VOLUNTARY ASSISTED DYING BILL 2017

Written on the 2 November 2017

2 November 2017

COUNCIL 

Second reading 

GEORGIE CROZIER (LIB - Southern Metropolitan)

 

As members of Parliament and as legislators we are here to represent, advocate and act on behalf of our constituents. We have a responsibility to our electorates, to the Parliament and to the citizens of Victoria. That is why the debate on this bill is incredibly important. The nation is watching as this Parliament decides on whether to legalise voluntary assisted dying. So too are thousands of Victorians. Many have contacted all of us by email, letter and telephone. They have stopped us in the streets or texted us, all with their opinions and reasons for wanting to either support or oppose this bill.

Like many of us, I have spoken to and corresponded with many of those people and read many of their emails and their letters. Many have very strong opinions on why they have a certain view. Since the vote in the Assembly, where nearly all members voted on the bill and it passed without amendment although not in my view with a clear and overwhelming majority the debate has continued amongst the community and within the media, and it should have, because this is a highly complex bill, it is an important bill and it is a highly emotional bill.

Some believe it is the right of the individual to determine when they should end their life, and that if the bill passes they will have the autonomy which will bring them comfort should they be suffering an intolerable and terminal disease. Some believe it challenges medical ethics and principles. For some it challenges their own values and ethics. It challenges the law and the charter of human rights, and it challenges our health system.

As a former nurse and midwife I have seen suffering and intolerable pain in so many instances. I have also been challenged by this bill. For those reasons I believe this bill is the most important piece of legislation I will be voting on in this Parliament, and perhaps it may be the most important debate I will participate in in my entire parliamentary career. I have had the privilege to see hundreds of babies being born and the joy that brings. Sadly at times I have also seen the profound grief of parents following the end of a short life. I have held the hand of patients at the end of their lives after fighting a battle with cancer, some taken far too young who had their lives ahead of them, and others older, who had lived a full life. I have also seen the suffering and anguish of those who have attempted suicide by electrocution, only to have failed and been brought to the burns unit with the most horrific injuries. Ultimately, after weeks of treatment and care, their life ended. I have seen others who have been involved in serious car accidents that have left them with lifelong disabilities and in chronic pain.

That is why I have struggled with this bill. The physical and mental anguish, the pain and suffering for so many cannot be judged by legislation. To those who have written to me, of course I understand the concept that I would want to be in control of my life and have the choice to end it and not suffer like my mother, my brother, my father, my friend or whoever it is who has died of a terminal illness; I understand that they may feel strongly about this and that they want the control and autonomy to do what they like with their own bodies when they choose.

In an article written by Paul Kelly, who very eloquently puts so many of the concerns that I have regarding this bill, he refers to an analysis by John Keown, the Rose Kennedy professor at the Kennedy Institute of Ethics at Georgetown University. The article states:

it is claimed that euthanasia is about patient choice and personal autonomy. Indeed, this seems the philosophical essence of the bill as explained by Premier Daniel Andrews and Minister Hennessy yet it is manifestly false. The proposed law, by definition, is discriminatory and arbitrary: it gives certain people on certain conditions access to euthanasia and denies it to others.

That is in essence what I continue to struggle with the concept of the bill and what it is trying to achieve. So I have spoken to many people within our community and many people who have brought delegations to the Parliament around their concerns, who are either in support of or in opposition to the bill.

For the doctors and nurses on both sides of the debate, I want to acknowledge them, because they are at the coalface and dealing with this issue each and every day and will be if this bill passes. Overwhelmingly when I did hear from people within the community and those doctors and nurses and other health care professionals, they were against the bill. I understand that as well, because as health care professionals the care and treatment that you provide represents, I believe, the intrinsic value of care and protection that you want to be able to provide for that patient, no matter the circumstance. If I was still a health care professional and working within the field that I had been in the past, I would be a conscientious objector. I could not do what this bill asks.

If I could turn to the bill, the purpose of the bill is to provide and regulate access to voluntary assisted dying, to establish the Voluntary Assisted Dying Review Board and to make consequential amendments to other acts. Those acts include the Births, Deaths and Marriages Registration Act 1996, the Coroners Act 2008, the Drugs, Poisons and Controlled Substances Act 1981, the Health Records Act 2001, the Medical Treatment Planning and Decisions Act 2016 and the Pharmacy Regulation Act 2010.

I did not sit through the debate in the Legislative Assembly, but I understand that there were many stories from members who shared their own experiences of their loved ones very distressing, very sad and deeply personal experiences. So this debate, as one would expect, has at times been full of emotion and the personal stories that people have shared. We have just heard from Ms Fitzherbert, who spoke of her own personal experience, a very real one and one that so many of those who wrote to us did not understand. Members have shown compassion, been heartfelt and at times been very difficult to listen to.

Many of us are familiar with the effects on someone who has terminal cancer and the demands on their bodies and their loved ones and friends. Most of us would have had some direct experience of watching someone we love die. It is part of our very existence that our life at some point will come to an end. It is why those of us who have had a life-threatening illness also understand the fragility and random nature of how illness can strike any one of us at any time and, if we are fortunate enough to survive, understand the fragility and all the emotion that facing death can bring.

But this debate should not be about emotion alone. The very name of this legislation is designed to focus our attention on accelerating death for a few rather than a dignified life, caring and dying for all. The Parliament is considering this bill to sanction death through voluntary assisted dying, and it needs to be considered in that context. This debate is about the law and any unintended consequences a bill like this may bring to the Victorian community. The Premier in his contribution said, and I quote:

 

     no-one should have to suffer a bad death in the name of good ethics.

 

Those are my principles, and while I have said all along that this should be a debate about our principles, not the legal technicalities, I do want to make these points.

I do believe that this bill is very much about legal technicalities. That is what we as legislators are here to consider. The Premier also said that the bill is safe. He went on to say:

this legislation is safe. It is the most conservative model that has ever been proposed, let alone implemented, anywhere in the world. Its safeguards are clear: adult, Victorian, decision-making capacity, end of life, terminal stage, terminal condition, unbearable physical suffering, request must come from patient, not ahead of time, enduring and free of coercion.

So there is a presumption in this legislation that the system and all of its elements will work perfectly. By definition systems and the people who operate them are imperfect, and therefore mistakes will be made. I know that. Unlike the Premier, I have worked in the health system and I know that mistakes are made. I do not believe that the criteria set out in clause 9 deems this legislation, in the words of the Premier, to be safe.

If I look at the criteria, clause 9 of the bill sets out the eligibility criteria for those wishing to access assisted dying. The bill states:

(1)   For a person to be eligible for access to voluntary assisted dying

(a)    the person must be aged 18 years or more; and

(b)   the person must be

(i)    an Australian citizen or permanent resident; and

(ii)   ordinarily resident in Victoria; and

(c)    the person must have decision-making capacity in relation to voluntary assisted dying; and

(d)   the person must be diagnosed with a disease, illness or medical condition that

(i)    is incurable; and

(ii)   is advanced, progressive and will cause death; and

(iii)  is expected to cause death within weeks or months, not exceeding 12 months; and

(iv)  is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

I go to the argument of being 18 years or older, of being an adult. This is the autonomy that is spoken about by so many people: the choice of the adult. This is where I struggle. I cannot distinguish how, for example, a child that is 17 years and six months who has got an advanced cancer with a very poor prognosis they are only going to live for some months is deemed to be different from somebody just a few months older than they are because they are 18. That is what this bill says. How can legislation determine that a child has any less suffering? Why should a child's suffering be any less than an adult's? This bill says exactly that. It is a proposition I just cannot accept.

The criteria says that the person must be diagnosed with a disease, illness or medical condition that is incurable, advanced, progressive and will cause death, and is expected to cause death within less than 12 months. If I look at that 12-month period and Mr Melhem just spoke about it and he spoke of his concerns I have enormous concerns about that time period, too. Who can possibly predict a person's death within the time frame of 12 months? Doctors are not fortune tellers. They make clinical assessments, but do not always get them right. They too are human, and even clinical practice can vary greatly, even in this state, where we are regarded as providing some of the best healthcare of anywhere in the world. How many times have we all heard of a prognosis that has been wrong, where someone has been given a year to live and they live for many years after? We are fortunate that Victoria is home to some leading research and that we can access new treatments from other parts of the world that have been developed to treat and cure a myriad of diseases, including cancer. Some of those treatments can alleviate pain and provide better quality of life, together with palliative care initiatives, for patients facing terminal illness.

I make this point because this 12-month period was also not recommended by the committee, and it is not what occurs in Oregon known as the Oregon model, which is so often quoted and is the benchmark for this piece of legislation. We need to look at the differences between the bill and the recommendations of the committee, which we have heard members of the committee, including Mr O'Donohue, who chaired that committee, speak about. I commend all the members on the committee for the work they did. This is an important debate. It is an important debate for our community, but this legislation does not reflect what the committee said.

In certain areas, for instance, the eligibility rules, the committee recommended the 'final weeks or months of life'. Oregon uses six months as an outer limit; this bill uses one year as an outer limit. Regarding medical experts, both doctors require proper qualifications and doctors must make judgements independently, but the proposed legislation says that one doctor must have 'relevant expertise and experience' and both could be GPs.

I have a real issue with this. I have a particular issue regarding those people in rural or regional Victoria that do not have the same access to the medical expertise that people in the city have. It concerns me that people in a certain community could have a conscientious objection to this. Those individuals would have to travel to a bigger regional centre, for example. How does that doctor, how do those people who have no affiliation with that individual that patient, the community or their family understand what has happened?

All of these issues are concerns in a practical sense, and I could go on and on and on about the concerns that the committee raised, their recommendations and what the proposed legislation is.

Again the criteria require that a person must be experiencing suffering that cannot be relieved in a manner that a person considers tolerable. The word 'suffering' in the bill is not defined, and again it is very subjective. I have explained that. I struggle with that concept. I cannot distinguish the suffering of one individual from another's. The Scrutiny of Acts and Regulations Committee made that point with a submission to that very committee that spoke about the discriminatory nature of this bill as to who is excluded from accessing voluntary assisted dying on so many elements. This element, the suffering, comes in so many forms, and the mental anguish for those facing their own mortality can be immense.

The rollercoaster of emotions that may occur following treatment, whether that be depression, fear of dying, loneliness, exhaustion or fear that they are a burden to their family, are all a reality for those facing and dealing with a terminal illness. I know that. I know that very clearly. It does happen. Those emotions may fluctuate day to day, week to week, treatment to treatment. My concern is that this bill, despite the best efforts of doctors, may result in an assessment of a person's state of mind that may not be an accurate one, and that is clearly an issue when the patient might have the substance and we do not even know what the substance is going to be sitting there in the locked box somewhere in their home and then mental illness or another issue might arise. They could develop chronic depression in that time. That might develop some other form of mental impairment. It could fluctuate, and there will be no further assessment of that individual once that cocktail of substances has been prescribed. I find that very concerning in relation to how this bill will actually operate.

The bill says the safeguards are there for people not to be subject to coercion. I have concerns regarding that part of the bill as well. How will we ever truly know that someone is not being coerced and that exploitation of their health status will not be used for unscrupulous reasons? Those who support the bill quote Oregon and say that as far as they know that has not occurred. How do we know that? Is the data collected? I have not seen any evidence to suggest that that element is not what occurs. None of us will ever truly know if that occurs, so I am in no way convinced that this legislation provides that the state of Victoria can know that and can provide a safeguard against coercion. We know coercion can be subtle. We know that elder abuse is happening in our own communities today behind closed doors by people too often that are trusted and loved.

The Royal Commission into Family Violence looked at this issue. They made that point that coercion can occur and that the vulnerability of some members of the community occurs, especially in the elderly but also within multicultural communities, and there is no doubt that the elderly and others for whom English is a second language are vulnerable groups that could be taken advantage of by unscrupulous family members. This legislation does not provide adequate safeguards for those groups of vulnerable Victorians, and there is no requirement for broader checks to be undertaken to see if undue influence or pressure is being applied. In addition, there is no recourse to the Victorian Civil and Administrative Tribunal for family members who have concerns about what may be happening with a loved one. These are all real elements for which this legislation does not provide safeguards.

As I mentioned, much has been said about the drug component a cocktail of some description that is still to be decided. There has been much written about this. I quote again the Minister for Health in a recent news article, where the health minister said:

There are a number of different compositions of different drugs. Ultimately it's about what is safest and best for the different conditions that might be likely to be able to access assisted dying.

For me, again, I struggle with this. I know how a drug comes into the system the safeguards that are in place, the clinical trials, what happens. Of course we cannot have clinical trials in this context, but that for me is very problematic. The substance may not be identified for months. This whole new process has no measures of monitoring until it is up and running, and I have so many questions about this substance. What will be the shelf life? What will be the stability of the drug composition? How will that dangerous cocktail be truly stored safely? And there are concerns from Rodney Syme, who of course is very supportive of this sort of legislation.

There is so much more I could say on this bill. I am very concerned about so many elements of it, and I see that my time is running out. I want to just say in the last few minutes that I have that the government said that the bill would be intact without amendment. The main architect and the chair of the ministerial advisory panel, Professor Brian Owler, who I also acknowledge did some tremendous work with this bill and with others, has also got concerns in relation to amending the bill. On 17 October he said:

This is a bill of integrity. If you start to change one aspect of the bill, I am fearful that you will compromise the safety and the safeguards for Victorians.

And now we hear the government is considering amendments. I ask: how can the government be so adamant to put out press releases together with Professor Owler, arguing the case that there can be no changes to the bill in its current form, and now be saying it is okay? In just a matter of days that is what the government has done. Why would the government not accept any of the 150 or so amendments in the Legislative Assembly, as proposed by members in that marathon last sitting week? I find it incredibly arrogant and deceitful on such an important bill.

In conclusion, in making a judgement via a conscience vote that I have on behalf of the electors of Victoria and my constituents that I represent, I cannot support the government's bill. I cannot support it because a child's pain and suffering should not be regarded as being less than an adult's, and this is what this bill says. So much can happen within a 12-month time period, and no-one can predict someone's demise within that time. This bill cannot truly safeguard the most vulnerable members of our community. This legislation should not be a priority over better palliative care options, as thousands of Victorians die every year and this legislation does nothing to address that need. If this bill is passed today, it will fundamentally change the way we practise and deliver medical and health care in Victoria.

Finally, I believe that we should not be influenced solely by our emotions or the experiences that so many of us have had with the loss of a loved one in making a decision about this bill, that as legislators we understand the details of what is being asked of us to consider on behalf of all Victorians and take into consideration the legal experts who have expressed their concerns about the legality of the bill, protective measures, the breaches of human rights and the concerns regarding the practical realities of how this bill will operate and that we must listen to the hundreds of doctors, nurses and healthcare professionals who all object to this legislation as this bill will fundamentally change the way we practise and deliver medical and health care in Victoria.

Debate adjourned on motion of Mr LEANE (Eastern Metropolitan).

Debate adjourned until later this day.


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