Victorian mandatory training sets a low bar

The much vaunted mandatory training for doctors before they are licensed by the State of Victoria to prescribe a deadly poison to people for the purpose of suicide or administer a lethal injection to them is supposed, among other things, to ensure these doctors are competent to assess decision making capacity and voluntariness in those requesting assisted suicide or euthanasia.

However, a comparison of the total of 10 minutes training provided on these topics in the Victorian mandatory training with the thoughtful proposals presented in an article published in the Internal Medicine Journal in January 2019 entitled "Biggest decision of them all – death and assisted dying: capacity assessments and undue influence screening” leads to the conclusion that the bar has been set very low indeed in Victoria and that there will be wrongful deaths in Victoria due to this failure.

The section in the prescribed training that covers assessing decision making capacity totals less than 5 minutes – a video that runs for 2 minutes 10 seconds and then a series of slides that takes about 2 minutes 20 seconds to read through.

The amount of this brief material that addresses “red flags” totals about 41 seconds.

Here is the sum total of warnings from the video:

• Red flags may include a failure to understand their condition or not being able to identify their other treatment options.
• If a patient keeps reversing their decision or cannot express their decision in a consistent way, this may indicate a lack of decision-making capacity.
• it is important that a person is communicating their own reasons and someone else is not filling in the gaps.

These warnings in the video are repeated on the slides as “red flags”:

• Patients who do not accept their condition (for example those who lack insight because of delusions or denial)
• The patient can only communicate through gestures and appears to respond to questions inconsistently.
• The patient’s decision making appears unusually brief or not grounded in the patient’s personal beliefs or values.
• The patient might also frequently reverse their decision due to mental illness or neurological conditions.

The section on assessing voluntariness, including assessing the absence of coercion, totals just over 5 minutes, including a 2 minute 20 second video and slides which take a further 2 minutes 50 seconds to read.

This prescribed training was prepared under contract by Ben White and colleagues from the Australian Centre for Health Law Research, Queensland University of Technology.

Interestingly Ben White is also the co-author of an article entitled “Biggest decision of them all – death and assisted dying: capacity assessments and undue influence screening”, published in the Internal Medicine Journal in January 2019.

Even more interestingly, in that article Ben White dissents from the positions expressed by his co-authors Carmelle Peisah and Linda Sheehan as set out in the detailed “Guideline for clinicians assessing capacity and screening for undue influence for voluntary assisted dying” proposed by the paper.

In part at least his dissent is stated to be due to “different authorial views” on whether or not in assessing decision making capacity a person requesting assisted suicide or euthanasia should be asked if they he or she has “given any thought to the potential effect this choice may have on your family and friends”. This seems like a reasonable question for a clinician to explore as a lack of any such consideration could well point to a deficiency in the decision making process.

Indeed many of the warnings and cautions expressed in this article fail to appear in the mandatory training for Victorian doctors.

For example, some of the issues identified in this paper and not addressed adequately in the mandatory training include:

• Overseas experience has been that undiagnosed depression remains an issue amongst those who request and are offered assisted suicide in Oregon.

There is no discussion of undiagnosed depression in the training

• Regimes permitting assisted suicide or euthanasia must ensure diagnosis of well-defined and treatable conditions is not missed and that clinicians can assess the effect of such mental illness on more complex components of decision making.

There is no training on this point

• Caution is also advised in regards to requests for assisted suicide or euthanasia by persons with Motor Neuron Disease, which is frequently associated with cognitive impairment (especially executive function which affects decision making and inhibition). These are the very deficits which may affect capacity for assisted suicide or euthanasia and yet may not be obvious to, or detected by, the clinician, unless the person’s cognition and capacity are specifically assessed.

There is no specific reference to this issue. The Act does require a referral to a specialist for persons with neurodegenerative conditions but only where they are expected to die within 6 to 12 months but not if they are expected to die within 6 months. This referral is concerned solely with the prognosis and the specialist has no role in assessing decision making capacity which is left to the two assessing doctors, with an option to refer for further advice only if they consider themselves unable to determine it.

• While conceptually endorsing supported decision making, we consider its application in the context of assisted suicide or euthanasia gives rise to significant risks and should be approached cautiously. Supported decision making in clinical contexts is in its infancy, with few guidelines available, its many risks elucidated and few doctors familiar with the process. While some aspects of supported decision-making may not be controversial (e.g. giving a person time to consider the decision or allowing them to use technology to communicate a decision), others aspects are. To illustrate, allowing one person to communicate or assist with communicating another’s decision raises concerns about potential for undue influence, especially given the gravity of the assisted suicide or euthanasia decision. We anticipate that, given the gravity of a decision about assisted suicide or euthanasia clinicians would proceed very cautiously, and consider the role and risks of supported decision making be included in the training provided to health professionals.

The training endorses supported decision making using speech pathologists

• The Voluntary Assisted Dying Act 2017 (Victoria) recognises the need for “approved assessment training” and there is provision for the Government to approve training including in relation to assessing a person’s eligibility for assisted suicide and euthanasia and “identifying and assessing risk factors for abuse or coercion” (section 114). Both doctors involved in assessments under the Act are required to undertake this training before beginning that role. Further, at least one of the doctors must also have relevant expertise and experience in the disease, illness or medical condition expected to cause the person’s death, e.g. the specific neurodegenerative disease or cancer. However, that expertise or experience in the specific illness does not equate with training and expertise in the assessment of capacity and undue influence. Further, we note evidence of knowledge gaps in clinicians’ understanding of capacity assessments and “identifying and assessing risk factors for abuse or coercion”

The mandatory training module on assessing decision making capacity and coercion far from acknowledging such “knowledge gaps” starts from the following assumptions: “Assessing decision-making capacity is a critical part of a medical practitioner's work, and something we do every day, often without thinking about it” and “We, as doctors, should already be alert to coercion in a range of healthcare decision scenarios”

• Ensuring the person has access to palliative care and can understand the benefits is crucial.

Nothing in the Act requires that a person has access to palliative care or that either Assessing doctor know anything about palliative care. The only reference in the training module is a one line reference to a requirement in the Act to inform the person about “palliative care options and their likely outcomes”.

• Overseas experience shows adverse events can include regained consciousness, and for oral methods, difficulty ingesting or regurgitation.

Nothing in the training actually covers the drugs to be used, the risks of adverse consequences or what a health professional, a lay person or the person themselves should do if any of these were to occur.

• Have you given any thought to the potential effect this choice may have on your family and friends? Are there any cultural considerations that are important to you that you think may be relevant to consider? One risk for the clinician to be aware of is the vulnerability of older people to the perception of being a burden to family or society, as demonstrated in studies of attempted suicide in older people. Families also suffer vicariously from watching their loved one suffer and equally, and understandably, want to see an end to this suffering. Clinicians can screen for these and other reasons for potential undue influence.

In the mandatory training it is suggested that if a patient indicates that “becoming a burden on family, friends and caregivers” is their reason for seeking assisted dying this could be the “patient’s expression of suffering experienced from the loss of autonomy” and therefore avails reason to request assisted suicide or euthanasia)

This gap between the proposed Guideline for clinicians assessing capacity and screening for undue influence for voluntary assisted dying by Ben White’s co-authors and the mandatory training authored by Ben White and his QUT colleagues is cause for grave concern that doctors are being licensed by the State of Victoria to prescribe suicide poisons and lethally inject Victorians with a level of training in assessing decision making capacity and identifying undue influence and coercion far short of best practice.

Of further concern is this admission by the authors of the proposed Guideline:

The decision must be free from undue influence, in so far as this can be achieved – such screening, especially for detecting undue influence, will never be infallible. Special care must be taken in relation to those dependent on others for care. Undue influence must be assessed by having regard to both the person’s strength of will and level of pressure being exerted by others.

It is clear from this that some of those who will die by suicide or euthanasia under Victoria’s law will do so as result of a decision made subject to unidentified undue influence or coercion either to request access or, perhaps weeks or months later, to take the poison.

Note that under the Act there is no decision making capacity assessment required at the time the poison is actually ingested and no witness required to ensure that is taken freely by the person themselves.

For more on wrongful deaths from assisted suicide and euthanasia read here.