviewthe findings in the light of that new evidence.

The VAD paper could be taken as an

appropriate submission to such an inquiry,were it to be held. But it cannot and shouldnot be held to be on a par with a properinquiry. Sadly, the VAD paper is not the fruit ofa balanced consideration, and is of sufficientqualitative inferiority as to fall well short of thatmark.

Since 1998 there has been no equivalentinquiry. The 2009 inquiry by the JointStanding Committee on CommunityDevelopment into the euthanasia billpresented in that year did not, as theMembers themselves observe, “resolve thesubstantive issues”7

To advance simply through a call forcomments on a non-authoritative paperwritten by Private Members of Parliament witha clear prejudice on the issue at hand issimply not adequate.

By doing so, the Members are failing to takethe issue seriously, they are failing to eitherunderstand or respect the views of those whodiffer from them, and they are embracingimposition rather than conversation. This isthe path of belligerence rather than civildiscourse.

The Members must be under nomisapprehension here: the burden of proofrests with them. The possibility ofimplementing euthanasia in Tasmania is not acertainty requiring final obstacles to beovercome; it is a significant change in thefundamental relationship between the stateand its citizens. Such ground breaking changeshould not be considered without care andreasoned justification.

The VAD paper neither demonstrates thenecessary care, nor makes the necessaryjustification for such change.

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2 THE ANGLICAN CHURCH AS RESPONDENT

The Anglican Diocese of Tasmania is a part ofthe Anglican Church of Australia and is aChristian religious body geographicallycoterminous with the State of Tasmania.

The Diocese of Tasmania consists ofapproximately 50 parishes and districts8 aswell as operating in areas of special needincluding hospital and prison chaplaincies.

Over 128,000 Tasmanians (26% of thepopulation) identify themselves as Anglican.9

Anglicans are represented in virtually everyaspect of society and in every profession.

Anglicans in Tasmania are well aware of therealities of human decline and death. Thisawareness comes from daily life, the workplace experience of Anglican citizens involvedin medical and related professions, andengagement with the hurting and bereavedthrough pastoral care and the exercise ofChristian ministry.

In 2012 the Synod of the Diocese ofTasmania, the main instrument of authority forthe diocese, consisting of over 200 lay andclerical members from across the Statepassed the following motion:

...that this Synod, recognising thelikelihood of legislation being broughtto the Tasmanian Parliament thatwould implement Assisted Suicide(also called 'euthanasia') reaffirms thatany such legislation is unsafe,unnecessary and untested; beingdetrimental to a healthy society and thewell being of the vulnerable and elderlyin our society: and

(a) calls upon the members of theTasmanian Parliament to oppose anysuch legislation;

(b) requests the Bishop to provide to

Parishes relevant information aboutthis issue, including the opportunitiesfor the Christian voice to becommunicated to Parliament; and

(c) requests the State Government todevote more resources to the provisionof palliative care throughout Tasmania.

This motion reflects the mind of Synod andreaffirms the long-held position of the AnglicanChurch with regard to systems of euthanasia.

This position was clearly articulated to the1998 Inquiry:

The Anglican Church is not opposed toallowing people to die when there is nopossibility of that person recovering tolive a meaningful life. Nor is the Churchopposed to the administration of drugsfor the relief of pain but which may alsohave the effect of shortening life.

The Church is opposed to activeeuthanasia, that is, when other peopledecide to terminate a person's lifeeither against the will of the person,without their consent or where a personhas requested assistance to die.

Three basic theological themesunderpin the church's concerns. Thefirst is the Christian affirmation of thesanctity of life. Secondly the churchaffirms that all of life is connected orrelated and denies the radicalindividualism and autonomy whichunderlies much of the argumentsupporting active euthanasia. Thirdly atheological view of suffering has animportant place in the discussion.10

Nothing has occurred since the 1998 Inquirythat would suggest a need to change thisposition.

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3 FLAWS IN THE VAD PHILOSOPHY

3.1 MISREPRESENTING COMPASSION, MISHANDLING AUTONOMY

If there is a governing principle enshrined inthe VAD paper it is articulated by a simpleheading: “A compassionate response tosuffering: choosing the manner and timing ofone's death.”11

While such a statement has a sense ofpropriety and virtue it disguises a concerningmisunderstanding of the nature ofcompassion, and a misappropriation of thevalue of autonomy.

Moreover, it demonstrates a carelessoversimplification by the Members. TheMembers’ assertion is self-contradictory withinthe framework of the VAD proposal. TheMembers cannot, on the one hand, assert“choosing the manner and timing of one'sdeath” as the touchstone of compassion, andthen on the other, spend the bulk of theirproposal considering the criteria which wouldlimit eligibility for exercising that choice!

While it is gratifying that the Members are notproposing a laissez-faire “euthanasia-on-demand” model, they cannot give anadequate philosophical boundary to theirassertion that compassion equals autonomy.They are therefore ill prepared to give adefence, (beyond mere political practicality ofnot scandalising the populace with somethingtoo radical), as to why they have included anyof their criteria for restricting the eligibility ofpeople for VAD.

After all, if VAD expresses autonomy whichexpresses compassion; why should anyonebe prevented from accessing it? On whatprincipled basis do the Members proposesuch discrimination?

If the Members cannot clearly articulate andgrapple with these fundamental concerns,how can there be any confidence in theconceptual integrity of the VAD proposal atall?

Through VAD the State of Tasmania would berecognising personal autonomy (the “choosingthe manner and timing of one's death”) asabsolute, and its restrictions, while presentedas apparently necessary, would be basicallyartificial. It is therefore extremely unlikely thatany subsequent review of VAD wouldstrengthen the restrictions. Rather, theloosening of eligibility requirements, for whichthere is clear prima facie evidence in otherjurisdictions, would be almost certain inTasmania.

Prima facie concerns from other jurisdictionsinclude the following examples:

• In January 2013, the death by lethalinjection of two middle-aged twins inBelgium who did not suffer a terminalillness, but who were going blind.12

• A current debate, also in Belgium, toextend the eligibility for euthanasia tominors and to those suffering senility,being argued for on the basis that it is“happening already.” This argument isidentical to that used by the Membersproposing VAD for Tasmania.13

• The approval of euthanasia for aperson with severe senility in TheNetherlands in November 2011, in theface of a requirement for mentalcompetence.14

Tasmanians aspire to the effective exercise ofcompassion and care towards those who arein vulnerable circumstances.

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The Members' philosophy, in its mishandlingof the societal virtue of personal autonomy,does not advance this aspiration, it hinders it.

AUTONOMY VIOLATING LIFE

A tolerant and democratic society is shapedby a number of values and rights. Somevalues are held to be absolute; we associatethese with “human rights.”

The VAD paper mishandles one particularvalue: personal autonomy. To be sure,personal autonomy is something to be valuedin society. Freedom of movement, freedom ofconscience, freedom of religion, freedom ofassociation and other freedoms all depend onthis value.

Personal autonomy is not, however, anabsolute value. People have freedom tochoose, but choice is to be exercised within acontext of obeying the law, respectingrelationships and other people, and beingconsiderate of community norms andexpectations.

This is a basic understanding of humancommunity. It has been articulated in manyways: For example, “Do what you want,unless it impacts others”, and even, “Do untoothers as they would do unto you.”

Human beings are not simply geographicallycoincidental individuals. We live in community,in which interdependence and mutuality aresimple facts of life. Without thisunderstanding, the overemphasis of autonomywould move society away frominterdependence and towards a rampant(some would say totalising) individualism.

It is inappropriate to speculate on the personalbeliefs of the Members. Nevertheless, suchindividualism is apparent in this and otherareas of social reform that they haveproposed. Before they quickly warn othersof imposing personal philosophical

frameworks, they should consider their ownneutrality.

The VAD proposal fails to recognise that theprovision of euthanasia does not just affectindividuals, but through humaninterdependence, it affects us all.

For instance:

• The decline and death of an individualaffects many who are connected tothat individual, particularly the next ofkin. The VAD proposal only pays lipservice to these relationships.15

Neither does it recognise the possibilityof these relationships presenting anelement of coercion onto the patient.

• The request for euthanasia cannot bea purely private matter. It is a requestby someone for others to be activeagents in the administration of lethalmedication. Moreover, thedetermination of whether such arequest will be heeded would be made,not by the individual, but by others.The VAD proposal so emphasisesproviding an individual with the optionto receive VAD that it fails to recogniseor appreciate the effect on thesurrounding relational and professionalconnections.

• The introduction of euthanasia doesnot just impact the individual, but thewider public. The VAD proposal makesmuch of the fact that no one will becompelled to either request or providevoluntary assisted dying. However, theexistence of VAD would change thevery nature of the health system.Would a citizen be able to availthemselves of hospital or other medicalcare in which they could be certain thata request for euthanasia would berefused? Under the VAD proposal,those who appreciate and desire ahealth system that would protect their

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life, being even protected fromthemselves, would no longer have thatoption. By giving the VAD choice toone individual the options are reducedfor others.

It appears that the VAD proposal does notengage with the reality of how communitiesand relationships actually work.

Above all, however, the VAD papermishandles the value of personal autonomyby placing it over and against a morefundamental value: the “inviolability” or“sanctity” of life.

As a Christian organisation the AnglicanDiocese of Tasmania embraces the sanctity oflife as a thoroughly biblical notion. We holdthat human beings are made in the image ofGod and every person therefore has absoluteinnate value and meaning.

The Members proposing VAD are quick tonegate the value of the sanctity of life as aninappropriately religious argument.16 But thatis a position that is is both credulous andspecious. The “sanctity of life” is a value thatis embraced by billions of people, acrossdifferent religions and philosophies, includingthat of secular thought.17

By so quickly relegating this value, theMembers have embraced a false dichotomythat places the right to “personal autonomy” atodds with the inviolability of life.

The relegation of the inviolability of life leadsaway from compassion.

Consider the characteristics of healthy,compassionate society: Personal autonomy isnaturally restricted and respects theinterdependence of community, and the stateis bound to never violate life itself. In such asociety compassion can exist at the deepestlevel.

Conversely, a society that embraces absolutefree choice, and does not guarantee to protect

the inviolability life, is clearly on a negativeand uncaring path in which compassion playsno principal part.

The Members speak shallowly about the deepthings of life.

SIMPLISTIC ABOUT SUFFERING

True compassion responds to suffering. Truecompassion acknowledges theinterdependence of humans in community; thesuffering circumstances of one person leadsto a response from others.

Forms of suffering at the end-of-life includephysical pain, and also existential pain whichinvolves the loss of meaning or sense ofworth.

Suffering at the end of life can involvephysical pain. A compassionate response tophysical pain is to provide for the relief of thatpain. This is best provided through medicalservices that specialise in the relief of pain.This speciality is palliative care.

In order to justify the VAD proposal theMembers have attempted to demonstrateshortcomings in palliative care. Theyoverstate their case. The specialists with theexpertise necessary to make such anassessment are quite clear: It is possible toeffectively control pain, although some formsof pain control, in a minority of situations, mayrequire a significant reduction in alertness orconsciousness..18

Palliative care is the best and most effectiveway of responding compassionately to thosewho are in physical pain and it should beproperly resourced. This resourcing is whatour State Government should be governing.

Suffering at the end of life can also relate toexistential notions: “quality of life”, dignity, and

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meaning. Proponents of euthanasia oftenrefer to circumstances where life has become,in their view, “meaningless” or lacking in“dignity” or “quality.”

Just as the compassionate response to thesuffering of pain is pain relief, thecompassionate response to the experience ofmeaninglessness and indignity is to affirmpersonhood and innate value, and to do soirrespective of a person's circumstances. Acompassionate response seeks to articulateand communicate meaningfulness and worthin all circumstances.

In contrast, the VAD proposal involves adetermination that a person has “enough”futility or lack of quality. This is a callousjudgement on a category of citizens.

3.2 DESTRUCTIVE IMPLICATIONS

The impact of a regime for euthanasia cannotbe confined to the realm of independentchoice. When considered in the real world,rather than in isolation, some negativeimplications are apparent.

Two examples of this are considered here.These do not exhaust the concerns, butillustrate them.

The first example considers the implied valuejudgements inherent to euthanasia. Thesecond example considers euthanasia as itinteracts with economic realities.

IMPLIED VALUE JUDGEMENTS

The present situation, in which euthanasia isprohibited, expresses equality. The state willnot be an agent in the death of any citizen. Infact, the state will strive to protect the life of allits citizens equally.

The implementation of euthanasia creates twocategories of citizens. The first category ofcitizens – those who are not eligible foreuthanasia – enjoy the current protections.

The second category of citizens – those whoare eligible for euthanasia – have a modifiedform of protection that is dependent uponsubjective assessment of wellbeing.

The demarcation connotes a value judgement.Those who are of the eligible category areconsidered to be suffering enough, or lackingenough dignity, that the state would be willingto terminate, not protect them.

“Eligible for eutthanasia” would be anabhorrent stereotype engrained into the veryrelationship between state and citizens as itcommunicates the negative and deadly valuejudgement: “Terminally ill people lack dignity”;or “Those suffering great pain do not haveanything to live for.”

It is not surprising that many disability rightsgroups consider euthanasia to be deleteriousto their efforts to be included in society as fullcitizens, enjoying the dignities and protectionsof all.

The American rights group Not Dead Yetmakes the following points in response to thesituation in Oregon:

...Disability concerns are focused onthe systemic implications of addingassisted suicide to the list of “medicaltreatment options” available toseriously ill and disabled people....

The disability experience is thatpeople who are labeled “terminal,”predicted to die within six months,are – or will become – disabled...

Although intractable pain has beenemphasized as the primary reason forenacting assisted suicide laws, the topfive reasons Oregon doctors actuallyreport for issuing lethal prescriptionsare the “loss of autonomy” (89.9%),“less able to engage in activities”(87.4%), “loss of dignity” (83.8%), “lossof control of bodily functions” (58.7%)and “feelings of being a burden”(38.3%)... These are disability issues...

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In a society that prizes physical abilityand stigmatizes impairments, it’s nosurprise that previously able-bodiedpeople may tend to equate disabilitywith loss of dignity. This reflects theprevalent but insulting societaljudgment that people who deal withincontinence and other losses inbodily function are lacking dignity.People with disabilities are concernedthat these psycho-social disability-related factors have become widelyaccepted as sufficient justification forassisted suicide...

In judging that an assisted suiciderequest is rational, essentially, doctorsare concluding that a person’s physicaldisabilities and dependence on othersfor everyday needs are sufficientgrounds to treat them completelydifferently than they would treat aphysically able-bodied suicidal person.19

CRUEL REAL CHOICES

The Members trumpet increased choice as avirtue of VAD. However, real choices takeplace in the real world.

VAD would ostensibly increase choice forpatients. However, if currently implemented inTasmania, the VAD choice would not be thechoice between either lethal medication oreffective palliative care; it would be a choicebetween lethal medication and poorlyresourced, geographically distant palliativecare after a long wait for therapeutictreatment. The stark reality of this choice, initself, lacks compassion.

VAD would also increase choice for theproviders of health services in Tasmania. Theimplementation and administration of VADwould require decision-making and resourcingby, presumably, the Department of Health andHuman Services. It is simply a matter ofeconomic reality that the provision of VADwould have an opportunity cost in thereduction of resources for remedial and

palliative medical services. Promises by theMembers that reductions would not occur areignorant of the state’s scarce financialresources and resultant pressures on thestate’s health budget.

Those suffering at the end of life in Tasmaniashould find compassion in well-resourced painrelief and palliative care. It is notcompassionate to respond by additionallypressurising the Tasmanian health systemwith a proposal that is ostensibly a cheaperand easier option.

The Members have not addressed thisconcern professionally. They have made noeffective financial analysis. They havepresented no realistic costing – either relativeto the health system or in absolute budgetaryterms. There has been no real attempt toconsider economic circumstances and to theextent to which they are coercive, particularlyin remote, rural, and underprivileged areas ofTasmania.

A clear commitment to the provision ofpalliative care is needed in Tasmania. Whilethere is a demonstrable lack of expedientprovision for medical treatment – evenremedial treatment – the proposition of asystem of euthanasia is not only lackingcompassion but bordering on the abhorrent.

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4 FLAWS IN THE VAD PAPER

4.1 UNQUESTIONING USE OF SOURCES

In the formulation of the VAD paper theMembers cite their reliance on a number ofsouces:

...the Royal Society of Canada, theCommission on Assisted Dying in theUnited Kingdom, the select committeereport undertaken by the NationalAssembly of Quebec and the judicialdecision in Carter v. Canada20

There are other commentators that havepointed out the flaws21 in a number of thesesources. This submission does not claim tohave the expertise to assess the veracity ofthese claims. The burden of due diligence,however, belongs to those who are proposingVAD and when sources are called intoquestion, they should be assessed.

There are certainly questions surrounding theuse of the judicial decision in Carter v. Canadain the VAD paper. Virtually all the referencesto this case appear to be recitations of pro-euthanasia expert witnesses such as AnnJackson22. Moreover, the case itself is beingappealed by the Government of Canada on anumber of issues, including constitutionalityand the proper role of government.23 Theseare considerations which the Members shouldclearly take into account.

There are concerns, also, with the sourcesused in the VAD paper to back up the claimthat euthanasia has popular support.

The Members claim “no matter how thequestion is asked, in reputable opinion pollsthe result is consistently and overwhelminglyin support of a last resort option for the

patient’s doctor to be legally allowed toprovide assistance to help the patient die.”24

The sources that are cited consist of two pollscommissioned by pro-euthanasia “Dying WithDignity” groups25 that ask the same questionin a form that communicates an assumption inits premise.

There is no consideration of situations whereeuthanasia frameworks have been rejectedwhen placed before a popular vote, mostrecently in the American State ofMassachusetts.26

Similarly, while attempting to assert that end-of-life situations currently exist in a place oflegal uncertainty the Members are ready toquote from sources that they might otherwisereject as “unsubstantiated anecdote”.27 Butthey pay no heed to the finding of the 1998Inquiry which recognised with great certaintythat:

...a doctor was not legally culpable formanslaughter or murder if his intent inwithholding or withdrawing medicaltreatment from a patient whosubsequently died was to relieve thepatient of the burden of futile treatmentin accordance with prudent medicaltreatment. Likewise the administrationof sedative and analgesic drugs toterminally ill patients for the relief ofpain and suffering even when it isforeseeable that such action willshorten life is not illegal whilst theintent is to provide palliation and not todeliberately kill the patient.28

4.2 MISUSED DATA, POOR LOGIC

There are number of places in the VAD paperwhich exemplify the Members' own

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accusations of “cherry-picking of informationin a piecemeal way providing a distortedpicture” and logical fallacies.

An example is their use of Kuhse et al.29

As an aside, it should be noted that this reportwould be rejected as being “from the 1990s...now well out of date”30 if it had been used bythose who disagree with the Members'position.

The Kuhse report is used to justify theassertion that euthanasia is an existingwidespread unregulated practice. The datafrom the Kuhse report is presented as if toshow that something in the order of 30-60% ofdeaths involve intentional ending of life.31

In reality, if the data are considered: 30.9%are “double-effect” deaths from palliative carein which pain relief may have hastened death;this is a practice not under dispute. 28.6%relate to the removal of futile treatment, whichalso is indisputably good current practice.3.5% relate to unrequested involuntaryeuthanasia, which is a situation the VADproposal does not wish to promote. Thisleaves only 1.8% of deaths as of realrelevance to the VAD proposal. This is avastly different picture to what is presented bythe Members.

Another example is an attempt to justify theassertion that euthanasia does not lead to abreakdown in the doctor-patient relationship.The Members appeal to an absence ofinformation: “We are not aware of anyevidence that this damage has occurred...”32

The data they do provide relates tocomparative expressions of trust acrossprofessions. This does not consider changein doctor-patient relationships across the timeof introducing euthanasia. Nor is there any in-depth investigation into data such as changesto hospital admittance rates, or qualitativeconsiderations of how different areas of thehealth system were considered by thepatients. An argument from silence is the

chief of fallacies.

Finally, there is a strange logic that putsforward two apparently mutually exclusiveassertions. Firstly, that doctors are currentlyproviding euthanasia33 despite the currentprohibition. Secondly, that “effectivesafeguards can be achieved.”34

There is a clear sense in which both cannotbe true. Safeguards as an effectivemechanism rely on the adherence of medicalprofessionals. If medical professionals areunwilling to adhere to current safeguards, whywould we expect adherence to the proposedsafeguards?

Similarly, the conclusion that currentunregulated euthanasia should lead tolegalised regulation is ill-conceived. It couldmore easily be concluded that currentunethical behaviour requires a strengtheningof accountability practices.

4.3 OPPOSING ARGUMENTS MISUNDERSTOOD

The VAD paper references four argumentsagainst euthanasia reform; the sanctity ofhuman life, the 'slippery slope' argument, theeffect on the doctor-patient relationship andthe adequacy of palliative care.

As has been noted earlier in this submission,the concept of the sanctity of human life is tooquickly dismissed as a non-secular argumentand the inadequacies of palliative care areoveremphasised by the Members.

The doctor-patient relationship issue is onlyconsidered in minimalistic terms, and, asmentioned in the previous section, anargument from silence is employed.

The consideration of the “slippery slope”argument is also flawed in the VAD paper inthat the Members fail to grasp the depth andbreadth of the argument.

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For instance, the concern that “weakermembers of society would be made morevulnerable”35 is handled by employingstatistical consideration of euthanasia rates.36

The concern, however, cannot be addressedby such data. The slippery slope argumentdoes not rely on a notion of “vulnerable” thatfits the stereotype of elderly, infirm, or poor.Indeed, one could argue that a poor personwith strong family ties is less likely to bevulnerable to coercion than the rich personwith a family willing to fight over the imminentinheritance.

In another example, the VAD paper posits astrange hypothesis about the concern thatlegalised voluntary euthanasia would lead toinvoluntary euthanasia. They posit that thisargument can be disproved if it can be shownthat involuntary euthanasia exists in placesother than those with a legalised euthanasiaframework.37 This misunderstands thecausation at work.

The argument is not that legalised voluntaryeuthanasia directly causes involuntaryeuthanasia. The causes of medical killingwithout consent are many and varied, derivingfrom specific circumstances and contexts.The argument more readily posits thatlegalising voluntary euthanasia changes theenvironment such that cases of involuntaryeuthanasia are harder to prevent and harderto scrutinise.

Other aspects of the slippery slope argumentwhich do not deal with voluntariness orcoercion, such as the concern aboutbroadening the eligibility criteria, are notproperly considered.

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5 FLAWS IN THE VAD SYSTEM

5.1 SUBJECTIVE SAFEGUARDS

The bulk of the VAD paper is a presentation ofa particular system of voluntary euthanasia.

No system of voluntary euthanasia can betruly safeguarded. Systems for euthanasiaare literally fatally flawed. Euthanasiaremoves the state’s responsibility to guard theabsolute inviolability of its citizens’ human life.That fatal flaw cannot be fixed by mitigatingmechanisms such as so-called “safeguards.”

Any system of euthanasia that purports to beanything more than “euthanasia on demand”must propose criteria by which a person mightbecome eligible for euthanasia. The VADproposal is shaped around the considerationof certain criteria such as age, residency,mental competence and medical condition.

The VAD paper therefore raises questions thatare necessarily moral and ethical. e.g. Is itwrong to offer VAD to someone under acertain age, and if so, why, and what ageshould that be? Is it wrong to provide VAD tosomeone who cannot explicitly request it, ifso, why, and in what circumstances? Is itwrong to offer VAD to someone who is notterminally ill, and if so, why, and what level ofillness makes the offering of VAD “right”?

In their proposal, the Members attempt to givetheir answer to some of these questions.Notwithstanding their desire to receivefeedback and thus be open to certain minorchanges, their consideration is piecemeal withno clear guiding principle for justifying theexistence of the various criteria.

The main concern is this: It is unrealistic foreuthanasia eligibility criteria to be anything butsubjective.

When eligibility is based on subjective

considerations, the state's commitment to theprotection of a person's life is also madeconditional on subjective considerations. It isin this circumstance that “the obligation of thestate to protect the right to life of all individualsequally”38 cannot be delivered.

The discussion in the VAD paper itselfdemonstrates this subjectivity.

5.2 UNREALISTIC CRITERIA

THE COERCION CRITERIA - VOLUNTARINESS

The Members wish to construct a system thatembraces “voluntariness” in order to mitigatethe possibility of influence or coercion on aperson to request euthanasia.

This is a worthy aim. But the concern is clear:How is it right to consider euthanasia if“voluntariness” is ever in doubt?

The VAD paper attempts to demonstrate howbureaucratic processes and paperwork caneliminate this doubt. Be alert! Scepticism iswarranted.

The situation in the Netherlands is revealing.The Members recognise that the Netherlandshave a system which, similarly to the VADproposal, demands that “The patient's requestmust be voluntary.”39 However, a well-respected report40 in the prestigious medicaljournal, The Lancet, demonstrates howvoluntariness has not been guaranteed in thatjurisdiction.

The Lancet report notes that the “ending of lifewithout explicit patient request” occurred in2010 at a rate of 0.2% of all deaths in theNetherlands. If this had been the

14 VAD: A Flawed Proposal March 2013

circumstance in 2010 in Tasmania, whichexperienced 4269 deaths,41 at least 8 personswould have had their life ended without theirexplicit request. Is this acceptable forTasmania? Such an occurrence would be anoutrageous scandal.

THE INABILITY TO CHOOSE CRITERIA - MENTAL COMPETENCE

Similarly, the Members desire a system thatensures that only “mentally competent”patients can access euthanasia. In particular,they are rightly concerned about those with“impaired decision-making due to psychiatricor psychological disorder or depression.”42

The members themselves raise the vexedquestion of depression and dementia. Clearly,they find the notion of providing VAD to thosewho have severe mental illness or senility ascrossing some line of acceptability.

They are not able, however, to untangle thecomplexity of mental anguish, level ofsuffering, dependency, decision-making, anddisability that pertains to an understanding ofmental competence.

The issue of competence and consent hassignificant precedence when it comes to thequestion of offering therapeutic treatment.43 Inthe case of euthanasia the application is muchmore fraught.

On the one hand, the Members are strict:They are willing to disallow AdvanceDirectives, and so reject the principle thatsubsequent incapacity does not render acompetent decision invalid. On the otherhand they are lax: Mental competence isreduced to a clinical assessment, presumablyof rational capacity. And the Membersthemselves then raise the question of senilityand mental illness, implicitly recognising thatthe question is not just about rationality butalso emotional and psychological stability.

The VAD proposal does not provide a pathwaythrough this confusion. It does not evenprovide an adequate judicial or statutoryframework within which new precedencesmight be set. The determination of the pointat which mental competence is or is not of anacceptable level thus retains its essentialsubjectivity.

THE NOT SICK ENOUGH CRITERIA - NATURE OF ILLNESS

The VAD proposal attempts to restricteligibility to those suffering terminal illness.

In this instance an assessment must be madeon what is “incurable” and what it means to bein the “advanced stages” of a disease.

The Members themselves realise that there isno objective way to make this determination.They reject, for instance, arbitrary lines drawnwith regard to estimated longevity.44

The defining characteristics are thereforeencapsulated in vague notions of what is“unbearable and unrelievable.”45

However, there is no direct correlationbetween a condition being “unbearable” and“unrelievable” and it also being “terminal.”

Indeed, these attributes are inconsistent withthe notion of “compassion” as it is expressedin the VAD paper. Consider two personsexperiencing two “unbearable andunrelievable” conditions, which is judgedterminal for one person but not the other. Onwhat principled grounds would the Memberswithhold so-called “compassionate” VAD fromthe person who was not going to die from thecondition, and allow it for the person who wasgoing to die anyway?

We could expect, as has been the case inother jurisdictions, that despite anysafeguards, there would be a push for thescope of euthanasia to broadly apply beyondsituations of terminal illness.

15 VAD: A Flawed Proposal March 2013

There is no confidence that there can be asystem adequately protected from suchbroadening if the proposers themselves arenot able to articulate a robust principles forwhy and how the criteria are set.

16 VAD: A Flawed Proposal March 2013

6 RECOMMENDATIONS

The consultation process for this VoluntaryAssisted Dying proposal is relatively informal.There is no formal inquiry and the Membersrequesting feedback are not bound by anyobligation to consider or even report thatfeedback.

The Anglican Church of Tasmania may wellhave entertained the thought of notresponding at all.

The Anglican Church of Tasmania hasresponded because it has a vision forTasmania which is marked by a realcompassion: A compassion in in which the“weak,” “vulnerable,” “unproductive,”“burdensome,” “inconvenient,” and “broken”are affirmed in their worth and theirpersonhood.

The Anglican Church in Tasmania thereforemakes three recommendations:

6.1 RECOMMENDATION #1 – WITHDRAW THE PROPOSAL

The Members should withdraw the VADproposal.

If they feel the need to pursue the legislativeprovision for euthanasia they should do sothrough the appropriate, transparent,accountable processes of the Parliamentarycommittee system.

The Members should cease using theirprivileged position as a mechanism forrailroading reforms. If they truly believe thattheir proposal is reasonable and has popularsupport they should have no fear of it beingproperly scrutinised.

It is the view of the Anglican Church that thefindings of the 1998 Inquiry are relevant andappropriate and no case has been made that

the findings should be revisited, let alonereversed.

The Members may well be sincere idealists,but they fail to understand that in reality theirproposal is a form of imposition. It ispresented without mandate and demonstratesboth a lack of due diligence and a lack of care.Any sense of aggrievement by Tasmaniansthat they are yet again being made subject toa potentially divisive debate when there hasbeen no change in fact or relevant law isjustifiable.

6.2 RECOMMENDATION #2 – IMPROVE THE HEALTH SYSTEM, ESPECIALLY PALLIATIVE CARE

The Members presenting this VAD proposal,who are also the incumbents of the privilegedoffices of the Premier of this State ofTasmania and a Member of the Cabinet of theState Government, should lead theirGovernment to improve the health system andespecially palliative care for all Tasmanians.

The problems with the Tasmanian HealthSystem are well documented and wellknown.46 The Members have a responsibilityas political leaders to do all they can to ensurethat basic remedial and palliative treatmentsare available to all Tasmanians at areasonable cost, within a reasonable time,and within a reasonable distance.

The pursuit of VAD would place additionalburden on the health system, and a possibledetrimental coercion on citizens already madevulnerable by the poor provision of medicalservices.

While the health system remains under somuch pressure the pursuit of VAD is not just adistraction but a shirking of Government

17 VAD: A Flawed Proposal March 2013

responsibility.

6.3 RECOMMENDATION #3 – IMPROVE AWARENESS ABOUT END OF LIFE CARE

It is clear from the VAD Paper that theMembers are motivated in part by the desireto facilitate awareness and conversation aboutend-of-life issues.

This, in and of itself, is a worthwhile aim.

The 1998 Inquiry also recommended thatattention be given to the information providedto those experiencing illness, death andbereavement.

6. The Committee recommends thatpatients have greater access toinformation

about their rights regarding medicaltreatment..47

Clearly, the improvement of the awareness ofpatient rights can be envisaged andrecommended without requiring a euthanasiaprovision. The Members would do well toidentify how this recommendation has beenadvanced since 1998 in its own right.

Any process for improving the provision ofinformation, and recording and acting upon apatient’s wishes is to be applauded.

Such a provision, however, can occurindependently of any proposal for VAD, andshould do so.

Euthanasia is not needed as an educationalaid to speak about end-of-life issues. We canspeak of end-of-life issues without the spectreof state sanctioned killing hanging overTasmanians’ lives.

18 VAD: A Flawed Proposal March 2013

1 Source: The Examiner, http://www.examiner.com.au/story/157059/assisted-death-debate-reignited/ June 24, 2012

2 The VAD Paper, Page 13 The VAD Paper, Pages 19-204 Parliament of Tasmania, House of Assembly Community Development Committee, Report

on the Need for Legislation on Voluntary Euthanasia 1998: Findings, Page 25 The VAD Paper, Page 116 The VAD Paper, Page 77 The VAD Paper, Page 11, quoting Bartels and Otlowski8 See http://anglicantas.org.au/parishes/9 Source: 2011 Census data, see:

http://www.censusdata.abs.gov.au/census_services/getproduct/census/2011/quickstat/610 Anglican Church of Australia, Diocese of Tasmania,

Submission to the House of Assembly Community Development Committee Euthanasia Inquiry, June 1997, Pages 2 and 9

11 The VAD Paper, Page 912 Source: Reuters, http://www.reuters.com/article/2013/01/14/us-belgium-euthanasia-

idUSBRE90D0W620130114, Jan 14, 201313 Source: AAP http://www.couriermail.com.au/news/breaking-news/belgium-debates-

euthanasia-for-minors/story-e6freoo6-1226582346113, Feb 21, 201314 Source: Agence France-Presse http://news.nationalpost.com/2011/11/09/first-euthanasia-in-

netherlands-of-severe-alzheimers-patient/ Nov 9, 201115 The VAD Paper, Page 5716 The VAD Paper, Page 2017 Crf. Article 3 of the Universal Declaration of Human Rights: ““Everyone has the right to life,

liberty and security of person.”18 Dunne, P. If Euthanasia is the answer, what is the question? Presentation given at St. David's

Cathedral Hobart, Friday Forum, Feb 17, 2012. http://saintdavids.org.au/event/2012/02/if-euthanasia-is-the-answer-what-is-the-question/

19 Not Dead Yet Disability Activists Oppose Assisted Suicide as a Deadly Form of Discrimination, http://www.notdeadyet.org/assisted-suicide-talking-points, accessed March 12, 2013, emphasis added.

20 The VAD Paper, Page 721 A very clear example is Schadenberg, Alex, Exposing Vulnerable People to Euthanasia and

Assisted Suicide, Connor Court, Ballan VIC: 2013, a small monograph devoted to the critiqueof various studies in this field.

22 See the VAD Paper, Page 1023 Source http://www.ccdonline.ca/en/blog/assisted-suicide-13July2012, accessed March 15,

201324 The VAD Paper, Page 1825 Consider section “Survey Information”, The VAD Paper, Page 10526 Source: http://www.commonwealmagazine.org/blog/?p=21731, accessed March 13, 201327 The VAD Paper, Pages 13-14, and Page 2028 The 1998 Inquiry Report, Finding #9, Pages 6-729 The VAD Paper, Page 1330 The VAD Paper, Page 1931 The VAD Paper, Page 1332 The VAD Paper, Page 2233 The VAD Paper, Page 1034 The VAD Paper, Page 1135 The VAD Paper, Page 21, quoting the 1998 Inquiry36 The VAD Paper, Page 2137 The VAD Paper, Page 2238 Community Development Committee, Report... on Voluntary Euthanasia 1998:

Recommendations: Findings, Page 239 The VAD Paper, Page 6740 Onwuteaka-Philipsen et al, “Trends in end-of-life practices before and after the enactment of

the euthanasia law in the Netherlands from 1990 to 2010: a repeated cross-sectional survey”, Lancet online, July 2012

41 Source: ABS 3302.0 Deaths, Australia42 The VAD Paper, Page 32

43 Consider for instance, Dondershine, Harvey, Competency to Make Medical Decisions, Paper from Seminar in Psychiatry and Law, http://forensicpsychiatry.stanford.edu/Files/Medical%20Competency.doc Accessed March 12, 2013

44 The VAD Paper, Page 4045 The VAD Paper, Page 4346 Consider a very recent example reported in the Mercury, “Our hidden sick list revealed”,

http://www.themercury.com.au/article/2013/03/11/374305_todays-news.html, March 11, 2013

47 Community Development Committee, Report... on Voluntary Euthanasia 1998: Recommendations, Page 8