Tick-a-box Bill manifestly fails to protect vulnerable Queenslanders from involuntary death
In a legal analysis of Queensland's Voluntary Assisted Dying Bill 2021 presented to the Australian Care Alliance, Paul Santamaria QC concluded that if enacted it would manifestly fail to protect vulnerable Queenslanders from being led into a death "not by a genuine exercise of personal autonomy, but rather because they feel pressured to agree – or, worse, are actually unaware of the nature of the process being undertaken 'for' them".
In the Bill as designed, the risk scenarios of patients who do not possess sufficient decision-making capacity or who are not acting voluntarily are manifest.
Nothing in this Bill ought encourage diligent parliamentarians to believe that prosecution for unlawful conduct which has caused the death of vulnerable Queenslanders is other than the stuff of dreams.
The protections much vaunted by the proponents of the Bill are only paper thin, wallpaper as it were, to assuage concerns of the parliamentary middle ground and to garner their support which is necessary to secure its passage into law. To the extent that the Bill confers protection on anyone, ironically, the Bill protects those who may honour the law in its breach and not its observance, such is the lack of any effective sanctions for breach.
The critical discretions under the Bill – for example, as to whether the patient has a terminal illness, is suffering intolerably on account of that illness, has requisite decision-making capacity, whether their decision is voluntary, and their consent is informed as to the nature and finality of the consequences of their action – all of these conditions are evaluated by [two] medical practitioners.
The Bill does not require them to know the patient or to have had any prior consultative relationship with the patient. The Bill does not require the doctors to be specialist or experienced in the illness or disease from which the person is suffering.
Given the presence of unacceptable elder abuse within the community, and the recognition that undue influence and coercion may be expected unless regulated, the acid is on the parliament to ensure that its protective function delivers safeguards that are watertight. Not as good as we can get – but watertight.
High-sounding phrases like “voluntary”, “no coercion”, “no undue influence” and the like promise much but deliver little. It is not realistic for two doctors, who may know nothing about the patient, the patient’s personality, family relationships or the possibility of past and present elder abuse by family members of the patient to arrive at a sufficiently informed decision on a sometimes vexing matter that, when before the courts, takes a significant period of time to determine safely.
It requires little imagination to know that there is little prospect that the doctor will become aware of circumstances that indicate a patient’s decision is involuntary.
The vice of the Bill in this regard is that any breach of statutory obligation will not be detected. Because death is “privatised” by the Bill, there is no realistic prospect that the death of a patient by unlawful conduct will ever be detected, let alone the subject of punitive sanction.
So far as the State has any involvement in the process, it is confined to checking that the paperwork has been correctly completed by the participants each of whom is working to the same end– that is, that all the boxes on the forms have been ticked, literally. Notice that the Bill reveals a stick only when a doctor is to file the paperwork. The State has no interest, let alone duty, in inquiring into the circumstances in which the paperwork has been prepared.
- The Australian Care Alliance submission on the Bill may be read here.
- The Dissenting Reports opposing the Bill by Dr Mark Robinson MP may be read here and that by Mr Stephen Andrew MP read here.
Debate on the Bill may take place in the Queensland Parliament in the sitting week beginning Tuesday 14 September.