Voluntary assisted dying legislation must be more ethical than recent police tactics

By David Swanton

Posted Tuesday, 25 July 2023 in ON LINE opinion - Australia's e-journal of social and political debate 

Although suicide is legal and the ACT Government is working to legislate for voluntary assisted dying (VAD), recent insensitive actions of police in Canberra suggest that police think suicide is illegal.

Welfare checks

What happened? In recent months, police have conducted so-called welfare checks on elderly Canberrans. This sounds innocuous, and commendable, if the checks were of ill people contemplating irrational suicides. However, these checks were devious. They were tactically designed to unsettle vulnerable people and were carried out late at night. 

In the cases of which I am aware, up to three police officers awakened people in their 70s and 80s late at night, after 11 pm. The victims of these ‘welfare checks’ were startled and disconcerted when police interrupted their sleep. The police knew their ages and must have suspected that they would be asleep at that late hour. People normally fear the worst when police contact them late at night and continue to ring door buzzers. The police also interviewed neighbours, raising privacy issues. In such instances, dispatching three police officers is intimidatory. These elderly people were stressed by these visits and had difficulty getting back to sleep. In short, these welfare checks were counterproductive. 

So why did the police visit these people? These people were suspected of having ordered lethal end-of-life substances. The alleged substances are legal. I suspect that, in the absence of effective Australian VAD regulatory regimes, thousands of elderly Australians have had such deliveries. For many people, suicide is a better alternative to suffering and dementia. Hence the need for effective VAD legislation that meets the needs of all people who are suffering.

Late night welfare checks of elderly Canberrans are not an efficient use of police resources. Police officers play an important role and are rightly highly respected in the Canberra community. Their jobs are not easy. But if the welfare of these elderly Canberrans was a legitimate concern, a meeting with a social worker could have been arranged at a mutually convenient time. I have alerted ACT Attorney General Shane Rattenbury, a strong supporter of VAD, to the inappropriateness of these late-night police welfare checks.

Survey

That elderly Canberrans choose to acquire lethal substances is understandable, and not a reason for police investigation. In my comprehensive worldwide 2021 Ethical Rights VAD Survey of VAD advocates and supporters, 85% of respondents indicated that they would have an improved quality of life if they had ready access to a lethal end-of-life substance. This included 24% whose well-being would be improved even if the substance were illegal. The percentage of respondents wanting to access these substances increased with age after 40. That gives them comfort and peace of mind in those circumstances where they might be suffering and where VAD regulatory regimes are inadequate. 

VAD legislation should not discriminate

Will Canberrans still need to obtain these legal lethal drugs when the ACT has VAD legislation? No, not if the ACT enacts an effective, compassionate, and non-discriminatory VAD legislative system based on a VAD human rights model that empowers each person to determine what is right for their own body. Otherwise, they will.

There is some hope, given that the ACT Government has been at the vanguard in ensuring equality and outlawing discrimination based on attributes such as Indigenous heritage, sexual orientation, gender identity, race, and religion. We should expect that the government would publicly condemn any discrimination, including in VAD legislation. 

Australian medical model for VAD

In contrast to this desirable non-discriminatory approach, the ACT Government has stated that it ‘will be pursuing a model consistent with Australian states’ for its VAD legislation. Australian states’ legislative schemes are, however, based on a VAD medical model (as described in the British Medical Journal) that discriminates on the degree and type of suffering. Moreover, doctors can overrule people wanting VAD if they do not consider they are sick enough. Doctors should not be the judges of whether a person’s life is worth living; every individual is responsible for their own lives. According to the ACT Government (and all Australian states), the principle of individual rights applies to LGBTIQA+ relationships and women seeking abortions, but apparently not to VAD. 

Additionally, Australian state medical models discriminate on life expectancy (perversely, people who could suffer more, must suffer more) and age and residency (children and non-residents must suffer when adults and residents need not). 

Suffering does not begin when there is less than 6 months to live with a terminal illness, when you enter adulthood, or when you cross the ACT border. As all people can suffer, all people should have the human right to access voluntary assisted dying. However, if the ACT Government implements aspects of this unethical discriminating Australian medical model, it will be marking some people as intrinsically ineligible for VAD and forced to suffer. 

Age discrimination in the ACT

So, does anyone know where the ACT Government stands on discrimination?

Consider discrimination based on age. The ACT Government has decided to reject the views of the states and increase the minimum age of criminal responsibility to 14 years. That would reduce the suffering of some children who would otherwise be tried as adults. It would be inconsistent to develop policy concerned with the welfare of children in the criminal justice system while being indifferent to the plight of all terminally ill children who are suffering unbearably. All people, including suffering children and infants (with parents and guardians acting on the advice of doctors), should have the right to access VAD. 

It is not just young children that are the problem for ACT policymakers. Dementia is the leading cause of death for women aged 75 and over and for Australians 85 and over. Advance care directives, which are legal now, should be extended in scope to allow the option of VAD for people who want to avoid being ravaged by dementia. It can be done and has been done overseas. Without VAD advance care directives, people might choose to acquire legal lethal substances. Without advance care directives, they realise that if they are to use their substances, that ‘it’s always too early to act until it’s too late to act’.

ACT Government must not discriminate

The responsible ACT minister, Tara Cheyne, has been a strong advocate of legalised VAD, like Michael Moore and Caroline Le Couteur in previous legislative assemblies. We are hopeful that the ACT can enact compassionate, ethical, and non-discriminatory VAD legislation. Its VAD legislation must be consistent with its VAD policy objective, but given it is seemingly developing discriminatory policy, it doesn’t seem to have an objective. Without a policy objective, the ACT Government won’t know what it is doing.

If the ACT’s VAD legislation does discriminate on the degree or type of suffering, life expectancy, age or residency and places doctors as arbiters of what is right for individuals, then the ACT Government will have to accept that people will continue to acquire legal lethal drugs. The police must then appreciate that being in the possession of legal lethal substances does not require welfare checks. It’s just a reflection that VAD legislation is not meeting the needs of Canberrans.

The Ethical Rights and Exit ACT submission to the ACT VAD consultation process is available here.