Hansard 2008-07-30 Physician Assisted Dying Bill

BACKGROUND:
Peter Kavanagh, DLP MLC for Western Victoria, on 30 July 2008 led a charge against the Medical Treatment (Physician Assisted Dying) Bill 2008 with a major speech in the Legislative Council.

"A mood against the Bill certainly seemed to develop during the course of the debate. I am now CONFIDENT that the Bill will not be passed" Mr Kavanagh said in a press release the following day.

The full text of Mr Kavanagh's speech against the Bill is below:


HANSARD:
Title: MEDICAL TREATMENT (PHYSICIAN ASSISTED DYING) BILL
House: COUNCIL
Activity: Second Reading
Members: KAVANAGH
Date: 30 July 2008
Page: 2802

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...

Mr KAVANAGH (Western Victoria) -- As was pointed out by Ms Broad, we human beings possess a questionable gift -- the gift of knowing that we are all mortal, that there is no getting out of our earthly existence alive. Anxiety over the inevitability of death is accentuated by the heartbreaking experiences that probably all of us have had in witnessing people we love suffering in the course of dying, sometimes over protracted periods. The bill before us is motivated by compassion engendered by such experiences. It is entirely appropriate that we be motivated by compassion, but it is also obligatory for us to use our intellect, our reasoning and our understanding of human nature gained from ourselves and our fellows. The application of these tools and insights to the challenge of painful death makes it clear that any conceivable good that could come from the Medical Treatment (Physician Assisted Dying) Bill 2008 would be greatly outweighed by its harmful consequences.

I observe that, contrary to assumptions and assertions by some proponents and opponents of this bill, it is not actually about suicide. The bill is not about people killing themselves, but its legal parts relate to providing and/or administering the means of ending another person's life. Contributing to the death of another person, even one who apparently volunteers, of course raises issues and legal principles quite different from those involved in the consideration of a suicide. Not only our legal system but also our very civilisation have long been predicated on the premise that innocent human life is of such value that it may be taken permissibly only in the individual or collective defence of life itself. This principle, the heart and soul of our legal system, protects us all. Damaging, denying or compromising that principle reduces the protection provided by our legal system and the dominant social attitudes to which our laws contribute.

The principle of the value of innocent human life demands that lives be respected even by barons and kings. This principle was not established quickly or easily. It took centuries of inculcating what were initially revolutionary concepts about the nature and importance of the individual. However, the fact that this process took a long time and struggle to establish does not mean that its undoing would require a correspondingly long period or that the process would be necessarily as tortuous. An unfortunate fact of life is that destruction is much simpler, quicker, easier and cheaper than construction. The greatest building in the world that took centuries or generations of hard work, genius, material and wealth might be destroyed by a single individual with a few seconds of concentration and a match. Despite the best intentions of many of its proponents, the Medical Treatment (Physician Assisted Dying) Bill 2008 would be a spark conflagrating the most important principle that is the basis of our legal system and civilisation.

Passage of this bill would establish at least two new principles. First, the lives of certain categories of people will not be protected by the legal system. Second, that killing certain people is rendering assistance to them. Actions that are inherently wrong have regrettable reactions only some of which are foreseeable. The consequences of the passage of this bill that we can foresee include generally diminishing the value of human life not only by the state but also by individuals.

The inculcation of the principle that life is of inestimable value has contributed to a sense of awe over the taking of another's life. That awe, and the inhibition and reluctance at the taking of another life, would be diminished if the bill is passed, because the law not only expresses our culture but also helps to inform and shape it. If this bill is passed then the restraint the law has traditionally contributed to imposing on people in situations where there is

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temptation to take another person's life would be weakened.

This process would not be conscious, deliberate or even considered. It would be automatic but influenced by the devaluation of human life which this bill entails. For example, a home burglar who is confronted by an elderly resident would know, if this bill is passed, that there are innocent people, especially elderly people, who the law allows to be killed. The home invader might even reason, taking his cue from the law, that causing a quick death might even be doing that bothersome old person a favour. Passage of this bill would weaken the inhibitions felt at the taking of human life in every situation of conflict or anger -- whether, for example, it is two people fighting in a bar or a driver engulfed by road rage. If the bill diminishes respect for the lives of others, as it would, what would be its effects on attitudes towards assaulting or otherwise harming others short of death, let alone by stealing or damaging their property?

Even more profound and disturbing than the effect on how individuals assess the value of the lives of others would be the effect that the passage of this bill had on how people see themselves. The elderly and sick already fear being a burden on their loved ones and on the community at large. Would not the knowledge that some elderly and sick are volunteering to be killed cause some of the elderly and sick to view continuing to live -- that is, failing to volunteer to be killed -- as an act of selfishness? Indeed, as pointed out by Palliative Care Nurses Australia in Commentary on the Medical Treatment (Physician Assisted Dying) Bill 2008, famous proponents of euthanasia in Australia have implicitly implied or argued that it would be altruistic for those who feel that their lives are a burden to seek assistance to die.

In addition to the implicit pressure that passage of this bill would put on the vulnerable themselves, there would be explicit pressure from other people.

The bill purports to safeguard the elderly against pressure from relatives and friends by prohibiting those involved in a death from inheriting from the deceased. This safeguard is naive and would be almost totally ineffective. First, the person encouraging the sick person to volunteer to be killed need not be an agent under the bill. Second, the encourager may not need a will at all to inherit property. Third, the benefits to the encourager may not be of a financial or material nature at all. There are many other benefits that could come from a person apart from money or property. The death of the sufferer might, for example, simply relieve the encourager of inconvenience, for any encouragement that was given will be nearly impossible to prove after the death of the person who volunteers to be killed.

It is easy to envisage thousands of types of motivations for seeing the death of another person. One can also imagine thousands of scenarios in which this encouragement might take place.

It will probably not be in the form of a demand; it will not be angry or direct. Betrayal, as we know, is almost always done with a kiss. Suggestions to volunteer to be killed will be 'nurtured in smiles and in soft deceitful wiles', to quote the poem.

We could imagine, for example, a man going to see his mother-in-law. He has not seen her for quite a while but he drops in unexpectedly and they have a cup of tea together. He says, 'You know, Mother, you have had this problem, this diabetes, for a while now, you are a good age, you are over 60 years old and you are getting on. There is that arthritis you get every year, and life is not very good these days. Don't you think you ought to tell them that you have had enough and that you cannot take it any more? Your daughter comes to see you every week and it is taking her away from the kids. We have got our own lives to lead. We are very concerned about you, but don't you think you owe it to the kids to volunteer?'. There are many scenarios along those lines that we could imagine.

This bill rests on several false premises. One premise is that a person in severe pain is in a position to make rational, monumental decisions. In fact, a person in this condition is in precisely the kind of state which prevents them making an important decision, let alone a life-and-death decision.

The bill presumes that medical science is capable of making consistently accurate diagnoses and prognoses. It presumes a 100 per cent success rate. In recent years two high-profile cases in Australia involving euthanasia, one in New South Wales and the other in Northern Territory, demonstrated not a 100 per cent success rate but a 100 per cent failure rate in medical diagnoses and prognoses. In both cases, while alive the deceased had been medically diagnosed as dying from their illnesses. In both cases, autopsies after euthanasia deaths revealed that neither of them had terminal illnesses. It is also worth noting in this context that this bill does not require autopsies to be performed on deceased persons who died pursuant to this legislation.
Under clause 6 the sufferer may revoke a certificate of request to be killed. If the person is unable physically to do so, this revocation may be done by the sufferer's agent. But what of the sufferer who, firstly, has changed his or her mind but is unable to express his or her new

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wishes; and secondly, what of an agent who does not revoke the certificate on the sufferer's behalf? What of it? That sufferer will be killed pursuant to this bill but without his or her consent.

Passage of this bill would make it legally mandatory to officially declare falsehoods in important documents. Clause 16 requires that the cause of death of a person killed by euthanasia be recorded in the death certificate as the condition which encouraged the deceased person to volunteer, if indeed they did volunteer, to be killed. As explained by Aristotle two and a half thousand years ago, causation is a complex concept both in practice and in theory. It is not so complex, however, that the declaration of cause of death can honestly lend itself to the degree of distortion required by this bill.

The cause of death of a person who kills himself following the breakdown of a marriage is surely suicide and not divorce.

In the case of a person who is killed because the killer was angered by something about the deceased, then the cause of death is surely homicide, rather than whatever was the reason for the killer's anger. This bill legally demands that death certificates be falsified. The law should not mandate the uttering of falsehoods.

The deception associated with this bill is not restricted to falsehoods in death certificates. The language of the bill is chillingly Orwellian. Facilitating another's death by providing a poison or even pouring that poison down the throat of another person is categorised by this bill not as 'murder', 'killing' or even 'mercy killing', but repeatedly it is called 'assistance'.

Intolerable pain is referred to repeatedly but defined only as profound suffering and/or distress, whether physical, psychological or existential -- that is, intolerable to the patient.

A literal definition of intolerable pain would mean pain that cannot be tolerated -- that is, pain that kills the patient. Though logical, this cannot be what is meant. It must mean severe suffering of some kind but this is extremely subjective. There are really no satisfactory objective criteria possible by which intolerable pain can be measured: not in the bill and not in medical science.

As we in prosperous advanced societies grow weaker, the boundaries of intolerable suffering will grow ever larger. Combined with a sharply increasing acceptance of killing, if this bill is passed, the acceptable definition of 'intolerable suffering' would no doubt quickly balloon out of all present recognition. The very title of this bill is deceptive. It is called the Medical Treatment (Physician Assisted Dying) Bill 2008. It is not about medical treatment at all. Medicine is a branch of science dealing with healing and postponing death.

This bill is about the opposite -- unnaturally shortening life. An act is not necessarily medical in nature simply because it is performed by someone wearing a white coat with a stethoscope around their neck. The so-called medical treatment that would come from this bill would be no more medical than Dr Mengele's experiments or the actions of Dr Harold Shipman, who murdered many elderly patients in Britain in order to inherit from them.

This bill pays only lip-service to the value of life. This bill aimed at ending lives prematurely claims that 'life is precious'. That this is only lip-service is seen by the fact that the bill, under clause 4, while saying that physicians should treat requests by patients to be killed with 'caution', provides no penalties at all for failure to exercise that caution. On the other hand, under clause 9, penalties are imposed on physicians who refuse to help kill patients and do not refer patients to other physicians who may agree with this request to be killed. The right of conscientious objection is thus removed from the bill.

It would make it a criminal offence in some circumstances for doctors and nurses not to participate in the process of killing another person. Pursuant to the bill there are also strong penalties for physicians who try to resuscitate patients who take poison and are dying. Resuscitating a dying person actually becomes a criminal offence in certain circumstances under this bill. That criminal offence is punishable with a fine of up to 1000 penalty units and imprisonment of up to five years.

The word 'dignity', though not dignity itself, also recurs throughout this bill. What is meant by dignity? What seems to be meant is continence and a lack of pain. Is it dignified to end life prematurely? Is there really dignity in deliberately leaving loved ones forever, before it was necessary to do so? I think not. In my opinion there is more dignity in a life lived to its natural conclusion, possibly in spite of pain and incontinence.

This bill is not supported by the Australian Medical Association. Similar proposed legislation around the world is strongly opposed by many medical associations. Many physicians in Victoria strongly oppose the provisions of this bill. Some doctors in western Victoria have privately expressed the intention to take early retirement if this bill is passed. They say if this bill is passed they would rather leave the medical profession than remain part of an occupation which has fundamentally changed in nature from attempting to heal or treat patients in any circumstances to participating in the deliberate killing of innocent people.

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Trust is surely an essential component of a doctor-patient relationship and is dependent on a patient believing that a doctor will do his or her best for the patient in all circumstances. How could this bill not damage that trust, and how could it not therefore do injury to the medical profession and the efficacy of treatment, especially for the elderly? Many elderly people in Holland now fear doctors just as many Aboriginals in the Northern Territory feared doctors and refused to seek treatment when similar legislation was active. In the case of the Dutch at least, their fears are unfortunately not without foundation. Although Holland's euthanasia laws initially had strict safeguards, with the passage of time they have been watered down. Contrary to the claims of Ms Broad, there are now cases of the medical killing of the elderly and the sick and handicapped, especially babies who do not genuinely volunteer to be killed.

The truth is that whatever safeguards are initially imposed will be eroded over time.

Ms Broad said it is up to the Parliament to make laws and the laws cannot be changed without our permission. While the letter of the law may not be changed without our permission, the practical effect of the law is changed every day without reference to Parliament. In Victoria we have laws that say that technically it is illegal to perform an abortion, for example. At the same time in Victoria we have about 30 000 abortions paid for by the commonwealth government and the taxpayer. The letter of the law and the reality of the law are two quite different things, as I think Ms Broad will understand.

Why will these safeguards be watered down over time? The reason is that once it becomes accepted in law and in principle that killing people can be 'assisting' them, then the floodgates are opened and restraints and inhibitions on the taking of imperfect lives are washed away. Expert analysis of the Oregon act, which is the model for the bill before us, has concluded that in respect of the safeguards in the Oregon act:

"The evidence strongly suggests that these safeguards are circumvented in ways that are harmful to patients".

Furthermore, an editorial in the Oregonian of 8 March 2005 said that their system of euthanasia, which this bill is based on, is 'a system that seems rigged to avoid finding' answers. In practice what will happen is that it will very quickly become clear which physicians are pro-euthanasia. There will probably be lists available on the internet -- certainly by telephone, if not on the internet -- of doctors who will promote euthanasia and who will not, I am afraid, contrary to the assertions of Ms Broad, be as devoted to finding cures for patients with difficulties as they will be to assisting them to end their lives.

Palliative care is a relatively new but rapidly developing area of medicine that holds great promise.

The passage of this bill would detract from the considerable achievements being made in the promotion of palliative care and in the standards and effectiveness of palliative care. As the Victorian division of the World Federation of Doctors who Respect Human Life claimed in a recent letter to MPs:

"Recent replacement of oral morphine with methadone improves the patient's quality of life ..."

This is being done now for people who are dying in pain; their lives are being improved. This methadone allows for the reduction in sedation and allows both a higher dose of opiate and more activity on the part of the patient. As information from Palliative Care Nurses Australia demonstrates, the standards of palliative care now possible make it feasible for the vast majority of people to experience a fulfilling and relatively pain-free death.

There is evidence that the more doctors know about palliative care, the more hostile they become to euthanasia. Even in the Netherlands over the last two or three years, the rate of euthanasia has begun to decline very slightly. This has been attributed to the increasing familiarity of many Dutch physicians with palliative care methods.

Research shows that while physical illness is often a trigger for despair, it is the depression and not the underlying illness itself which motivates most of those who are volunteering overseas for euthanasia. Crucially, to quote from an article by leading specialists in the Michigan Law Review of last month, those who request euthanasia in Oregon:

"... are [almost] always ambivalent about their desire for death".

What the authors are saying is that it depends on which day you get the patient as to whether they are volunteering for death or not; those who volunteer today may be quite unwilling tomorrow.

The end of life can be traumatic. One of our best features as human beings is to empathise with the suffering of others. Sometimes our empathy is even inflated by projecting onto the sufferer our reaction to what looks really horrible but perhaps is not actually as bad as it looks. In Victoria a person may legally refuse life-prolonging treatment and keep taking only pain relieving medication if that is their desire and their choice. This is entirely proper, because in such a

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situation the patient will be killed by his or her illness and not, as proposed by this bill, through the intervention of another person.

The passage of this bill would have a wide range of profoundly detrimental effects. It would diminish the protection offered to the lives of all people that is provided by the law and the social attitudes to which the law contributes. As explained, the bill, even as presently written, will allow people who do not genuinely volunteer, to be killed. Even beyond that, the bill's safeguards, although initially observed, would weaken over time.

There are likely to be other long-term consequences that we cannot yet envisage. We can be sure that these consequences will be pernicious, because they will emanate from initiatives which, while nobly motivated, are wrong in principle. It is wrong in principle to deal with the problems of human beings by killing them.