STATE MEMBER FOR MALVERN
SHADOW TREASURER

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VOLUNTARY ASSISTED DYING BILL 2017

Mr M. O'BRIEN — Death is an inevitable part of life. As Shakespeare observed in King John, 'We cannot hold mortality's strong hand'. But for all that, death is the part of life that many fear the most. While its ultimate conclusion is inevitable, death often raises many uncertainties that contribute to the fear: the uncertainty of its timing, the uncertainty of its manner and the uncertainty of what lies beyond.

As my friend and former colleague Niki Savva wrote in today's Australian:

We all want a peaceful, painless death. If we could order it up, we would go to bed one night at a ripe old age and not wake up. A few lucky ones do.

For those who are not so lucky, palliative care is essential. The right palliative care delivered at the right time can deliver a good death, even in the most trying of circumstances. I pay tribute to those who work in palliative care, to those who provide comfort — physical, psychological and emotional — to terminally ill people who are facing what is doubtless an uncertain and frightening reality.

I am proud to be part of the Liberal-Nationals coalition that has  committed to the largest single boost to palliative care in our state's history — an unprecedented $140 million boost over four years — should we form government at the next election. This is one occasion on which I will not complain if the Labor Party steals our policies. Palliative care is that important. But, despite the lack of available palliative care in Victoria and the failure to address that pressing need, some believe we should move well beyond palliative care to euthanasia, and this brings us to the bill before the house.

Should an adult  living in Victoria diagnosed with a terminal incurable illness with a prognosis of 12 months or less be permitted to end their own life through a state-sanctioned process? That is the question before us. Members of Parliament are now called upon to consider what is literally a matter of life or death.

One of the reasons I am a Liberal and subscribe to the values of that great party is that
I believe that the individual should have as great a level of control as possible over his or her own life. I believe that the individual is far better placed than is government to know what is best for him or her. Moreover, I prefer individual autonomy to government diktat because, whether it is the government or the individual who makes the decision, it is the individual who bears the consequence of the decision, be it good or ill.

So I come to this debate with some considerable sympathy for the proposition put forward by the drafters of this bill — that in their final days, weeks or months a terminally ill person should have the lawful ability to determine for themselves the precise time and manner of  leaving this life and to bring it to pass.

Since this bill was proposed I have actively sought the views of my Malvern constituents. I am very grateful to the hundreds of people who have taken the time to write to me, to telephone or to meet with me. I have been honoured to have had so many constituents share with me some of the most extraordinarily difficult personal experiences. People have shared with me stories of love, of loss, of illness, of compassion, of pain, of care and, ultimately, of dying. People who I have never met and do not know opened up their lives to me. People who I do know shared with me aspects of their life that I never knew about.

If some of the stories were difficult for me to read — and they were — I can only imagine how much more difficult they were to write, let alone to live. The most harrowing stories came from those passionately opposed to this bill as well as those passionately in favour of it. It is a privilege to have had the opportunity to share the lives of so many people who I am proud to represent in this chamber.

One of the most difficult things about this debate is that I know full well that, no matter
which way I vote, it is inevitable that I will disappoint a great many good, decent and honourable people in my community. For the record, while over 75 per cent of those who contacted my office have expressed opposition to this bill, in coming to
my decision I have not placed excessive weight on that numerical balance.

In considering the bill I examined the structure of the scheme but also the detail. One of the downsides of having been a barrister before entering Parliament is that one always tends to search for loopholes or other opportunities for mischief in any legal document. Having been a part of the justice system in my previous profession and having observed
it fall into error from time to time is one reason why I strongly oppose the death penalty. Systems sometimes fail. Mistakes do happen. However, the consequences are far graver when the mistake cannot be reversed. So in examining the Voluntary Assisted Dying Bill 2017 I have looked carefully to see how the safeguards against mistakes and abuse would operate, because the consequences of any failure, as with the death penalty, cannot be reversed.

To those who suggest we should not worry too much about the technicalities
of the bill, to those who say society should simply put our faith in medical professionals to always act appropriately in matters such as this, I have three words: Dr Philip
Nitschke. I quote from the Herald Sun of 6 July 2014:

In 2002, Nitschke helped arrange Nancy Crick's death by Nembutal. Only after an autopsy did Crick's son discover she had no trace left of her cancer — which he said his mother didn't know.  'It is irrelevant', Nitschke retorted. 'The quality of her life was such that she thought death was preferable'.

While ever there are euthanasia zealots such as Philip Nitschke in the medical profession who are prepared to bend or break laws to encourage mentally distressed but otherwise healthy people to commit suicide, the risk of abuse is very real and highly dangerous.

Having examined the detail of the bill and the 68 safeguards put forward in it, I have concluded that the safeguards proposed at this time are simply not up to the vital task for which they have been designed. Due to the limited time available I will mention briefly some of my particular concerns regarding the adequacy of the safeguards.

The first relates to consent. I am very troubled by the fact that somebody who is clinically depressed could be regarded as having the mental capacity to consent to voluntary assisted dying. Under law, a person's state of mind is the critical issue for determining testamentary capacity. Does a person have the necessary mental state in order to legally make a will is a critical and often-litigated question. To my mind, it would be extraordinary if the law imposed a higher mental test for a person to determine what happens to their assets than it does to end their life. However, this bill does not provide adequate safeguards in relation to people who may be clinically
depressed and therefore, in my view, not in a fit mental state to make such an
irreversible decision.

Will depressed Victorians more in need of Prozac be prescribed Nembutal instead? That remains a risk under this bill, and I believe it needs to be addressed. In my view it should not be permitted. I do encourage my parliamentary colleagues to look at amendments that could ensure that any consent given by an individual under the proposed scheme is genuine. 

Another concern relates to timing. The bill suggests a minimum of 10 days between making an initial request for assisted dying and that request being acted upon. Ten days is less time than it can take to write a cheque, post it, receive it, bank it and have it honoured. That in itself appears too short a time for an irrevocable and life-ending decision. People can and do change their minds on all types of important decisions. However, despite that 10-day minimum, in fact where a medical practitioner believes that the person's prognosis means they will die before that period, the time between
first request and end of life can be as little as two days. To me this appears inadequate as well as potentially a risk that is open to abuse.

Other members have raised concerns about the possibility of coercion, undue influence and elder abuse. I acknowledge that the bill does contain offences in relation to those matters; however, one of the issues I find concerning is that parts of the consent that is provided may not even necessarily be alone, one on one. No-one will be quite sure what might have happened before or immediately before consent is nominally provided. I do think that there needs to be much stronger safeguards to prevent coercion, to prevent
undue influence and to prevent elder abuse than simply prescribing it as an offence.

Another concern which is related but separate is the concern of people, particularly elderly people, feeling guilty, feeling they are being a burden and feeling they would be doing their children, their grandchildren and society a favour by ending their life prematurely. When people are at their lowest ebb and facing a terminal illness and going through grief, fear and pain, it is the time when people should ideally be wrapped up in the loving arms of friends and family, but I think we have all seen and heard examples of when that is far from the case. I do worry that there will be people who will feel they are relieving their family and society of a burden through accessing voluntary assisted dying. Again, I fear that is a compromised form of consent. I would like to see mechanisms built into this bill to try and determine genuine consent, because I do not want to see a situation where people feel they are relieving others of a burden by relieving themselves of life.

I note the opposition — not unanimous opposition — of the Australian Medical Association and a number of palliative care specialists. I do seek to take a constructive position in this debate, and where I believe there are flaws in the bill I will support
amendments to remedy them. Indeed the amendments I have circulated myself relate to providing a requirement that where a final request is made by a person and where an administration request is made by a person those requests should be made via an audiovisual recording. Again, I think that that would give a far greater sense of security and certainty that the request is being made genuinely, honestly and without coercion. I would encourage all members of Parliament, whatever they ultimately think about the bill in principle, to support my amendment on the basis that it will provide a very important safeguard against abuse.

This is one of the most difficult bills that I have had to deal with in my nearly 11 years here. As I say, many of my political values about individual autonomy would suggest that I should be voting for the bill, but when I have looked at the detail of the bill and when I have looked at the safeguards, I am too concerned that the safeguards are just
not up to the job. On that basis I would support the reasoned amendment circulated by the Deputy Premier; however, for the reasons I have outlined, as this bill stands today,
unamended, I cannot support it.

 

Contact Michael
Michael O'Brien MP

313 Waverley Road
MALVERN EAST VIC 3145

Phone: (03) 9576 1850
Fax: (03) 9576 1849


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