Dr Frank Brennan on Victoria's euthanasia and suicide law
By having, as its destination, the planned, premature death of a person, [Victoria's euthanasia and physician assisted suicide] law ventures into an uncertain medical terrain, the vagaries of human nature and the extraordinarily complex nature of interpersonal relationships. No law can perfectly capture this reality. Of minds made up and then changed. Of the ebb and flow of the human spirit, despairing now, content a day later. Of a selfless impulse, in some, to ease the burden on one’s family. Of a lifetime habit, in others, of acquiescing to the suggestion, even unspoken, of a dominant relative.
Writing in the Internal Medicine Journal, which is the official journal of the Adult Medicine Division of The Royal Australasian College of Physicians, Dr Frank Brennan, who is both a palliative care physician and a lawyer, incisively analyses the fatal flaws in Victoria's lethal experiment with euthanasia and physician assisted suicide which began on 19 June 2019.
Dr Brennan identifies the inherent and unsolvable flaw at the heart of any law permitting euthanasia and assisted suicide: the necessary uncertainty in medical decision making on "issues include the prognostication of illness, decision-making capacity, screening for depression, the possibility of undue influence and the use of life-ending medications (with likely inter-individual variability in effect)".
As physicians, we know we cannot be certain about these issues. The laws strain to achieve certainty in language and effect. The law seeks, but medicine cannot provide, such certainty, and yet, with euthanasia/physician assisted suicide, both disciplines must be highly conscious of the irreversible consequences for not getting things right. There is, therefore, an inherent tension at the centre of any euthanasia/physician assisted suicide law. For law is entering the domain of not only medical uncertainty but also the mystery of the human psyche and interpersonal relationships. Uncertainty and mystery are not solid foundations for any legal statute. All euthanasia/physician assisted suicide laws face a series of identical challenges. Those challenges are significant and, arguably, insuperable. Challenges include the criteria of eligibility; prognostication; the assessment of capacity; ensuring the person is not acting under undue influence; the role of doctors, nurses and pharmacists in the process; the role, if any, of palliative medicine and psychiatry and the structure of the process leading up to the final act.
As a senior palliative care physician and past President of the Australian and New Zealand Society of Palliative Medicine, Dr Brennan is well placed to comment on the complete failure of the Victorian law to ensure that before resorting to the premature ending of a person's life by prescribing and/or administering a lethal substance the person is provided with expert, best practice palliative care.
Under the Act, neither a referral to, nor assessment by, palliative medicine is mandatory. The Act states that the doctor must inform ‘the person about…palliative care options available to the person and the likely outcomes of that care’. The law assumes that a reasonable body of knowledge about this discipline is universal in medicine. In reality, the doctor mandated to give this information may have little or no knowledge of palliative care or its outcomes. At this juncture, clinicians, patients and families may be adrift on a sea of myth. The patient, therefore, may make a decision to pursue the process without being fully informed.
Logically, this leads to a basic question: how can one make a decision as fatally serious as this one without being fully informed about the very discipline of medicine that is dedicated to the management of life-limiting illnesses? Simply stating the existence of the discipline does not explain it. It is ironic that a campaign that trumpeted autonomy and the power of choice may lead to a situation where a person is insufficiently informed in their decision-making. Information is one thing. Experience is another.
In the Act, one of the criteria of eligibility is the subjective intolerability of suffering. In reality, this is often the point where palliative care enters the scene now. It does so to bring a powerful and forensic approach to these issues and their management, being attentive to, and understanding of, the rhythms of both the disease and the human spirit. Instead, under the Act, the eligible person embarks on an altogether different journey. Process dominates; seeing a palliative care physician is optional. The patient decides on the point when things are intolerable, but that decision may never have been informed by the actual experience of receiving palliative care. The Act places into the patient’s hands the ability to commence a process that may lead them to a premature death where that patient has not engaged with medical experts who could deal with, assuage or comfort the reasons they sought this process in the first place.
Dr Brennan also highlights the superficial nature of the mandatory training, which can be completed online in 6-8 hours.
The Act states that the participating doctors must complete ‘approved assessment training’. The training course is online and is 6–8 h in duration. The content of that training is the procedural steps leading to [euthanasia/physician assisted suicide] and their responsibilities under the Act. In this course, there is no training in the nature and approach of palliative medicine, communication skills or the pharmacology of the lethal medications to be used. Theoretically, therefore, a doctor with little knowledge or expertise in end of-life care, little understanding of the breadth and depth of palliative medicine and no experience in the use of lethal medications could legitimately prescribe or, in certain circumstances, administer such medications.