Medical Services (Dying with Dignity) Exposure Draft Bill 2014

Liberty Victoria is pleased to make the following comments on the Medical Services (Dying with Dignity) Exposure Draft Bill. Our organisation is fully supportive of the Bill, while wishing to suggest some minor amendments to its terms.  

Liberty Victoria has a long and proud history of campaigning for civil liberties and human rights for more than 70 years. Officially known as the Victorian Council for Civil Liberties Inc, its lineage extends back to the Australian Council for Civil Liberties (‘ACCL’). The ACCL was formed in Melbourne in 1936 and was determined to offer ‘a means of expression to those people in all parties who believe that social progress may be achieved only in an atmosphere of liberty.’ Brian Fitzpatrick was the ACCL’s General Secretary for twenty-six years and helped to form the Victorian Council for Civil Liberties before his death in 1965.

Throughout its history, Liberty Victoria has defended the right of individuals and organisations to free speech, freedom of the press and of assembly, and freedom from discrimination on the grounds of race, religion or political belief. It has operated in accord with the ACCL’s original platform, working not only to defend existing civil liberties and oppose their limitation, but to campaign for the ‘enlargement of these liberties.’ We are now one of Australia’s leading civil liberties organisations.  

Liberty believes that a person’s decisions about death and dying are amongst the most important, if not the most important, that any and every individual will make. Consistent with the organisation’s commitment to civil liberty, we believe that an individual should be accorded the maximum feasible scope for exercising her moral, ethical, personal and medical discretion when faced with dilemmas and decisions surrounding the end of her life.

It follows that that state and society should impose upon these individual discretions to the least extent possible. In this arena, perhaps more than in any other, it should not be the function of the law to force competing moral frameworks or societal mores upon an individual facing death. The choice that an individual with a terminal illness desires sincerely to make concerning her means of ending life should remain fundamentally her own. These are not decisions that society, through law or any other means, should make on an affected individual’s behalf.

The only exception to this general rule, on the other hand, should be that the law may properly set down conditions designed to ensure first, that a person with terminal illness is in a position to provide informed consent to the administration of relevant medical services and, secondly, to ensure that the person is not placed under undue pressure by others to adopt one course or another. 

It is these general principles that inform the recommendations that Liberty makes below.

1. The operation of the Bill should be limited to persons who are suffering from a terminal illness. Liberty, therefore, agrees with the three-step medical certification process provided for in the draft legislation.
2. S.5 of the Draft Bill sets down a list of medical services that may be provided by a medical practitioner to a person to enable that person to end his or her life. Liberty agrees with the services described in s.5(2)(a) –(d) but has a reservation about the service described in sub-paragraph (e).
3. This provides that a medical service includes the administration of a substance to the person at the person’s request. In our view, it is preferable that the general rule be that it should be the person herself who administers the substance. The administration of a substance causing death to person by any other person, including a medical practitioner opens out the possibility of undue influence, misconduct or mistake. This should not be countenanced.  The only exception that should be contemplated in this regard is one in accordance with which it would be permissible for a substance to be administered to one person by another in circumstances where the dying person is no longer possesses the physical capacity to undertake that administration herself. Liberty recommends that the Draft Bill be amended to this effect.
4. S.6 of the Draft Bill purports to describe the constitutional basis for the Bill. There is no problem with paragraph (a) S.51(xxiiiA). This provides an adequate constitutional basis for the legislation. Paragraph (b), however, purports also to rely upon ‘any implied legislative powers of the Commonwealth’. In constitutional and legal terms this is meaningless. It would be better to rely instead, and in addition, upon s.51(xxxix) of the Constitution relating to matters incidental to the execution of any power vested by the Commonwealth in the Parliament or Government of the Commonwealth.
5. S.10 of the Draft Act provides that a person who, in the course of a terminal illness, is suffering pain distress or indignity, to an extent unacceptable to the person, may request the relevant and applicable medical services. In Liberty’s view this sets too low a threshold. The matter of death and dying is too serious a matter for choices in relation to it to be made on the basis of acceptability or mere convenience. The wording should be changed to ‘pain, suffering, distress or indignity ‘to an extent intolerable to the person.’ We note in this regard that the objects clause in the Draft Bill, contained in s.3, speaks of the right of a mentally competent adult who is suffering ‘intolerably’ from a terminal illness to request the relevant medical services. This is the right standard and the term ‘intolerable’, therefore, should be used consistently throughout the legislation. This recommendation will require an alteration to a series of words in the draft legislation suggesting that a lower standard may be applicable. So, for example:
   1. ‘acceptable to the person’, in s.12(c)(ii) should be replaced by ‘tolerable to the person.’
   2. The words ‘severe pain’ in s.12(g) should be replaced by ‘intolerable pain’.
   3. The words ‘acceptable to the person’ in s.13(3) should be replaced by ‘intolerable to the person”.
6. S.12 (c)(ii) provides that a medical practitioner should be satisfied that there is no medical measure acceptable (tolerable) to the person that can be undertaken in the hope of effecting a cure. The word ‘cure’ is inappropriate. If the legislation is directed to people with terminal illness then, by definition, a cure cannot be achieved. The provision might better fulfil its aim if the word ‘cure’, were replaced by ‘in the hope of experiencing a dignified death’. Similarly, s.12(c)(iii) provides that any medical treatment available should be limited to the relief of pain…with the object of allowing the person to die a ‘comfortable’ death. The word ‘comfortable’ again seems inapt and may in many circumstances be unachievable. That phrase would read better as ‘a dignified death’.
7. S.12(g) requires that a medical practitioner be satisfied that the person has considered the possible implications of the person’s decision on his or her family. This is inappropriate. It is not for the law to dictate to a person the criteria upon which a person should make such fateful decisions. That is a matter for them. The law’s only concern should be to ensure that the person has made their decision freely, conscientiously and on a fully, medically informed basis. 
8. S.13 provides that a medical practitioner providing dying with dignity medical services must be guided by appropriate medical standards and such guidelines (if any) as are prescribed. In Liberty’s view it is inadequate simply to refer to ‘appropriate medical standards’. These standards need some specification. Consequently, the parliament should consult with the relevant segments of the medical profession, including medical ethicists,  in order to develop indicative standards. These should then appear as a schedule to the legislation as finally adopted.
9. Sections 21 and 22 set down offences in relation to deception, or the exercise of improper influence, to procure a dying with dignity medical service. These offences relate to the person requesting relevant medical services; a medical practitioner signing a certificate of request and/or providing the relevant medical services; or a witness to the signing of a certificate. The offences are clearly justifiable and the penalties for their commission are appropriate. The words ‘deception’ and ‘undue influence’, however, are vague. It would be better, particularly in relation to the exercise of undue influence upon the person requesting medical services, if an inclusive list of indicative examples of undue influence could be provided in the section. These might include, for example, undue influence exercised for the purpose of obtaining a monetary, emotional, familial or other relational benefit by blackmail, threat, deception or other improper means of persuasion. 

Liberty thanks the drafters of the draft Bill and the Senate for the opportunity to make this submission on an issue or fundamental to the rights and freedoms of every Australian.