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Dyone Bettega and Tom Carraro discuss the Victorian Assisted Dying Act and explore the ethical considerations which underpin the new legislation.
On 19 June 2019, the voluntary euthanasia access scheme created by the Voluntary Assisted Dying Act 2017 (Vic) came into effect in Victoria. In passing these landmark laws, Victoria became the first state or territory in Australia to have laws permitting voluntary euthanasia. In mid 2021, a comparable legislative scheme in Western Australia will commence. The process for assessing the Victorian scheme is, by the very nature of the legislation’s subject matter, complicated and sensitive. However, the underlying question to discuss now is whether the Victorian laws meet contemporary ethical scrutiny?
Before deciding whether the legislation does withstand proper ethical scrutiny, we need to identify the analytical framework against which it will be assessed. Beauchamp and Childress, in their book Principles of Biomedical Ethics, established a framework of four principles (Principlism) that are tailored to ethical decision making in bioethics. These principles have guided many of the unique clinical and research conundrums that have been raised through novel and ‘non-traditional’ advances in medicine. The four principles are:
respect for autonomy (self-governance and moral independence);
nonmaleficence (do no harm);
beneficence (do good); and
justice (the fair distribution of resources).
Autonomy has established itself as a core principle of ethics over the last 40 years. Autonomy is described as self-governance in which an individual can take ownership of their decisions based on their values and conception of what is good for themself. On one view, euthanasia promotes autonomy and self-governance because the terminally ill can die on their own terms and be in full control over what their final lived experience will be. On the other hand, a persistent scepticism of euthanasia is whether the individual’s decision is a true and enduring reflection of their wishes. Have they truly thought through this decision or are they just grappling with the desperation that comes with being a victim of such terrible circumstances and can’t see a way forward?
In other words, is the individual so ill and debilitated that their autonomy has been stripped from them by their condition and their decision rendered irrational? To safeguard against the possibility of irrational or briefly considered decision making, assessments of the person by independent medical practitioners are sometimes undertaken. Whilst in one sense, this process achieves that aim, in another sense it undermines the aim because those medical assessments are a precondition to someone exercising autonomy over their life.
These are difficult questions to answer both ethically and medically and will often lie on the murky border between the clear answers.
One of the most complicated issues of euthanasia in the public healthcare context is determining the outer limits of the responsibilities of those involved in an assisted death (both the medical practitioner and the patient). The principle of nonmaleficence, the idea that in making decisions you should choose the option that does no harm to others, can provide a helpful starting point in attempting to resolve this issue.
However, ‘harm’ in a bioethical context can take on a few different meanings. It can be defined as damage to an individual’s interests or damage that has been wrongfully inflicted. On either interpretation, there are instances where death does not cause the individual harm because they will be more comfortable when compared to staying alive. However, in prohibiting euthanasia for the individual who requests it, harm can befall them as damage to their interests as well as physical damage experienced through prolonged pain and discomfort.
With regard to the medical practitioner, is their role in seeing the patient though the process of acquiring a ‘voluntary assisted dying permit’ (a requirement in the Voluntary Assisted Dying Act) an example of passive or active euthanasia. In other words, is this an act or an omission? Is this killing or letting die?
The complement of nonmaleficence, beneficence, is a vital foundational principle of medicine that requires one to ‘do good’. In the context of euthanasia, beneficence requires medical practitioners to promote the well-being of individuals. Does this then mean that in order to satisfy the principle of beneficence, practitioners must (a) preserve life no matter what the cost (thus removing euthanasia as a viable ethical option) or (b) respect the patient’s autonomy? Both of these options ‘do good’ however medical practitioners in Victoria must elect to join this scheme thus ensuring a medical practitioners own beneficence is observed.
As we have delved deeper into the duty of a medical practitioner, the ethical permissibility of euthanasia becomes far more circumstantial and reflective of medical situations that require a thorough assessment and balance between patient requests and treatment options available. The Victorian Assisted Dying Act has included this consideration in its eligibility requirements. By including a maximum 6-month time period in which an individual’s terminal disease is expected to cause death, the Victorian State Government has balanced the time in which the medical practitioner can strive to preserve life with the patient’s own autonomous desires if they choose euthanasia.
In addition to moral concerns involving euthanasia, the final of Beauchamp and Childress’ principles explores justice. One interpretation of justice is that a society is just when burdens and benefits are distributed fairly. In examination of previous laws against euthanasia, many people consider it unjust that a patient who is in pain is denied the chance for an easy death and is made to suffer longer because of legal constraints. Laws prohibiting euthanasia can be viewed as unjust to family members, who must endure a longer period of emotional and financial strain, and to medical practitioners, who may see relieving the patient’s pain as a primary duty that they are being kept from performing. The opposition to this is that this access must be tightly controlled as circumstances in which to permit euthanasia must be carefully examined by a psychologist and cross-checked with a doctor or specialist (a requirement in the Voluntary Assisted Dying Act),to ensure that any end-of-life decision is safeguarded and approached with the utmost care and respect to ensure they understand the finality of their decision. It is also imperative that everyone that qualifies for euthanasia can access it in a caring and safe environment.
While euthanasia is a highly contentious issue, the Victorian Voluntary Assisted Dying Act has developed a process to try and ensure a consistent and rigorous ethical framework is upheld in making such an important decision. The process which has many safeguards in order to try and protect patients and practitioners alike, strives to ensure that euthanasia is safe and the patient only does it if they want to, the latter ensuring autonomy.
The process requires two medical practitioners to answer the following question: “Is the pain caused by an affliction causing a patient suffering such that it cannot be relieved in a manner that the person considers tolerable?”. If the answer is yes from two independent doctors, the patient is permitted to access the scheme. This ensures that both nonmaleficence and beneficence are considered in the process.
The interesting anomaly comes when one examines the scope of the legislation. It is heartening to see that both urban and rural receive equitable distribution of the scheme, with 37% of the medical practitioners trained originating from regional Victoria correlating with the 38% of patients utilising the scheme.
Similarly, over the initial 12 months of the scheme a 50% increase in medical practitioners being trained in the process was observed ensuring that the increase in trained medical professionals has promoted a just distribution of resources because it has widened the reach of these euthanasia laws and the number of patients who can access it.
Overall, due to the many different opinions derived from the myriad of cultures and consciences of our ever-growing society, it is almost certain that we will never agree on this issue. However, euthanasia accessed through the Victorian Assisted Dying Act should be an option for those who wish to utilise it, but it should remain tightly controlled to ensure those who access it, undeniably require it.
This piece was entered in the St Andrew’s College Collaborative Writing Competition 2021.