Light on Logic

LIGHT ON LOGIC

A Response to MY LIFE, MY CHOICE

The Report of the Joint Select Committee on End of Life Choices

Presented by Ms A. Sanderson, MLA & Hon C.J. Holt, MLC

Presented to the 40th Parliament of the State of Western Australia, August 2018

1. Introduction: The problem of starting with “absolute individual autonomy.”

1.1. This Report relies heavily upon a fundamental commitment to the idea of individual autonomy. The Joint Select Committee Chair, in her Foreword, makes this abundantly clear: the basic idea of individual autonomy grounds the alleged right of an individual to determine his or her own time and manner of death; she argues that this is simply an extension of a “competent individual’s absolute right” to refuse food, water, or medical treatment. These “absolute rights” are taken to define a principle: “This principle means that competent patients are free to make their own medical treatment decisions.” In end-of-life situations, this principle of absolute individual autonomy is said to warrant the right of an individual to legalized assistance in terminating his or her own life.

1.2. In terms of the Report’s ethical argument this alleged principle of “absolute individual autonomy” is sheeted back to Immanuel Kant and John Stuart Mill (On Liberty, 1859). Mill famously declared: “The only purpose for which power can rightly be exercised over any member of a civilized community, against his will, is to prevent harm to others.... Over himself, over his own body and mind, the individual is sovereign.”

1.3. On the assumption of the validity of this alleged basic right the Report concludes: “Individuals exercise independence and autonomy in their daily lives and want to be able to make autonomous choices when they are dying. One of those choices should be to manage the place and time of their own death, through voluntary assisted dying.”

1.4. The Report’s initial focus upon “absolute individual autonomy” means that little ethical consideration is given to communitarian values. The Report reaches its conclusions independently of the discussion of the problematic nature of the individualism that in recent years has been recognized to have had a noxious influence in ethical discussion since the late eighteenth through at least until the second half of the twentieth century.

1.5. The problem is that, by seeking to base an argument almost solely on alleged inalienable individual rights, this fundamental ethical commitment of liberal democratic societies tends to allow each individual to do his or her own thing so long as that does not encroach on the capacity of other individuals to do their own thing – “you do your thing and I will do mine.” Unfortunately, in this event, an insidious Emotivism* takes over: If what is regarded as “good” is what I happen to regard as good, while acknowledging that what you regard as “good’ may differ from what I regard as good, then inevitably, the concept of moral truth goes out the window even before we start.

1.5a. *Emotivism is a theory of ethics which holds that ethical statements “are neither true nor false but express emotions, desires or attitudes….To affirm, for instance, that an action is morally right is, according to emotivism, to show a favourable attitude towards the action.” (Dictionary of Philosophy, ed. Thomas Mautner, London: Penguin, 1996,p. 184, entry under “Emotivism”). To a considerable extent an inherited Emotivism in contemporary liberal democratic societies explains why resort to slogans and placards and street marches has become a standard way of promoting a moral commitment in such societies.

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1.6. Effectively, this Report, with its commitment to “absolute individual autonomy” uncritically and perhaps unwittingly accepts an Emotivist position, and then struggles with consequent logical inconsistencies as it t seeks to win support for its own conclusions by resorting to a catalogue of emotionally disturbing experiences of extreme end-of-life suffering. In the end the Report fails to get beyond this fundamental Emotivism. Indeed, though the Chair declares that dying in a setting of a patient’s choosing is a humane and compassionate act that is “fully in keeping with modern medical ethics,” it is as though the paradigm critique of Emotivism, for example of Alasdair MacIntyre in After Virtue (1981), had never been written. This fundamental ethical deficit is an underling problem of the Report.

1.7. This deficit is illustrated by the fact that once a principle of absolute autonomy is uncritically accepted, ethical argument tends to come to an end. Instead, this Report tends to rely upon the anecdotally established fact that numbers of people “want more say over their medical treatments,” and that there is “broad community agreement regarding individual autonomy.” This result of polling, rather than of rational ethical argument, is then said to “form the basis for the Committee’s recommendation that the Western Australian Government draft and introduce a Bill for Voluntary Assisted Dying.” Clearly, the methodology of the Report is light on logic and heavily reliant on pollsters.

1.8. Over the last four decades, the critique of an Emotivist ethic of individual human rights based upon the alleged absolute autonomy of individuals has shown that individual rights can rarely if ever be absolutized. The right to freedom of speech, for example, does not extend to the right to call out “fire” in a movie theatre, particularly when there is no fire. The right to religious freedom will not be extended to cover female circumcision if it conflicts with the basic ethical perceptions and shared reasoning of a community which finds this practice abhorrent. Similarly, the religious freedom to refuse blood transfusions can be over-ridden by a Court’s decision to permit a blood transfusion in the case of a minor, even in the face of opposition from the child’s parents, if the court, effectively representing the wider community, judges that a transfusion would be in the best interests of the child.

1.9. Moreover, it is clear, even from the Report itself, that the ideal of individual autonomy cannot be absolutized and made into the stand-alone basic value that the Report otherwise tends to assume. For a start, the Report’s fundamental argument entails that individual autonomy is not to be extended to every individual in the community, but only to those who are said (somewhat arbitrarily) to qualify - by residing in Western Australia, by having reached 18 years of age, and by being in “a terminal and irremediable condition” of suffering, with the prospect of death within “the foreseeable future” (which is estimated normally to be about six months). These community requirements are therefore to be enshrined in the proposed legislation. However, once the basic value of absolute individual autonomy is uncritically accepted, the imposition of restraints of this kind becomes somewhat arbitrary and thus problematic in purely logical terms.

1.10. Indeed, the Report even somewhat confusedly implies that the exercise of absolute individual autonomy by every individual would, ethically speaking, be a bad thing. Suicide is not to be encouraged, for example, because it is implied that this would be a bad thing. And, we are assured that we are not to fear the “inevitably slippery slope” which might end up with minors, or mentally incapacitated people, (or even simply very old people with diminished quality of life?), getting the same rights at law as those judged to qualify as being in a terminal and irremediable condition. This thinkable extension seems also implicitly to be acknowledged to be a bad thing from the point of view of the community generally, regardless of what an individual might regard as a basic right.

1.11. The value of individual autonomy which this Report seeks to uphold at least in specified circumstances is further eroded in an additional important respect. Despite trying to argue that governmental intervention should be kept at a minimum, and that ideally an individual patient should preserve his or her autonomy by administering a life-terminating drug him or herself, rather than relying on others, the exercise of a person’s alleged right to legalized assistance to end his or her own life, is nevertheless itself further circumscribed. It can only be exercised subject to community sanction: for the final decision is not the patient’s alone, but is to be made by a panel of at least two other authorized individuals. It is proposed that these “permission givers” are to adjudicate the legitimacy of an individual’s request, presumably by making an assessment of a patient’s mental capacity and an assessment of the degree of anticipated pain and suffering, in addition to making an assessment of his or her legal qualification to make it (ie. being a Western Australian resident, and being over 18 years of age, and also being in a terminal and irremediable condition with the prospect of death in the “foreseeable future”). The individual’s alleged autonomy is in this way in fact subject to the permission of the community whose representative the “permission givers” are.

In other words, voluntary assisted dying is not to be freely available ‘on demand’ as an inalienable human right. It is a right which the Committee “deems” to extend to a limited range of individuals. We have therefore to ask whether the notion of “absolute individual autonomy” is not something of an illusion. Because of the admitted need of controls, requests for assisted dying have to be assessed and approved by independent parties. But this means that the ultimate decision would not be the patient’s at all, precisely because specified concerns of the community also have to be met. In this case, what has become of the basic ethical value of “absolute individual autonomy’? And are these the only concerns of the community that might need to be met?

1.12. This already demonstrates how impossible it is for this specific end-of-life issue to be satisfactorily handled by concentrating on the alleged ethical value of absolute individual autonomy, and the consequent alleged right (post John Stuart Mill, et. al) of individuals even in western liberal democratic societies to act freely, without a balanced consideration of the wider communitarian implications of an individual’s actions. Clearly, individual freedoms are necessarily less than absolute. John Stuart Mill’s demand for “individual sovereignty” cannot really be met.

1.13. As we shall see, this reliance on the value of “absolute individual autonomy” ultimately operates in a way that is logically harmful to the over-all thinking of the Report.

2. The ethical importance of communitarian values.

2.1 Unfortunately, as a consequence of its fundamental commitment to “absolute individual autonomy,” this Report by-and-large therefore leaves the communitarian implications of this end-of-life issue either entirely unaddressed or unresolved.

For example, there is no real consideration of the possible impact that the legalizing of assisted dying could have over time on community attitudes to life and death generally, and to the consequent weakening of a community’s commitment to the absolute value of human life. Despite the fact that the question of the social impact of legalized voluntary dying is admitted to be something to be taken seriously, it actually tends not to be taken seriously but rather to be dismissed on grounds that, in terms of logical coherence, are far from satisfactory. This is clearly illustrated by the Report’s account of the Committee’s reasoning in relation to publicly expressed concerns about the possible implicit support that assisted dying might give to people contemplating suicide.

2,2. The Report’s commitment to “absolute individual autonomy” and its concomitant lack of focus on communitarian concerns, is evident in the account of the Committee’s thinking in relation to the impact that legalized assisted dying might unwittingly give to people contemplating suicide. There is a brief discussion of the concern that suicide rates might rise in the wake of the proposed legalization of assisted dying (this concern was raised by the AMAWA, and others, and also picked by in the dissenting minority report of Liberal MP Nick Goiran). This concern is dismissed, but the Report’s argument in support of this dismissal is hardly convincing:

a. First, it is acknowledged in passing in the Report that in the Netherlands there are anecdotal reports that numbers of suicides have increased since voluntary assisted suicide has become legal. Indeed, on p. 16 the Report in fact notes that the AMAWA (and others) expressed concern about rising suicide rates in the Netherlands as a result of that country’s end of life laws. But then the Report adds: “although claims about increased suicide are disputed by other evidence received by the committee (for further information, see chapter 5)”.

b. However, when we turn to its own Chapter 5 this “further information” is revealed to be reported evidence of the impact of voluntary assisted dying on the incidence of suicide in USA. In USA this matter is said to be “disputed.” Thus, this “other evidence “ does not relate to the Netherlands where it is alleged to be “disputed” but to the USA. Even this state of disputation in USA only means, however, that the issue in the USA is still an open question that is yet to be resolved.

c. But, then the Report notes in a passing reference that in Switzerland suicide rates have actually been falling since 1942, the suggestion being that the introduction of legalized assisted dying has had no negative impact on suicide rates. We note that this decrease in suicide rates in Switzerland is signaled without any discussion at all of why this might be so. (Is it that there has been an increasingly higher standard of living in Switzerland since World War II with fewer life-disturbing problems? Or is it that health care, including mental health care, has become increasingly much better in Switzerland than in most other places?)

d. In any event, very surprisingly, in this promised discussion of the possible tacit encouragement of legalized assisted dying on suicide rates in Chapter 5, the alleged fact of the reported increase of suicide in the Netherlands since the introduction of legalized voluntary assisted dying, which the AMA signaled as a concern, is unfortunately not addressed. It is effectively side-stepped, first by reference to “disputed” evidence in USA, and then to the experience in Switzerland, and is thus left unresolved.

This is a clear indication of the Committee’s perfunctory handling of the possible communitarian implications of legalized assisted dying. It is far more interested simply to elevate the ethical value of “absolute individual autonomy” at the expense of a careful consideration of wider communitarian concerns. In the process the views of the AMAWA tend simply to be set aside.

2.3. The almost exclusive reliance on the notion of “absolute individual autonomy” also means that nothing is said about the impact that legalized assisted dying could have over time on the community’s shared perceptions of the medical profession and on the basic trust that the community normally places in medical practitioners. This is a very serious matter. Even so, no consideration is given to the possible negative impact of the proposed legislation over time on the trust the community normally places in medical doctors always to try to save life and eliminate human suffering. Indeed, the possible negative impact of casting members of the medical profession in a role associated with the intentional termination of life does not even rate serious consideration in this Report.

2.4. Even worse, if anything, the Report’s commitment to the value of “absolute individual autonomy” unfortunately leads to a tendency to disparage the role of the medical practitioner in end-of-life decision-making. It is suggested, for example, that the “absolute autonomy of the individual” means that the patient should ideally be independent, and therefore free even of dependence on the medical profession. The idea of autonomy is thus said to have displaced the idea that “the doctor knows best.” Absolute independence in end-of-life situations is in this way implicitly valued above dependence on the medical profession.

However, there is really no ethically based discussion of why independence is to be so valued. It may in fact be argued that human inter-dependence, rather than absolute individual autonomy and independence, is essentially a good thing. Human inter-dependence is essential, for example, to being a human person, as distinct from a mere individual. For while an individual is by definition conceived in separation from others, a person is defined in relation to others. We discover our personal identity in relation to others (sons and daughters have their identity as sons and daughters in relation to parents; employees have their identity as employees in relation to an employer, and so on). Indeed, we find our personal identity in inter-personal give-and-take, by addressing others and expecting a response of similar kind from them. To be human persons we thus depend upon one another so as to be loved and to love. It is not therefore transparently clear that inter-personal dependence is a bad thing. Indeed, the opposite is the case. For all these reasons it is a good thing.

In time of serious terminal and irremediable suffering we rightly depend upon others for love and care. Normally in this circumstance we freely and gladly depend upon the medical profession for expert professional advice as well as for the alleviation of suffering. Even in giving informed consent to a treatment, we depend upon the initial advice of the medical profession. This dependence upon the medical profession cannot be assumed to be a bad thing simply because it impinges on individual autonomy.

In the situation of apparently terminal and irremediable suffering we may in fact rightly value the assistance of those upon whom we depend and in whom we place our trust, including members of the medical profession. Such dependence is not a bad thing, and is certainly not something, as the Report tends to suggest, that is somehow less to be preferred than the exercise of individual autonomy. Indeed, even the notion of “voluntary assisted dying” is hardly compatible with “absolute individual autonomy.”

2.5. While the Report is anxious to allow legalized assisted dying to those who wish to exercise the “absolute individual autonomy” to determine their own time and manner of death, the question of what is in the best interests of patients generally also has to be considered. The Report appears to adopt a rather simplistic and over-sanguine attitude with regard to a patient’s own decision-making processes. The assumption seems to be that, were assisted dying to be legalized, this difficult area of human decision-making would become relatively straight-forward and trouble-free. All that the Committee is really concerned to put in place are the public “controls” already discussed — controls on the patient’s competence to make such a decision (the residence qualification, the age of the patient, the determination of the terminal and irremediable nature of the patient’s condition, and the foreseeability of death). Understandably, these controls are to be put in place, effectively in the hope that there will be no broadening of the scope of the legislation or liberalizing of its application – ie. no “slippery slope”.

However, no attention appears to have been given to the possibility that patients might be exposed to subtle psychological pressures once they are faced with the legalized possibility of assisted dying. Indeed, just to be faced with having to decide to end their own life, or not make such a decision, may be an added burden in end-of-life suffering to patients generally. This is not to mention the danger of a patient’s feeling that he or she was somehow obliged “to do the right thing” in order to please and help relatives, by releasing them from the burden of care.

2.6. At this point we may well therefore ask how a panel of “permission givers,” who are charged with judging a person’s competence, could come to the assurance also that patients who are judged to be technically competent to qualify for assisted dying are not subject to subtle social and psychological pressures at the hands of near-relatives and others? How are such subtle pressures to be identified by “permission givers”? To imagine that a panel of two “permission givers” could be in a position to eliminate this possibility, entails that they would have to be omnipresent with a patient over a period of months, and not just consulted on a couple of relatively brief occasions. In other words, how is the possibility of the subtle manipulation of a patient by others in the decision-making process to be eliminated? And how can any third party be sure that a patient’s decision is entirely free and autonomous? Surely, this is a legitimate community concern.

2.7. That this is not just a notional or theoretical possibility is evidenced by the fact that there have been recent examples of legal convictions resulting from the encouragement to suicide for financial gain. It is clear that the current prohibition against assisted voluntary dying is designed to eliminate even the possibility of this. The question is: How can the legalization of assisted dying fail but to increase this insidious possibility?

2.8. There are also ethical problems relating to the patient’s “advance healthcare planning.” The Report begins with a useful discussion of advance healthcare planning. A patient’s “competence” to make a request for assisted dying usually means that a decision must be made before the time of the need to implement it. Hence, an advance healthcare directive may be made, perhaps with the support of enduring power of attorney, so as to take care of situations when a patient loses capacity to make his or her own decisions. Curiously, in Western Australia this option is not often taken up. It is gratifying to know that the Attorney General has already acted to improve the legislation relating to a patient’s desires about palliative care and life-sustaining treatments. (See, Simon Millman, The West Australian, 24 January 2019, p. 24)

2.9. However, the Report has nothing to say about those who make a decision “before the time” and then at the actual time change their minds. Perhaps it is imagined that a change of mind in this area of human decision-making is of little consequence. However, it is not difficult to find anecdotal evidence to suggest that those who originally express their commitment to voluntary assisted dying often change their minds when it comes to the point. This is particularly so when it is found that the medical profession is able successfully to control pain, and that the degree of it is not as it was originally feared to be.

2.10. Furthermore, some patients might have changed their minds were they still in possession of the capacity to do so. Some patients may not be capable of expressing a change of mind, even if they might desire to do so. Given that even sedated patients can often hear what is going on around them even though they cannot themselves communicate, how is it to be determined that a dying person’s original wish has not been replaced in their own minds by the wish for the doctor simply to come to their bedside to provide care and the alleviation of pain rather than the termination of life? Clearly, healthcare directives about desired treatment and expressed wishes in palliative care, and about life-sustaining treatments, operate under a quite different dynamic from requests for assisted dying.

3. The possible negative impact of legalized voluntary assisted dying on palliative care services.

3.1 The Report readily admits that one of the present causes of protracted end-of-life suffering in Western Australia is inadequate access to palliative care services across the State. Its recommendations about the improvements needed in this area, including the need for more resources to be put into palliative care, the universal provision of palliative care services, and more co-ordination of palliative care services across the State, are enthusiastically.to be welcomed.

3.2. However, there is nothing in this Report about the possible negative impact of legalized assisted dying on the community’s commitment to the provision of better and more extensively available palliative care services. Even though the Report itself admits at the outset that the chief cause of the perceived need for the legalization of assisted dying is a current lack of palliative care services in Western Australia (or, at best, the sporadic availability of these services) and calls for this deficit to be addressed across the entire State, there is ironically no real consideration of the possibility that the adequate provision of such services might in fact be further weakened once assisted dying becomes legal.

3.3. Indeed, the Report does not seem to indicate any awareness that there is a fundamental logical tension implicit in the Report itself, between its very welcome findings in relation to the need for more and improved palliative care in Western Australia, and the argument for the alleged need for voluntary assisted dying. For, it seems a matter of simple logic that the legalized provision of the option of assisted dying would clearly lessen the need for the universal provision of such palliative care services, and thus lessen the public pressure to improve the provision of such services. It would in fact be a cheaper option. If a community were already to provide those suffering from terminal and irremediable illness with the legalized option of simply ending their lives themselves/or having their lives ended with the assistance of others, it seems to be necessarily entailed that there will in fact be less need of such services. As a consequence the community’s commitment to the aim of achieving the goal of the universal availability of palliative care services will necessarily be weakened, if not insidiously undermined.

3.4.That this is not just a theoretical or notional concern is indicated by anecdotal reports of the deterioration of the provision of palliative care services in the Netherlands since the legalization of voluntary assisted dying. Members of the Committee did not actually visit the Netherlands to observe this situation at first hand and it is difficult to find evidence of any detailed discussion of the reported weakening of palliative care services in that country since the introduction of voluntary assisted dying.

4. The possible negative impact of legalized voluntary assisted dying on pain relief research and development.

4.1 In a similar way, once a community embraces legalized assisted dying it seems to follow that it no longer really needs to be too concerned about finding more refined and effective pain killing drugs for use in end-of-life treatments and care. If voluntary assisted dying is used as an alternative to the treatment of pain how can it be otherwise? Since the urgency of the actual demand for these will automatically be lessened once legalized assisted dying becomes an option, it would be easy to argue that the increased resourcing of this kind of research will no longer really be necessary. It is thus a legitimate community concern to raises a question as to whether the availability of legalized assisted dying may have the negative effect of taking the foot off the accelerator in relation both to the funding of improved palliative care services and to the support and development of pain control research in relation to end-of-life treatments and care.

5. Shortcomings in the Report’s handling of the “slippery slope” argument.

5.1. Another clear community concern has to do with the possible future extension of the proposed legislative provisions to allow minors, mentally depressed people, and even aged people with diminished “quality of life” to accesses “voluntary assisted dying.” The Report’s handling of the “slippery slope” argument is also lacking in logical coherence:

a. First, it is imagined that the “slippery slope” argument is dealt with simply by saying that a “slippery slope” is not an inevitability, because the Committee has been able to point to places that have enacted assisted dying legislation but where there has been no extension of its provisions.

b. At this point, the pattern of argument tends to be similar to that governing the Report’s reasons for dismissing the possibility that assisted dying could encourage suicide. Once again a serious issue is matched by a counter-instance found somewhere else as though this amounted to a conclusive argument.

c. On these grounds “the slippery slope” towards the extension of the availability of voluntary assisted dying is therefore said not to be a pre-determined inevitability.

d. Thus, despite the extension of the legislation in some countries (ie Belgium), examples are cited of other countries where legalized assisted dying that was originally restricted to specified categories of individuals has not led to its extension to other categories of individuals.

e. In this case, while it is admitted that Belgium might have moved towards further development of the legislation (including allowing minors to decide to end their lives as well as adults) this is said not to have happened in Oregon, in the USA.

f. On these grounds “the slippery slope” towards the extension of the availability of voluntary assisted dying is therefore said not to be a pre-determined inevitability. Anxiety about an alleged “slippery slope”, we are assured, should therefore not really be a community concern.

5.2 However, whilst not being an inevitability, this remains an admitted thinkable possibility (ie it is logically possible, or thinkable without self-contradiction) and a thinkable possibility is all the “slippery slope” argument actually needs.

For a concerning possibility is sufficient to generate community anxiety about the future extension of the legislation to include other than those originally covered by the initial delineation of restricted categories of qualifying individuals. That it is not an inevitability, in the sense that it is not universally predetermined, is really cold comfort in the face of this ever-present logical possibility. In any event, it is implicitly acknowledged that the extension of the legislation to include other qualifying categories of individuals would be an undesirable “bad thing,” even though no actual argument is furnished as to why this should be so.

5.3. Unfortunately, concerns about the possible extension of the legislation will inevitably continue to be fed, because there is in fact an implicit logical pressure towards this outcome that is inherent in the Report’s own commitment to “absolute individual autonomy.’ In other words, the principle of ‘absolute individual autonomy” brings with it an inner logical pressure to move beyond the application of the proposed legislation to restricted categories of individuals.

While the Report stresses the need for a person to be competent to make a request for assisted dying, and that this means being an adult of over 18 years of age, and not a minor, if the fundamental value of “absolute individual autonomy” is accepted, the next purely logical question is: exactly why should the suffering of an 18 year old person in a terminal and irremediable condition be somehow different, and medically handled entirely differently, from the suffering of a 17 year old person in a similar terminal and irremediable position? This is the implicit danger of starting with an ethic of “absolute individual autonomy.” Thus, that a slippery slope is not an inevitability does not mean it no longer remains a concerning possibility.

5.4. After all, the actual reasons given for legalizing voluntary assisted dying really have nothing to do with age. They have to do with a patient’s terminal and irremediable condition and foreseeable death, both of which may be determined regardless of age. A weakness of the Report is the lack of any argument as to why terminal and irremediable suffering should justify permitting the act of assisting a death at age 18 or19 but not at 16 or 17. And if a minor is thought not to be competent, why could not a minor’s request for voluntary assisted dying be agreed to by parents or guardians along with professional “permission givers”? Clearly, all this is somewhat arbitrary.

5.5. Indeed, at law, the age of discretion when individuals may be held responsible for their own actions is 8 years of age. If, at the age of 8 years, a person may be held responsible for killing others, why is he or she deemed not to be responsible for making a decision to seek assistance to kill him or herself? Clearly, this disturbing possibility demonstrates that, once the basic value of “absolute individual autonomy” is uncritically accepted, the imposition of restraints becomes arbitrary and thus problematic in purely logical terms. In the Chair’s Foreword she speaks of limiting the application of the proposed legislation to restricted categories of people that “reflect the values and safeguards we deem appropriate” Clearly, this is a matter that is simply “deemed” appropriate without logical justifying grounds. We should note the implicit Emotivism here.

5.6. The Report is confident that legislation specifically to permit adult people in a terminal and irremediable condition to be assisted to take their own lives will not be extended beyond the boundaries indicated by its originally specified categories of competent patients. An attempt is therefore made to persuade us that there is no “slippery slope”. However, even though, in current law there is a specified age at which a person becomes an adult, there is nevertheless a strong logical inclination to move towards a “slippery slope” outcome. This is not addressed in the Report, given that, in its haste to find examples of places where assisted dying legislation has not been extended, it is content to argue that it is not an inevitability. It remains a worrisome possibility. The Report thus tends to rely on good intentions at this point, rather than good arguments.

6. The official stance of the AMAWA against legalized assisted dying.

6.1. Although some members of the medical profession are reported to be prepared to countenance the introduction of legalized assisted dying and even to advocate for it, the AMA WA has made it clear that a very substantial section of the medical community is not in favour of becoming involved in voluntary assisted dying at all.

6.2 Indeed, both in its written submission and when giving evidence at hearings, the AMA WA frankly stated that it is opposed to the introduction of assisted dying in Western Australia. (Submission No. 685 from Dr Omar Khorshid, President, Australian Medical Association (WA), 15 February 2018, p. 1; and again, Dr Omar Khorshid, President, Australian Medical Association (WA), Transcript of Evidence, 18 May 2018, p. 13).

This quite unequivocal stance of the AMA is understandable, given the impact of the Hippocratic oath in the long history (since 470BC) of medical profession’s commitment to the alleviation of suffering and the saving of life rather than to the deliberate and intentional bringing of life to an end.

Furthermore, there is at least the suggestion in the Report that the medical profession is, generally speaking, content with current medical practice in end-of-life situations and is committed to its improvement, without embracing legalized voluntary assisted dying.

6.3. The exact identity of members of the proposed Panel of “permission givers” is somewhat unclear in its discussion of those who are effectively to represent the interests of the community over against the uninhibited free exercise of the wishes of the individual.

6.4. The Report hints that, in its submission to the Committee, the AMA was less than enthusiastic about the members of the medical profession being pushed into this role, and the Report is quick to recommend that no medical officer is to be required to become involved in assisted dying. The Committee therefore recommends that there will be no compulsory involvement.

6.5. Indeed, the AMA WA is of the view that, should voluntary assisted dying be made legal, a request for assisted dying should go to a panel for approval, in view of the fact that individual doctors are not best positioned to make these types of end-of-life assessments. (AMA transcript of evidence to the Committee, 18 May 2018).

As a consequence, we are told in the Report that the considered view of the AMA is that “if” assisted dying were to be legalized (we note this significant qualification) some competent officers would need to be trained and equipped for the role. Ideally, individuals other than members of the medical profession might need to be recruited to perform the role of “permission givers.” In his public comment on this, Dr Omar Khorshid, the then President of the AMA WA said: “For those people who can’t administer it themselves, should it be a doctor, should it be another type of practitioner — that’s a debate we need to have.” (The West Australian, 17 May 2018)

6.6.. It is understandable that the majority of members of the medical profession are cautious about having the character of their profession compromised by its incorporation into this life-terminating regime. Some “other kind of practitioner” would place the “permission givers” between members of the medical profession (with a commitment to preserving life and alleviating the suffering of the living in accordance with the Hippocratic oath) and veterinary surgeons (whose work routinely involves the “putting down” of decrepit and physically damaged animals). Whether the community generally would be comfortable with allowing the professional character of the medical profession to be compromised in this way seems problematic.

6.7. In any event, the proposal of identifying “a different kind of practitioner” because medical doctors may not feel competent to perform this task, entails that some agency would need to be established to appoint, train and equip, and then certify a panel of people for this role. For this to be available across the State of Western Australia, given that the proposal is intended to make up for the shortfall in palliative care services right across the State, multiple such panels of “permission givers” would be required, perhaps one such panel in every hospital. Apart from the inevitable bureaucratizing that this would involve, we may well ask whether the cost of doing this might be better directed towards the better and more extensively available palliative care and more research into effective pain relief which the Committee itself identifies as the chief cause of the alleged desirability of the legalization of assisted dying.

7. The importance of the ethical “law of double effect” implicit in current medical practice.

7.1. It seems clear that the medical profession generally is comfortable with its current reliance on the “law of double effect” in the handling of end-of-life suffering. The long-standing ethical principle of “the law of double effect” has been appealed to at least since the thirteenth century. In relation to end-of-life medical care, the law of double effect allows us to hold that even if, by administering drugs with the intention of alleviating pain, life is thereby shortened (and even ultimately ended by the so-called “lethal dose”) such treatment is nevertheless ethically justified and permissible.

7.2. Clearly, the absence of an explicit intention to terminate life means that practices that rely upon the law of double effect do not inhibit the basic commitment to upholding the Hippocratic oath. For example, doctors cannot be held culpable, if after an organ transplant the use of immune suppressing drugs that are necessary to inhibit rejection, eventually might unfortunately contribute to the cause of cancer. For many medical practitioners this principle is normally sufficient to allow them to exercise their profession satisfactorily in end-of-life situations, without having to think of intentionally resorting to assisted dying.

7.3. Generally speaking, the Report’s considered discussion of “the doctrine of double effect” is helpful, and there appears to be agreement that no further legal protections are required other than those already provided in Section 259 of the Western Australian Criminal Code which effectively enshrines the principle of the law of double effect. Since 2008 this has explicitly included coverage of palliative care treatments. Doctors of medicine are not held culpable if death occurs as a secondary contributing effect of the administration of pain killing drugs so long as the primary intention is the alleviation of pain.

7.4. “Palliative sedation”. The administering of drugs with the intention of alleviating pain, usually leads a patient to sleep more often, to “come and go” in terms of consciousness, before entering a condition of palliative sedation, which is sometimes referred to as “terminal sedation.” Unfortunately, the Committee favours the standardized use of “terminal sedation,” but does not reveal the reasoning behind this decision, other than signaling the desirability of achieving uniformity.

However, the phrase “terminal sedation” is in a sense predictive, for the question whether a period of palliative sedation is terminal, even though this may be thought to be “highly probable”, or even “certain”, can really only properly be so described after the event. Unfortunately, the term “terminal sedation” also suggests that it is a procedure that is pursued with the intention of terminating life. But as the Report itself explicitly says, it is actually a procedure resorted to “ in order to relieve otherwise intractable suffering at the end of life.” For this reason “palliative sedation” is to be preferred, given that the primary intention of medical practitioners is the alleviation of pain; the possible hastening of death may be a secondary effect of this, that is covered ethically by the law of double effect.

7.5. Otherwise, the Report’s recommendations and the Committee’s tacit approval of “palliative/terminal sedation” in current medical practice is positive and to be welcomed. (See Appendix below). Indeed, the Report is critical of the tendency to under-medication in current medical practice and recommends improvements in the treatment of patients, including the better provision of “palliative sedation.”

7.6. The need to resort to “palliative sedation” in order to control pain is tacitly acknowledged. Indeed, the Report is critical of the tendency of some doctors to under-medicate their patients. (The evidence of Case Study 4.1 on p.127-8 of the Report is crucial to this discussion). There are therefore recommendations about how current practice should be improved and regulated. The lack of mandatory reporting to this point in time, is one of the deficits in current medical practice, which the Report recommends should be urgently addressed, along with improvements in the provision of palliative are services generally across the State. It is for this reason that it recommends that incidents of “palliative/terminal sedation” should be identified and made subject to mandatory reporting.

7.7 Sometimes those who support assisted suicide argue that there is an anomaly in current medical practice insofar as assisted suicide is illegal, but patients in palliative sedation are denied food and that starvation leads to death. However, the relevant ethical literature convincingly demonstrates that a consideration of the important factor of intention means that this is only an apparent anomaly. The point is that there is a significant difference between knowledge and intention. In the case of palliative care, and specifically in the case of palliative sedation, the knowledge that a patient is going to die is accepted as normative. This in fact is what prevents any attempt “officiously to keep a patient alive” by force feeding. However, this knowledge is entirely different from the intention actively to bring about death by the administration of a lethal drug. To deliver palliative care to somebody who is known to be dying and who is sleeping but no longer eating, is obviously entirely different from assisted suicide. The important distinction between knowledge and intention lies at the heart of the ethical debate, but is often over-looked.

8. Why then is voluntary assisted dying still thought to be necessary?

8.1. Having made recommendations about the more adequate provision of palliative care services generally across the State, and about how actual medical treatments in current approaches to end-of-life situations might be significantly improved, the Report then begs an obvious question about whether these recommended improvements might actually be expected to obviate the very need for the legalization of voluntary assisted dying.

This question becomes all the more pressing given that the Report identifies the inadequacy of the provision of palliative care services in Western Australia as the “chief cause” of unnecessary suffering which in turn leads to the contemporary perceived need for voluntary assisted dying. The Committee is to be commended for correctly addressing what it identifies as the cause of the problem with which it is concerned, but once the chief cause is addressed, especially in the positively helpful ways the Committee recommends, why should there be a continuing need to provide for the legalizing of voluntary assisted dying?

Clearly the AMAWA already believes that it is not necessary, even before the implementation of the Report’s recommended improvements in current medical practice. Why, in this case, is the legalization of voluntary assisted dying really necessary?

8.2. Surprisingly, even though it recommends improvements to current medical practice of palliative/terminal sedation with the intention of alleviating pain, it is nowhere argued in the Report that these recommended improvements would still leave current medical practice somehow lacking, or inadequate to the point of justifying voluntary assisted dying.

Given the Report’s implicit endorsement of “the doctrine of double effect” and its apparent approval of “palliative/terminal sedation,” it is something of a surprise, therefore, that it does not go on to give some well-argued reasons why this standing practice must necessarily be complemented or replaced by “voluntary assisted dying.”

Instead, the Report simply moves on to survey the experience in countries which have already moved to legalize voluntary assisted dying.

9. The negative impact of the Report’s initial commitment to “absolute individual autonomy” on its assessment of these current medical practices.

9.1. At this point the troublesome operation of the Committee’s initial commitment to the ethic of “absolute individual autonomy” becomes evident. For at this point the Report does not argue a case for the inadequacy of current medical practice. Instead, in this Report anecdotal accounts of negative experiences amongst relatives and friends in witnessing the deaths of their loved ones predominate over logical ethical argument.

9.2. Unfortunately, by cataloging a list of negative experiences of the processes of dying of near relatives and friends by those advocating voluntary assisted dying, to the detriment of a balanced reporting of positive experiences of “good deaths,” when patients peacefully pass from “palliative sedation” to the profound peace of the deepest sleep of all, the Report unwittingly supports a general fear of death processes in the community. This becomes the basis of the Emotivist case for legalized assisted dying.

9.3. This has to substitute for a logically argued case for the need of voluntary assisted dying. In a sense, however, without statistical evidence relating to current practices, such as recourse to “palliative sedation” and its effectiveness or otherwise, it is hard to see how such an argument could be mounted.

Obviously, before an actual medical need could even be rationally debated, we would need some relevant statistics, including comparative statistics about the number of deaths in Western Australia that have resulted from the “double effect” of pain relief drugs, the number of instances of “palliative/terminal sedation,” the average length of periods of sedation, so as to be able to judge whether this current procedure has actually been found wanting, and how often, and so on.

It is implicitly admitted in the Report itself that it does not have the statistical evidence necessary to make this judgment; hence, its recommendation relating to mandatory reporting. Given that up to this point there has been no mandatory reporting of these issues, there is currently a lack of statistical information relating to this current medical practice in Western Australia, upon which any possible short-comings might be determined.

9.4. Likewise, as a matter of logic, it seems to follow that the inadequate provision of universal palliative care services across the State, and their lack of co-ordination, which the Committee itself identifies as the chief cause of the current perceived need for legalized assisted dying, would surely need to be addressed before an argument to legalize voluntary assisted dying could hope to be sustained.

9.5. We thus have to take the Report at its word: there is no reasoned argument why current practices must necessarily and immediately be replaced or complemented by voluntary assisted dying: instead, the Committee has to rely on the ethical principle of “absolute individual autonomy” to warrant the alleged right of an individual to legalized assistance in terminating his or her own life. As the Report forthrightly says: “Individuals exercise independence and autonomy in their daily lives and want to be able to make autonomous choices when they are dying. One of those choices should be to manage the place and time of their own death, through voluntary assisted dying.

9.6. Clearly, a fundamental Emotivism rather than rational argument thus conditions the thinking of the Report and its outcomes. This can be discerned in its reliance on anecdotal evidence that illustrates, not a fear of dying itself, so much as a basic community “fear of the processes of dying.” This appears to be what grounds the contention that compassion in the face of suffering warrants the legalization of “voluntary assisted dying.”

10. A lack of terminological clarity.

10.1. Finally, the Report speaks of those in a “terminal and irremediable condition” of pain and suffering without clearly defining these terms. After all, we are all mortal and thus in one sense ultimately in a terminal and irremediable condition. Sometimes, it is obviously suggested that what is meant is that those whose deaths are judged to be imminent (within the foreseeable future or the next 6 months) and are thus more specifically in “a terminal and irremediable condition”, may be accorded the legalized power to bring forward the end of their lives, so as to avoid unnecessarily protracted suffering and pain.

10.2. However, the terms “pain” and “suffering” are not synonymous. Pain is a physical sensation; suffering is a psychological condition in which one wishes that one’s situation were other than it is, but it may or may not involve pain. One can suffer because of a bereavement, or unrequited love, embarrassment, or misrepresentation of character by defamation. Clearly, we can share one another’s suffering; we cannot share one’s another’s physical pain. Unfortunately, the Report does not distinguish the logic of “pain” on one hand and “suffering” on the other.

10.3. By definition “to suffer” actually means being in a situation of dependence and passivity (from pascho = allow or permit, as in “suffer the little children to come to me/allow or permit the little children…, etc; or, “She does not suffer fools gladly”). Suffering is the very opposite of being actively engaged in the affairs of life. Thus, to suffer and to be a patient actually entails being dependent upon others. (ie., “patient of suffering”). “Suffering” is thus not a synonym for being in pain, for one can suffer without being in physical pain.

In this situation we rightly value the love and care of others, and in particular the care and support of the members of the medical profession upon whom we thus necessarily depend. This is not something to be shunned as intrinsically bad, or to be disparaged. Dying with such dependence, rather than exercising ones individual autonomy by determining one’s own manner and time of dying, is quite positively not a kind of indignity.

It is certainly not to be regarded as something that must ideally be replaced by the exercise of “absolute individual autonomy” as though this were its polar opposite. Clearly, the exercise of autonomy is not, as the Report suggests, essential to dying with dignity.

10.4. The Report repeatedly speaks of the qualification to make the request for voluntary assisted dying in a condition of suffering but without any clear and explicit reference to the fact that a patient must also be in, or anticipate being in, very severe physical pain. For example, the list of qualifications — being a resident of Western Australia, having reached 18 years of age, and being in “a terminal and irremediable condition” of suffering, with the prospect of death within “the foreseeable future” (which is estimated normally to be about six months) — does not actually refer to the requirement that a person be in or be facing a period of extreme or uncontrolled physical pain. The Chair in her Foreword says: “those who are eligible for voluntary assisted dying must be experiencing grievous and irremediable suffering related to an advanced and progressive terminal, chronic or neurodegenerative condition that cannot be alleviated in a manner acceptable to that person, where death is a reasonably foreseeable outcome of the condition.” This unfortunately means that technically, a person could be judged to be competent to receive legalized assistance in dying, if he or she had received the prognosis of foreseeable death within an estimated six months, and be suffering in the sense of being entirely dependent on the care of others, but even in the absence of severe or uncontrolled physical pain.

10.5. One suspects that the Committee really wants to give people an alternative to current medical approaches to the handling of severe pain, especially pain that may be resistant to alleviation by the administration of pain killing drugs. But unfortunately, voluntary assisted dying opens the way for any adult who is resident in Western Australia “to determine his or her own time and manner of death” if he or she has received a diagnosis of a terminal and irremediable illness with death a possibility within the “foreseeable future” of the next six months or so, even in the absence of physical pain. The proposal thus probably unwittingly achieves much more than is intended.

11. “Individual autonomy”: Actually irrelevant.

11.1. Finally, it is important first to note that talk of the exercise of “individual autonomy,” despite its apparent capacity to beguile us into thinking that it might constitute a legitimate ethical argument, is in fact irrelevant to the question of the appropriateness or otherwise of “voluntary assisted dying,”

11.2 In other words, though the principle of “individual autonomy” is often called upon to give some kind of ethical respectability to “voluntary assisted dying” with its appeal to individual rights and freedoms, it is in fact an ethical “red herring.” The argument that leads to this inevitable conclusion may set out in three steps:

a. First, I would be surprised if anyone would disagree with the contention that we could hardly justify acting on a request for assistance in injecting a person with heroin on the ground that he or she wished to exercise his or her “individual autonomy” by freely deciding to become an addict. In this circumstance we would certainly be ethically right in refusing assistance. Who would think otherwise? Even trial “injecting rooms” are designed to save life - in the hope of giving people time and opportunity to shake free of addiction and to live. Assisting a person to become or remain an addict on the grounds of his or her right to exercise “individual autonomy” is clearly an entirely spurious argument

b. This means that the justification of “voluntary assisted dying” really has nothing to do with its alleged “voluntariness,” even if this is often cited as the basic justifying reason (as in the Report of the WA Select Committee). Clearly, despite the protestations of the Select Committee’s Report, the real reason for supporting “voluntary assisted dying” has to do not with a principle of “individual autonomy” but with the alleviation of anticipated protracted pain and suffering. “Voluntary assisted dying” is thus an alternative to palliative care, utilizing palliative sedation, backed by the ethical principle of double effect, as in current medical practice in end-of-life situations.

We have frankly to acknowledge that “voluntary assisted dying” is resorted to in circumstances where a patient is experiencing diminished quality of life to the point where it is judged (by the patient him or herself and by others) that his or her life is “not worth living,” This is actually a “quality of life” argument which is quite independent of talk of the exercise of “individual autonomy.”

c. Alas, it is disturbing to note that this very same “quality of life” reasoning — the relief of anticipated pain because of diminished quality of life when life is judged to be “not worth living” — may also be said to warrant involuntary or non-voluntary assisted dying. (Involuntary when it is contrary to a patient’s conscious wishes; non–voluntary when a patient is incapable of expressing any wish. eg. a baby, or a comatose patient).

In other words, as soon as this “quality of life” argument is espoused it has to be acknowledged that it could also apply to babies born with Spina Bifida, perhaps to Down Syndrome babies, in some places to baby girls (eg. not just ancient Sparta but in modern China), mentally retarded people, the senile and the demented, the severely incapacitated and those who are unable to enact the full range of behaviour that is typical of healthy human beings, and on and on. In all kinds of cases, and not just in end-of-life situations, a life could be judged to be a “life not worth living.”

Clearly, in order to be consistent, we are obliged to acknowledge that if a “quality of life” argument is brought to the justification of “voluntary assisted dying” it can also apply to non-voluntary and even involuntary assisted dying. And this transition is easily made, as was demonstrated in Nazi Germany where even doctors were beguiled into thinking that life was “no longer worth living” not just (as at first) in the case of the the severely handicapped and chronically sick, but (eventually) in the case of the socially unproductive, the ideologically unwanted, and even women and children suffering malnourishment, illness, and misery in concentration camps.

It is important to note that this is not a scare-mongering “slippery slope” argument; it is not suggested that what happened in Nazi Germany will also happen here. It is rather that the same argument was used in Nazi Germany as is at present used in contemporary argument in support of voluntary assisted dying. Given that this “quality of life” reasoning was obviously wrong in Nazi Germany, this same argument is just as wrong in contemporary Western Australia.

11.3 On the other hand, it is of some concern that the Report of the Remmelink Committee that reviewed euthanasia in the Netherlands (between 1990 and 2005), noted that when asked in 1990 and again in 1995, 50% of medical practitioners in the Netherlands said that they had or that they would be prepared to go ahead with assisted dying even without a patient’s explicit request. In one sense, this, appears to be a logically reasonable position, for, obviously, the justifying reasons for foreshortening periods of pain, is actually the same, whether assisted dying is voluntary or non-voluntary, or involuntary. So there is huge logical pressure, should voluntary assisted dying be legalized on these grounds, to move beyond it to non-voluntary and involuntary assisted dying. Clearly, it is important to acknowledge that it is ethically wrong in the first place.

12. Conclusion.

12.1. Clearly, this Report “My Life, My Choice”, however well intentioned, is light on logical coherence, deficient in terms of rational ethical argument, and far too heavily reliant on a commitment to the questionable notion of “absolute individual autonomy.” This means it relies implicitly on an Emotivist ethic of individual rights without due consideration being given either to the actual wishes of the medical profession, as explicitly expressed by the AMA in Western Australia, and irrespective of the possible negative social implications of such a measure for the wider interests and concerns of the community. This is hardly an adequately convincing basis to warrant legislative change in such an important area of human life.

+Peter Carnley 29 January 2019

The Most Revd Dr Peter Carnley AC,

Unit 3, 5 Irwin Street,

EAST FREMANTLE, WA 6158

AUSTRALIA

Email: petercarnley@gmail.com

APPENDIX:

Sections drawn from pp. 123 to 137 of the Report, relating to “the doctrine of double effect” and the current medical procedure of “palliative/terminal sedation.” These very helpful and crucial findings and recommendations are to be welcomed:

p. 123

What is terminal sedation?

4.51 When normal medical treatments cannot relieve severe symptoms such as pain and agitation, health professionals will sometimes treat a dying patient with terminal sedation.

4.52 Terminal sedation is the palliative care practice of gradually increasing doses of analgesics and/or sedatives, usually without providing nutrition or hydration, until a coma state occurs prior to death. Dr Keiron Bradley, a senior palliative care specialist with WA Health, confirmed that terminal sedation is a palliative care treatment to assist patients at the end of life: Palliative or terminal sedation is the use of medication to induce decreased or absent awareness in order to relieve otherwise intractable suffering at the end of life.

p. 130

Finding 28 The committee received evidence from government agencies, medical professional bodies and medical educators providing a consistent explanation of terminal sedation and its use as an appropriate and lawful treatment option for patients suffering refractory symptoms at end of life. There remains some confusion amongst health professionals as to the legal status and reasonableness of the clinical practice of terminal sedation and this confusion is likely to result in the denial of adequate symptom relief to some patients at end of life.

Recommendation 18. WA Health should provide specific guidelines on the use of terminal sedation by health professionals for patients at the end of life. These guidelines should include an agreed name and definition of the treatment. As per any other medical treatment, the requirement for informed consent must be clear. The treatment must be specifically noted in the medical record as ‘terminal sedation’.

p. 137

The committee received a submission that called for reform of the Criminal Code. …However, in the committee’s view section 259 provides an appropriate defence to a charge of unlawful killing. A health professional is protected when they administer medications at end of life (as part of palliative care) if they do so in good faith; and with reasonable care and skill, by reference to the person and all the surrounding circumstances.

Finding 29 There was no overwhelming call from the medical profession or the wider community for amendment to section 259 of the WA Criminal Code.

Finding 30 The doctrine of double effect is an ethical doctrine relied on by some doctors when providing palliative care at end of life. Although it has not yet been fully determined, it is likely enshrined as a defence under section 259 of the WA Criminal Code.

Finding 31 There is a fine balance in providing protection for both vulnerable patients and the health professionals who care for them at end of life. Section 259 of the WA Criminal Code gives appropriate weight to both parties so that all relevant matters can be assessed on a case‐ by‐case basis.

The Most Revd Dr Peter Carnley AC,

Unit 3, 5 Irwin Street,

EAST FREMANTLE, WA 6158

AUSTRALIA