Assisted dying: professor advises against snuffing reform today from fear of what legislators might do in the future

Otago law professor Andrew Geddis highlighted important realities about law-making in a response to Maxim Institute chief executive Alex Penk’s  concerns about the End of Life Choice Bill currently awaiting a second reading in Parliament. T

Some of Penk’s concerns are misplaced, Geddis said.  Others are missing some important context.

Penk’s article, headed MPs should examine facts on euthanasia, rather than crystal balls, notes that David Seymour’s End of Life Choice Bill – if it passes the parliamentary process – is likely to require a referendum at the 2020 general election.

In other words, the public will get to decide on the legalising of euthanasia and assisted suicide.  This should take care of the doubts Penk raises about the extent of public support for voluntary euthanasia.

But another of Penk’s problems is that the public haven’t been given good information.

He  is bothered that champions of the bill tell us about the state of Victoria passing an assisted dying law in 2017, but not that similar laws were rejected by South Australia in 2016, Tasmania in 2017, New South Wales in 2017, and the Northern Territories in 2018.

The fact some state legislatures rejected the bills should not be as important as the arguments for and against which they considered, or course.

It is likely they were the same arguments in all cases.  The difference is how they were weighed by the politicians.

But Geddis has focused on  Penk’s worries about the parliamentary process being used to pass this proposed law and the uncertainties this has raised.

 

Its sponsor, David Seymour, will propose changes at a future stage of the debate to limit the bill’s scope (and make it more likely to win Parliamentary support). It’s this that makes the bill’s final shape somewhat uncertain.

However, what  he [Penk} doesn’t note is that this process is required because those MPs on the justice select committee opposed to the bill blocked Seymour’s changes from being incorporated into it at that earlier stage. No doubt they worried that other MPs would be more likely to support this limited bill than the original version.

It’s then a little rich for the bill’s opponents to complain that it is being enacted via a flawed process. And in any case, it seems almost certain that any final bill will require a referendum vote to become law, giving the ultimate say on its merits to the voters themselves.

Geddis then addresses Penk’s concern that any legislation may be misapplied, leading to “deaths that would fall outside the bill’s own criteria”.

This could occur, he worries, because of the difficulties involved in determining whether someone at the end of life really is competent to consent to a  doctor’s actions.

Of course, the End of Life Choice Bill requires that anyone requesting aid in dying be fully and directly informed of that decision’s consequences. 

Their doctor also must use best efforts to ensure the request is free from pressure from any other person.

Two doctors would then independently assess the competency of that person to request aid in dying. If either doctor disagrees about this, a third specialist would be brought in to examine the case.

Geddis compares this process to a lucid person with late-stage cancer who declares a desire to end medical treatment and “let nature take its course“.

Although that decision will result in the patient’s death, their doctor simply has to accept it as a competently made choice without any prescribed process being followed.

As such, we see shifting concerns about “competence”, depending on what people are choosing to do. My suspicion is that these concerns don’t really reflect an underlying judgment about whether people at their end of life are able to properly consent to treatment; after all, they already do so on multiple occasions every day.

Rather, it comes from a fear that people will choose something those opposed to aid in dying just don’t like.

Next, Penk pointed to the slippery slope which opponents of aid in dying “reliably claim” will follow reform legislation. He referenced countries that have extended access to people under 18.

The End of Life Choice Bill would not allow this, of course.

But Geddis observes:

It’s an interesting argument that we can’t possibly change the law today because we cannot trust some future majority of MPs, elected by a future majority of voters, not to change it further.

Laws in New Zealand do not alter by magic; they require Parliament to decide to act.

So, if and when there was some future proposal to widen the range of people who may access aid in dying, that would involve a new bill and full public debate on its merits. If we then collectively think the further change is a good idea, we can do it. If not, then we don’t have to.

So, rather than worry about what our future selves may decide to do at some point years from now, we should ask ourselves whether the proposal in front of us today is a good one.

As Penk acknowledged, allowing aid in dying will enable people approaching the inevitable end of their lives to ask themselves: is my life still worth living?

Geddis comments:

For some people, with their death approaching and experiencing unbearable suffering, the quite understandable answer will be no.

Are we as a society then going to be so cruel as to tell them, in effect, “tough luck”?

Penk concluded that legalising euthanasia and assisted suicide is one of the most consequential issues that Parliament will consider this year.

We won’t argue with that – nor would we dispute that more attention to the facts will do us all a favour.

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