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4 Dec 2019, by Amy Sarcevic
The medical industry is, by nature, beset with ethical controversies; few more profound than the issue of voluntary assisted dying (VAD).
Victoria is currently the only state in Australia to have such a law, but lately – with the heightened national focus on elder rights – there has been increased talk about enacting the legislation in other parts of the country.
So far, a VAD law has passed the lower house of WA Parliament and there have been parliamentary committees in South Australia and Queensland.
Having worked for many years as Victoria’s Public Advocate – a role in which he made life or death decisions for those who lacked the cognitive capacity to do so – Julian Gardner is an expert on the issue.
Gardner – who was on a Panel advising the Victorian Health Minister on its VAD legislation – believes there is a place for the law; but that great care should be taken to avoid it being misused as the “worst possible manifestation of elder abuse.”
“Providing it is well-drafted, I believe VAD legislation is a positive development for Australia,” he said ahead of the Medico Legal Congress.
“But to be effective, the laws will need to be conservative and deeply considerate of all possible adverse consequences.”
A conservative VAD legislation, he says, would need to have a strong emphasis on its voluntary component.
“Wherever this law is debated, we are looking at balancing some very fundamental notions, such as personal autonomy and the protection of the vulnerable.
“Controversial safeguards in Victoria include doctors staying totally silent on the topic, unless it is brought up by patients. It is not an alternative to palliative care; it is one more option for end of life care, but one that must be initiated by the patient,” he said.
“It must also be detailed enough to prevent a ‘slippery slope effect’ in which definitions of ‘eligibility’ are stretched too far – encompassing those who may be suffering but not near the end of their life; or those who may be near the end of life, but not suffering to an intolerable degree.”
Adversaries of the legislation say that the medical profession should always be about preserving the sanctity of life, whether for religious, moral, or professional reasons. But Gardner doesn’t agree.
“The outcome of VAD legislation isn’t about people dying. It’s about relieving suffering. We don’t measure its success by how many people have died; rather how many have alleviated or ended their anguish.
“It’s also about allowing people to die in a way consistent with their values and preferences. The reality is, some will choose to take their own lives. With a legal ability to do so, this could be done with minimal discomfort or pain. Without the law on their side, it is likely to be an inhumane process.”
Prior to the Victorian Act there were 52 attempts to pass VAD legislation in state and territory parliaments. All have failed except one short lived law in the Northern Territory, which was subsequently overturned. But with Victoria as a vanguard – and with increased calls to offer treatment options at the end of life – it’s looking likely other states may soon follow suit.
A report on the early operations in Victoria by the VAD Review Board is due for release in February 2020 and, shortly after, the Medico Legal Congress will return for its 29th year – providing a platform for discussion on VAD and other key legal debates affecting the medical industry.
Julian Gardner is among a stellar line up of speakers to share his expert perspective, with other insights heard from Polaris Lawyers, Sydney Local Health District and The Royal Children’s Hospital Melbourne.
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