Author: Hon. Robert Clark, former Attorney-General and MP, Victoria, Australia.
Introduction
The experience of Victoria, Australia, has been cited in the United Kingdom debate as a shining example of how an assisted suicide regime can work well. I demonstrate here that this is not so, and set out some implications of the Victorian experience.
The Victorian Voluntary Assisted Dying regime
The Victorian Voluntary Assisted Dying (“VAD”) regime was enacted in 2017 and commenced in 2019. Its procedures are broadly similar to those proposed for England and Wales in the Leadbeater Bill (“the Bill”). The patient is separately assessed by two doctors, the doctors submit an application for approval and, once approval is given, the lethal substance is dispensed for self-administration.
The Victorian oversight and accountability structure can best be described as one of “hear no evil, see no evil, speak no evil”. In other words, it appears designed for the regulator to find out nothing, investigate nothing and report nothing that could suggest that assisted dying has been anything other than an unblemished success.
Oversight of the regime is vested in a Voluntary Assisted Dying Review Board (“VADRB”) largely if not exclusively consisting of advocates of assisted suicide, and whose regulatory focus has been on reviewing the paperwork and ensuring the records are in order rather than on any audits, reviews or investigations of whether what actually occurs behind the paperwork complies with the legislation.
Approval permits for an assisted death are issued by public servants almost exclusively on the submitted paperwork alone and with no rights for other concerned parties (such as family members, social workers or the patient’s regular GP) to contest or have input into the giving of approval.
Strikingly, in the last two years no applications for permits have been refused. Rather than this being due to 100% practitioner understanding of and compliance with the legislation, the VADRB’s latest annual report makes clear this has been achieved by the expedient of applications not being formally determined until the initially submitted paperwork has been gotten into order by interaction between public servants and submitting doctors. The VADRB’s reports give the public no idea of how defective initially submitted paperwork has been, let alone how defective actual compliance has been.
The data published in Victoria are a bland range of the numbers of cases that have progressed through the various stages through to death, together with some demographic data and data on practitioner involvement numbers. There are also some data on palliative care receipt by those who seek VAD, but nothing to indicate whether such palliative care receipt meant the patient was simply on the books of a palliative care service, or whether they were actually receiving the level of care they needed.
Consequences of VAD
Even with its limited accountability and disclosure, some important consequences of Victoria’s VAD regime have become clear.
Firstly, the provision of VAD has been concentrated with a small number of practitioners. For example, in a Victorian population of around 6.8 million, the VADRB has reported that in 2023-24 the ten doctors with the highest VAD case load co-ordinated or consulted on 55% of all VAD cases.
Secondly, assisted suicide has been institutionalised throughout the Victorian hospital system, The Victorian government and health department have pushed all public hospitals that may have terminally ill patients to make VAD readily available and to brook no dissent from their practitioners, to the point where many practitioners working in public hospitals now feel unable to raise concerns about VAD, including about the ways VAD is being implemented within their hospital either generally or individual cases, lest they suffer adverse professional or career consequences.
Thirdly, there is no evidence of a reduction in general suicide in Victoria compared with other Australian states since the commencement of the VAD regime, and indeed there is some evidence of an increase in suicides amongst those aged 65 and over. This is in stark contrast to the repeated claims of advocates at the time that the legislation would help avoid non-medically assisted suicides by people with terminal illnesses.
Fourthly, Victoria has serious ongoing shortfalls in palliative care, especially high-level specialist palliative care, and particularly in rural and regional areas. At the time the VAD legislation was passed, palliative care service providers estimated that 10,000 patients a year were dying in avoidable pain due to the absence of palliative care, compared to the 150 or so patients a year who advocates estimated would want VAD.
Many of the examples of painful and distressing deaths raised in the Victorian Parliamentary debate were examples that palliative care experts pointed out could have been readily avoided with proper palliative care and if the treating doctor had the professional knowledge they should have had to refer their patient to a suitable palliative care practitioner.
Despite this, the Victorian government and health bureaucracy have given far greater priority to achieving the universal availability of assisted suicide than the universal availability of palliative care. For example, they have introduced a state-wide lethal substance delivery service but not a state-wide pain relief medication delivery service, even though many patients in need of pain relief live in remote parts of the state and suffer delays and difficulties in accessing adequate and timely pain relief through existing channels.
Needless to say, widespread shortfalls in the availability of palliative care, particularly high-level palliative care, place patients at risk of deciding to accept assisted suicide as a very poor second choice when they would not have done so if they could have obtained the palliative care they needed.
Fifthly, the legalisation of VAD has meant VAD is a topic now frequently raised with doctors by terminally ill patients and their families. While it may be considered a good thing that patients know they have that choice, the availability of VAD creates the risk that family and friends will unconsciously see VAD as a way of resolving their own distress and feelings of helplessness in the face of the patient’s distress, rather than pushing to get better care for the patient. It also creates scope for subtle steering of a patient’s views, such as by offspring with little interest in caring for their aging parent or who have their eyes focussed on their inheritance. Needless to say, elder abuse is as serious a problem in Victoria as it is elsewhere, and terminally ill patients dependent on their adult children for care are particularly vulnerable.
Implications
It is clear from the experience in Victoria and other jurisdictions is that introducing an assisted suicide regime into a health system inevitably and unavoidably will change medical practice in ways that result in many patients accepting assisted suicide because they haven’t been properly informed and reassured that fears they hold are in fact unfounded.
In other words, assisted suicide will often not be a matter of informed and considered patient choice, it will be due to assisted suicide creating systemic tendencies within the health system that for many patients will lead to decisions based on deficient advice from service providers.
Most pervasively, once Parliament has characterised the question of assisted suicide or not as simply an exercise of autonomous patient choice, many doctors will be increasingly likely to respond to patients asking about assisted suicide by providing a purely factual presentation of it as a medical option, rather than recognising that they also have a professional responsibility to respond to the patient’s vulnerability and need for reassurance and emotional support in order to lay unfounded fears to rest.
As well, if the UK is like Victoria, many doctors advising patients will not have good knowledge of what palliative care options are available or of what specialist palliative care can achieve and therefore will be at risk of misadvising their patients even if they are trying to do their best. Based on the doctor’s poor advice, many of these patients may decide to accept assisted suicide, whereas in the absence of an assisted suicide regime they would have found out that palliative care could do more than their doctor thought, that their fears about dying in pain were unfounded and that their existential fears were able to be resolved.
Further, as in Victoria, the provision of assisted suicide is likely to be concentrated with those doctors whose personal views are strongly supportive of an assisted suicide regime, and strongly inclined to think it is the best choice for many patients. In consequence, there is a high risk of their views resulting in them not properly advising their patients about what palliative care could do or about what the patient’s likely experiences through to end of life would be, and of not being alert to risks of depression, coercion or lack of capacity.
Conclusion
As well as the attitude changes in medical practice, legalising assisted suicide is likely to shape the attitudes of family and friends away from fighting to get the best possible palliative care and other supports for their loved one and towards thinking that if Parliament says assisted suicide is OK, it might be the best outcome for the distress that the patient’s suffering is causing for everyone involved, thus leading them to validate the patient’s thinking along those lines.
No attempted safeguards, and no independent oversight, however independent and however effective, is going to be able to protect against these effects of the attitude changes that legalising assisted suicide will produce, because the misadvised patient, often validated by family and friends, will believe they are taking the best course available to them, and the misadvising doctors will be oblivious to the fact that they could and should have given their patient better advice and support.
In all these circumstances, sound public policy principles dictate that the policy maker – in this case, Parliament – needs to ensure that the health system’s regulatory framework does not allow these widespread adverse patient outcomes to occur. This can only be done by not introducing any form of assisted suicide regime into their country’s health system.