End of Life Choices (Voluntary Assisted Dying) Bill 2020

Mr President, speaking on the End-of-Life Choices (Voluntary Assisted Dying) Bill, I begin by thanking the member for Mersey deeply for the time, the effort, the intellectual commitment, the values-based approach, the respectful engagement and the significant personal investment on every level he has brought to this effort, to have us today considering this bill.

I acknowledge the support he has had from many people, and he has spoken about that and named some, but the network is vast and there are many people with an investment in the debate we are having here today.

I acknowledge those who have previously brought this matter to public attention and generated discussion, examination, refinement and our understanding of this issue and those who have brought previous bills that also at their time, progressed that public conversation.  In particular, the Honourable Lara Giddings, previous premier of the state, now Senator Nick McKim and Cassy O’Connor, the Leader of the Tasmanian Greens.

My third acknowledgement I will make before speaking in detail is to those thousands of Tasmanians who have engaged with us on this issue, through petitions, emails, through phone calls, letters – typed and handwritten; I read and appreciate all – and through the personal discussions that many of us have had with many people.

This is not an easy topic.  For many it is highly personal.  In many cases it directly relates to deeply personal experiences, often distressing and in other cases, it connects to deeply held beliefs and values.

That we have had the opportunity to hear from Tasmanians and share in those personal, important experiences and views is a real privilege.  The member for Mersey tabled a document in this place which includes personal stories from many Tasmanians and they are only the tip of the iceberg.

In my contribution here today, I am not going to bring more of those stories forward or introduce more into the debate, but I recognise the ones we have received.  Though it has been difficult and distressing, as acknowledged by other members, I have read all that have come through my inbox, my letterbox and through my phone.

There is always a risk to opening up community conversations on such fundamental life and death issues, a risk that in doing so, we will cause pain, additional suffering and moral distress.  It is a risk that we will cause division and antagonism, and I recognise that risk and we have probably all felt it as we have progressed through this experience.

The fact is that different views do exist on these matters.  They already exist and can already be a matter of pain, suffering or even of distress.  Engaging in the conversation provides a purposeful opportunity by which we can ultimately move to better resolve these matters.

What we do next, after the conversation, after this legislative decision has been made, will be most important in ultimately delivering a less divided and better supported Tasmanian community, regardless of the outcome.

Often in matters of gravity that relate to life and death, change does not come about as a result of single moments or single decisions.  It comes about from sustained effort over time.  We have had a long pathway towards the decision today, and should this bill pass, we will have a substantial period of transition and adjustment as it becomes part of our societal landscape.  Should it not pass, we will then continue on a pathway and may encounter the conversation and another decision at another time.

The overwhelming majority of people in our community agree with the fundamental idea that people should have an opportunity to bring their life to an end with dignity in the context of an advanced illness and in the face of significant suffering.  Decisions and actions relating to end-of-life care are being managed in a range of settings every day in hospitals, hospices, aged care facilities and private homes.  For time immemorial we have been faced with these decisions.  In particular, doctors and other health and care professionals are faced with situations and decisions that relate to this, in some cases with uncertainty and limited guidance and protection.  But they face this regularly.

Many people regard as fundamental their right for bodily autonomy; their right to make choices about the nature and circumstances of their death.  They view the lack of options currently available to give effect to those personal rights to be a breach of our obligations as a society.  I see it that way too.  Canadian provinces established their VAD laws after a decision of the Supreme Court of Canada found that to deny access to voluntary assisted dying was a breach of human rights and was contrary to the Canadian Charter of Human rights.

It is interesting to note that Victoria was the first state of Australia to enact a VAD act in 2017.  It too was the first jurisdiction in Australia to have a Charter of Human Rights and Responsibilities Act.  In the context of this VAD debate, I would like to see a human rights act for Tasmania.  Such an act would provide a basis on which we can discuss matters such as voluntary assisted dying.  It would be a standard against which we could better measure protections.  It would also help us make determinations when balancing competing rights against each other and commit us to the aligned responsibilities that come with a framework of human rights.

In the absence of a human rights act in this state, I still contemplate this issue as one of rights and a decision about how best to give full effect to the rights of the people of Tasmania.  In the communications we have received from Tasmanians in support of VAD, some of the common sentiments include the view that people should be able to make their own choices in relation to their death.  No-one should have the right to tell a person they must suffer unnecessarily in the process of death.

Questions that commonly come through include:  Why, when people are able to decide to stop treatment, are they not able to ask for release rather than suffer a slow and lingering process of death once the treatment has been stopped?  Why, when a person is imminently going to die, can it not be on their own terms?  We talk so readily of how we can best achieve quality of life.  Equally we need to acknowledge a conversation about quality of death.  It is complex to do so during such times that those two things may need to be contemplated concurrently, at the end of life and during end-of-life care.

I acknowledge that some people will approach this issue very differently to me.  Perhaps the starkest difference will be found in those who have a moral objection or a faith-based objection to voluntary assisted dying.  I do not hold such an objection or such a principle.  I note that consistent surveys find that the majority of people of faith support a voluntary assisted dying option being provided as part of end-of-life care.  However, there is a distinct minority within the community who find they cannot support it on the basis of their faith or their moral values.  This is also the expressed position of a number of religious institutions.

I respect the right of people to hold this view and for it to be expressed.  I respect the right of people to make choices in their own life according to their values and morals; however, I find it problematic when some seek to impose their moral or faith position on others, or to constrain the options available to others in alignment with their moral, personal or faith position.

While people arguing from this moral or faith basis often pivot to points about inadequate levels of protection for the vulnerable or the potential for abuse in relation to the VAD, my observation is that for many in this category, there will never be any circumstance that makes voluntary assisted dying acceptable.  There would never be a level of protection offered in any piece of legislation drafted on this matter that could be supported in their view.  That is a valid view to hold.  My preference would be for people who hold such a view to prosecute arguments on the basis of their fundamental belief and values and not engage in what amounts to a smokescreen of objections on other matters of detail, the resolution of which would still not satisfy their fundamental objections.  I would also prefer to see a commitment from all not to use misinformation, unsubstantiated evidence and misleading claims in the prosecution of these arguments.  The vast majority of Tasmanians do not hold the view that VAD is morally wrong. 

The vast majority of Tasmanians want us to find a way to provide an option for voluntary assisted dying in the end-of-life care.  I believe the question is no longer, ‘Should we do this?’ Rather, it is, ‘How shall we go about this as best we can?’  What this means is making decisions on the level of risk we are prepared to accept because we cannot eliminate it entirely.  We can, however, make determinations on how to balance and address risks based on evidence and we can resist the temptation to be drawn into consideration of fearful or unsupported assertions. 

I believe we can and will find an acceptable and responsible balance between rights against protections.  Delivering that in legislation is possible.  It will not be a perfect piece of legislation if it passes this Chamber.  There is no such thing as a perfect piece of legislation, nor is legislation fixed and permanent.  If the bill is passed now, over time, as with all other legislation, there will become occasion for it to be reviewed, amended, added to or even repealed. 

A concern that I hold is that in the interests of seeing this bill passed on behalf of the Tasmanian community, we will likely deliver a piece of legislation that does not represent best practice and best thinking on this issue, that it will be made restrictive to an unnecessary degree.  I say ‘unnecessary’ not because there is a need for anything less than the highest level of protection and care in relation to VAD, but because I contend that a requisite high level can be provided under less restrictive and burdensome legalities than exist in some other jurisdictions and, to some extent, exist in this bill. 

It is my concern that we may mimic these more restrictive and burdensome legalities that are not demonstrated to be necessary to provide a higher level of care and protection but have rather been found to present barriers to access for some who may be eligible and have a desire and need to access the VAD option.  By holding these concerns, I also accept that politically it may be that this approach is required to secure parliamentary support. 

It also may be that such an approach in its perception of a more robust set of protections could provide additional reassurance to the public and to medical practitioners and, indeed, to parliamentarians.  I would like to speak about how I see the relationship between voluntary assisted dying and palliative care because it comes up as a key part of any discussion on this matter.  In essence I see no incompatibility in having an excellent, well-funded and supported palliative care system and an option for voluntary assisted dying as part of end-of-life care. 

I see no reason that we have to pitch them one against the other.  That one obviates the need for the other or that they are somehow mutually exclusive.  I see a partnership between the two.  Interestingly, I heard the member for Murchison in her contribution refer to some advocates for VAD saying that it is the only way to achieve a dignified death.  I have to say I have never heard any VAD proponents or advocates say such a thing. 

I have heard opponents to VAD make claims that palliative care should be the only permissible option and is an appropriate option in all cases.  I have heard an absolute claim made from that side of the debate but I have never heard an absolute claim of such a kind made from VAD proponents.  Perhaps we have heard from different stakeholders. 

Credible expert advice indicates that even with a high standard of palliative care there will always be a small percentage of people whose suffering and pain and distress will not be effectively managed.  The reality we see from other jurisdictions is that many of those who access VAD will likely also be palliative care patients and have a successful and positive experience of the palliative care system through to the point that they have chosen to access VAD. 

During consultation on this bill, I have heard from some the palliative care system and options are not currently well understood in the general community and that there can be a reluctance in the community to access palliative care.  I have also heard there are longstanding issues of palliative care not being adequately funded, supported or accessible to all Tasmanians.  I believe these observations that have been made to me. However, I regard any current deficiencies in community understanding of palliative care or the overall funding of or access to palliative care to be matters quite separate to this VAD legislation.  It is for the government of the day to make decisions about the level of funding and support provided for palliative care.  That is true now and it will remain true in the future should an option for voluntary assisted dying and end-of-life care be legislated for in Tasmania.

Insisting that a perfect palliative care system is achieved before making a voluntary assisted dying option available is an insurmountable and unnecessary barrier, especially as we know that even a perfect palliative care system will not be sufficient to meet everyone’s needs.  Further, it saddens me some advocates who use this argument for better funding of palliative care services to oppose VAD do not seem to be vigorous and visible advocates for better funding and support of palliative care outside of the context of the VAD debate.  If the current deficiencies of palliative care are so apparent, which I believe they are, and the rectification of these deficiencies is so essential in removing the need for a VAD option, I wonder why I have not observed these same individuals or groups at the forefront of an active public campaign for better funding and support for palliative care in Tasmania.

Over the time we have periodically had public or parliamentary discussions about VAD some of these voices emerge to point to a need in palliative care and then once the VAD discussion quietens, so too does their call for better palliative care.  It almost looks as though some of those calls are a debate device utilised in an attempt to prevent a VAD option becoming available rather than a genuine commitment to see better palliative care options available to Tasmanians.

That is a real shame because palliative care needs all the allies and support that can be mobilised for it, and I hope all those who have come to us with concerns and assertions about the need to better support and perfect palliative care in this state in the context of this debate will continue to prosecute those arguments and be advocates after we have concluded this debate, regardless of the outcome.

Should this bill come to pass, there will need to be comprehensive discussions about how the implementation of VAD can best intersect with and work alongside the palliative care system in Tasmania.  I hope to see a concerted focus on education, information and the primary importance of developing and continually improving how we support and communicate about end of life care issues.

Another key matter understandably raised in discussion of voluntary assisted dying is a concern for the vulnerable elderly members of our community.  I began my working life in community aged care.  I went on to manage a volunteer befriending program for isolated older Tasmanians and when I eventually began working in social policy research and advocacy, I maintained a strong interest in and affinity for social policies related to older people including spending time on the Policy Council for Council on the Ageing Tasmania.

I have been involved in advocacy regarding elder abuse for many years.  I was one of many who celebrated when the state Government finally funded the development of an elder abuse strategy, after years of advocacy from the community sector and older Tasmanians.  I was on the board of Advocacy Tasmania when it was funded under that strategy to provide the Elder Abuse Helpline.

On the issue of providing an option for voluntary assisted dying, I see two sides to be considered when it comes to older Tasmanians.  Their right to be protected if vulnerable and their right to self-determination and empowerment to make important choices affecting their own lives and deaths.  A common negative experience for older people in our community is a loss of empowerment and choice as ageing occurs, particularly, as frailty and vulnerability increase older people can experience a progressive stripping away of self-determination or control of choice.  This loss of self-determination has an impact.  I see that the loss of these things can cause grief, distress, anger and can lead to a loss of sense of meaning and contribution and purpose, and a disengagement from life.

A central tenet of our aged care system recognises this, and holds that we should be helping people maintain their independence for as long as possible, and we should be empowering people with choice on matters to do with their lives for as long as possible.

Knowing you can exercise choice is empowering.  It helps to maintain meaning, to build hope and to promote engagement.  Empowerment reduces vulnerability and increases quality of life.

Mr President, we continue to be challenged as a community to better address the empowerment and the care of our elders.  The COVID-19 pandemic has certainly exposed our failings on many fronts when it comes to elder care.  In the context of this debate, we are prompted to consider what impact the introduction of a VAD option in end-of-life care will have on the rights, wellbeing, empowerment and care of older Tasmanians.

It is my personal belief that the simple existence of the voluntary assisted dying option as part of end-of-life care, knowing that the choice is available if necessary, will be fundamentally empowering to older Tasmanians.  It will provide reassurance and reduce distress.  That is a personal view, Mr President, but it is confirmed anecdotally, on the one hand, in the large number of direct communications I have received from older Tasmanians stating that it is the case.

It is also confirmed by the fact that the peak body representing older Tasmanians – COTA Tasmania – has given consideration to this issue via its policy council in consultation with its members, and has taken a position in support of this VAD bill in support of older Tasmanians being empowered to have a choice.

Mr President, I am aware that some people fear that the provision of a voluntary assisted dying option in and of itself will devalue the lives of elderly Tasmanians.  That fear has been expressed to me in communications I have received in recent weeks.  Some have expressed a fear that it will create an expectation amongst the elderly that they should remove themselves as a burden on their families and community, and that it will encourage them to judge their own lives as lacking value and make them susceptible to being coerced into requesting assisted dying.

I accept that these fears are held by members of the community, but I have not – and I have looked – seen any credible or compelling evidence that this is what has occurred in other jurisdictions, or that this is what would be likely to occur in this jurisdiction.

I cannot say that this is not the case; however, I cannot rule it out.  But I can look to best evidence and best indications.  The briefing we had this morning helped to confirm that a range of robust evidence, from jurisdictions that have voluntary assisted dying, have not furnished any clear indication that people who are vulnerable become more likely to be harmed under this sort of legislation.

Mr President, if the presence of an empowering choice in clearly defined end-of-life circumstances further exposes some of the existing failures we have in the support, care and the community regard that is given to older Tasmanians, that should be a strong impetus to rectify such failures – but not an argument to block the choice of VAD being provided.

I am going to talk a little now about language.  We currently have a situation where some people are making the decision to end their lives prematurely when they are faced with a terminal illness, and without an option to be assisted to manage their death in the latest stage possible – to commit suicide, in effect.  We have heard statistics on this already from other members and I will not repeat them.

In these cases, to ensure that they still have the physical capacity to do it, people have to take action to end their life at an earlier stage than they would otherwise have chosen.  In doing so they miss out on precious time with family and loved ones, time they would otherwise have had, if an option for voluntary assisted dying existed.  They have to take that action in isolation from the family or other support, and the method for ending their life in many cases will be violent and could be uncertain in its outcome.

Furthermore, this not uncommon scenario can also expose others to distress, first responders or others who may discover the person, either deceased or not having achieved a fatal outcome.  I find this an appalling situation.  I find this an entirely unnecessary situation.  Because we have tangible evidence that tells us it is occurring, it is something we have to contemplate quite distinctly as we think about the passage of this bill, because unlike other assertions, fears or concerns expressed that are theoretical and do not have an evidence base or numbers to put to them, this one does.

In recent public conversations generated by this bill, we have seen many conflate voluntary assisted dying with suicide.  The COTA Tasmania paper expressing its position on this issue touches on this and points out that attempted suicide is quite distinct from an enduring, considered and rational decision to end one’s life in the face of unbearable suffering.  I agree with the position put forward by COTA on distinction between the two.  I have also heard the member for Mersey and others articulate a distinction between voluntary assisted dying and suicide, where suicide is the choice between life and death and voluntary assisted dying is a choice between two forms of death.  That distinction also resonates with me.

I have also seen many communications from people insisting that voluntary assisted dying should be called suicide, as according to a dictionary definition that is what it is, a personal voluntarily ending their own life.  That has been expressed in a number of communications to me in recent times.  We know this is not just an issue of semantics.  People use language with intention.  In the course of this community discussion and debate each side is being specific and purposeful in the language they use, particularly in relation to the use of the word suicide.

With supporters of voluntary assisted dying taking pains to make a distinction with suicide and not use that terminology, while in materials distributed, I note, in parishes to encourage churchgoers to write to parliamentarians on this issue, campaigners against voluntary assisted dying, amongst other instructions, specifically instructed letter writers always use the word ‘suicide’ when referring to voluntary assisted dying.

Why does this matter?  It matters because language has an impact.  Beyond the dictionary definitions, suicide is a word laden with emotions, with judgments, stigma and assumptions.  It is also a word that carries significant pain, grief and loss for many many people in our community.  For those of particular faiths, it can also be a word laden with eternal consequences.  Suicide is fairly universally seen as bad, a negative; it is painful.  Many of those in support of voluntary assisted dying want to present it as a positive option and so they assume the negative connotations of what they regard as the inaccurate characterisation of calling it suicide.  I do not believe their choice to do this has any unintended impact on the community and I do not believe it damages the integrity of the debate for them to make this choice around language.  However, many of those against voluntary assisted dying want to paint it as a negative in every possible way and so purposefully link it to suicide.  That has an impact, a negative one I contend, among many people living in the community right now.

I hope much of this impact is unintended by those who use that language but, regardless, it is damaging to people and damaging to the integrity of this debate.  Suicide is something that has touched my family and my life, and this aspect of the debate has occupied my mind in recent times.  I must admit it is an aspect of the public discussion that I find somewhat distressing and which, as a result, also raises my ire.  I do not like seeing what I regard as purposefully hurtful words and actions used to scare people toward a particular position.  I do not believe it is an action of integrity.

As I was considering these matters of language, and in particular the use of the word ‘suicide’ in the context of VAD, I happened upon an interesting analogy.  It is an analogy that perhaps illustrates, in a different circumstance, the distinction between a choice of life and death, and a choice between two forms of death.

Let me describe the analogy.  It is from a time just recently when I was reading articles reflecting on the anniversary of the 9-11 event in the United States.  I read an article about people who were photographed falling from the towers while the fires were raging inside.  I think we would all recall those images from the time.  Apparently, there were many, many people who jumped from the towers before they collapsed.  Those people were faced with certain death – either infernos inside the building, which would have caused their death through smoke inhalation or incineration, or falling to their death from the windows.  Reading this article made me wonder.  Would we say that those who jumped to escape the inferno had committed suicide?  I do not think we would, although technically, according to a dictionary definition, it could be labelled as such.  They chose to take an action that ended their lives.  They could have chosen to stay in the building and be burnt to death in an inferno, or perhaps perished when the towers collapsed.  They jumped, and in doing so I personally do not think they suicided.

This analogy is far from perfect, but I found it an interesting one to contemplate, and it resonated with me as part of perhaps illustrating the distinction that we had heard articulated previously.

I think the vast majority of average reasonable people would make a clear distinction in the actions of those people jumping from the towers – between that and suicide.  I similarly think the vast majority of average reasonable people would make a clear distinction between VAD and suicide.  I think they would readily identify that the elements that are commonly associated with suicide – of depression, despair, desperation, self-harm, violence, not to mention the tragedy, the shock, the loss, the grief and unanswered questions of those left behind of suicide – are not comparable or similar to the circumstances of voluntary assisted dying. 

In voluntary assisted dying, I think most would readily identify the purposeful acceptance, the rational and considered choice, not to mention in many – if not most cases – the loving involvement and care of family members, and loved ones provided with an opportunity to say a meaningful and conscious goodbye. 

I am generalising here, because we cannot make absolute claims, just in the same way that we cannot take individual anecdotes to be representative of the whole.

Mr President, I suggest that all those who insist on calling voluntary assisted dying ‘suicide’ reconsider this choice, particularly once VAD legislation has been passed in this state, which I think it will be at some point.

Once we have determined, as a community, that an option for VAD as part of end-of-life care will be legally available, I invite those same people to think about the impact of labelling some Tasmanians who begin to make that choice at the end of their life as committing suicide. 

I invite them to consider, then, the impact that characterisation would have – especially on families who, in general, would support the choices made by their loved ones. 

I invite them to consider how the use of this characterisation fits with the compassion and the love that I am sure are also key components of their values or faith.

Mr President, I will move on to just a couple of matters from the bill. 

I am pleased that the member for Mersey is proposing to amend the tabled bill to include a set of objectives and principles.  In my view, these are required to provide a context and points of reference through which to understand and interpret the bill.  I have high regard for the set of guiding principles in the Western Australian bill, and will be supporting the amendment to include such in this bill.

I also believe these principles will have resonance beyond the functioning of this legislation.  I hope they will also serve as a strong prompt for review and assessment of some other associated concerns and issues raised in the context of this VAD debate, in particular, matters relating to elder and palliative care.

I will speak on the eligibility requirement of the relevant medical condition in clause 5.  This bill requires as an aspect of eligibility, the person has a relevant medical condition and it is defined as a disease, illness, injury or medical condition of the person that is advanced, incurable and irreversible and is expected to cause the death of the person and also with no reasonably available treatment that is acceptable to the person and can cure or reverse the disease, illness, injury or medical condition and prevent the expected death of a person from the disease, illness, injury or medical condition.

I find this definition comprehensive.  An important element in the definition is the word ‘advanced’.  A concern has been expressed from some that this bill will enable people to access voluntary assisted dying in the early stages of a condition that may ultimately be incurable and cause their death.

Under my reading of this legislation, that would not be possible as it would not meet the eligibility criteria written as it currently stands.  I am interested to see further discussion of this in the Committee stages when we have questions on this and answers from the member for Mersey.

This definition strikes the right balance between establishing a clear and appropriate requirement without creating such a high bar that would limit access to an unnecessary degree.  I am also not especially convinced by a need to include prognosis timeframes.  This is something we will probably discuss and talk about in the Committee stage and I will engage in that discussion then.

I will talk about the decision-making capacity in clause 11.  An important aspect of eligibility in the bill is the confirmation the person has decision-making capacity.  This is a familiar concept in the medical and legal sphere and is well dealt with in the bill.  The bill has a number of safeguards, including the requirement to refer to a specialist for an additional determination if the medical practitioner involved in the VAD process is not able to make a clear determination.  There is also a safeguard of at least two medical practitioners involved in the process overall and in the confirmation of eligibility.

I am reassured that if decision-making capacity in relation to voluntary assisted dying is lost by the person, then the process cannot proceed because the essential element of voluntariness is the ability to change your mind or withdraw from the process at any stage and that would no longer be present.

This bill includes the accepted approach that decision-making capacity is to be assumed unless determined otherwise, which I agree with.  No doubt, as in other jurisdictions, the matter of decision-making capacity will be a key part of the training for medical practitioners in relation to voluntary assisted dying, should this bill go ahead and it become established in this state.

On the matter of voluntariness in clause 12, this bill rightly covers legal matters relating to voluntariness including duress, coercion and threat.  It has been a commonly raised concern by many who oppose this bill, that vulnerable people, especially elderly people, may be subject to family members or others acting in bad faith and insidiously influencing them to request voluntary assisted dying.

There are robust protections against coercion in the bill we are considering and those protections would identify reliably instances of intentional influence.  I am confident that it would be extremely difficult, if not nigh impossible, to progress through the full VAD process legislated in this bill, under coercion or insidious influence.

I am confident it would be near impossible to progress through it in the absence of a strong, active commitment of the person themselves, to the choice they are making.  Speaking directly with medical practitioners involved in the voluntary assisted dying process in Victoria has provided me with additional reassurance on this.  It will still be a matter of some discussion and debate as we go through Committee stage.

I will talk now on the more complex matter of suffering intolerably, which is in clause 13 of the bill.  The bill requires that to be determined eligible, a person must be suffering intolerably in relation to a relevant medical condition.  The only way the presence of suffering and its degree of tolerability can be assessed is subjectively from the person’s point of view.  We are not called on in this bill to compare one person’s suffering against another or to measure in some form the quantum of suffering, nor to make an objective judgement about the person’s ability to tolerate that suffering.

We are not establishing an objective threshold or a quantifiable test such that we can say to a person, ‘Yes, you are suffering a sufficient amount to meet the requirement to access voluntary assisted dying’.  We are reliant on the person’s subjective assessment of both those elements, the suffering and its tolerability.  The bill says there must be persistent suffering that is in the opinion of the person intolerable.

That suffering may be caused by the medical condition or anticipation of the suffering in relation to the medical condition; the treatment for the medical condition or anticipation of the suffering in relation to the treatment for the medical condition; complications arising from the medical condition or anticipation of the suffering in relation to complications from medical condition and; there must be no reasonably available treatment that is acceptable to the person that will lessen the person’s suffering to an extent that is acceptable to the person.

In the bill, this is a wordy and complex clause when you read it in full.  I gave a very brief summary of it there.  This section shows it gets complex when you try to describe and include all the ways relative to a relevant medical condition that someone may be suffering.  I suspect this may be why in the US jurisdictions that have implemented voluntary assisted dying there is no requirement that a person be suffering as part of their eligibility test.  Perhaps this is in recognition of the fact that this element of the person’s circumstances is entirely subjective.  To some extent, it is a given that it exists as an element of their motivation to make a request for voluntary assisted dying.

Perhaps it acknowledges the fact that there is something almost perverse in requiring a person to demonstrate a degree of suffering which in some way earns them the right to access voluntary assisted dying.  It certainly becomes complex and problematic to bring it into the legal framework.  The inclusion of the concept of anticipation of suffering in clause 13 in relation to the relevant medical condition or the treatment for or the complications from that condition gives some people pause.

When I first read this bill, it gave me pause too.  In this context I believe it is reasonable that the anticipation of inevitable suffering is in itself recognised as a form of suffering.  I believe that it would be meaningless to require people to distinguish between their physical, mental and emotional suffering within the context already provided by the definition of a relevant medical condition, remembering that it is advanced, incurable and expected to cause their death.

Remembering that the person is already required to have those elements in their relevant medical condition as part of their eligibility, it would be my preference, perhaps controversially, to remove from this legal framework for voluntary assisted dying the eligibility requirement for intolerable suffering.  I believe it would remain in our shared concept of the purpose and intent of having a voluntary assisted dying option and in practice we could predict that it will be a common and inevitable element of the picture for those people accessing this option.

I do not think that intolerable suffering can be a legal test for eligibility.  Let us talk it through.  To assess this, I will pose a question and we can contemplate it.  Is there a circumstance where all the other eligibilities are met and that we would deem someone ineligible for voluntary assisted dying on the assessed absence of intolerable suffering?  If we cannot contemplate or imagine that situation, that someone meets every other requirement of eligibility in this bill and we have arrived at an assessment that their suffering is not intolerable or in some measure able to be quantified such that we can tick that box under this bill.  If we cannot then say no, they are not eligible, that element of eligibility in a legal sense is meaningless.  It is window-dressing.  This is likely to be a controversial thing and I certainly will not be moving an amendment in relation to it to test it.  I am merely expressing my view here that in terms of a legal framework, that element, I think, is more for the benefit of us as legislators, the general public, perhaps medical people who are involved in this bill.  It is more a reassurance or perhaps a sense of safety that we have articulated it in the legal framework. 

Ms Forrest – Do you not think it is a bit of a community expectation though, when you think about the community debate around this, that is their understanding? 

Ms WEBB – Absolutely.  As I said, what I think is that we would always have it as part of our conceptualisation of voluntary assisted dying as an issue, as a matter for community.  We would always imagine that suffering is part of that.

Ms Forrest – So why would you not have it there then?

Ms WEBB – Because this is a piece of legislation and it is in the eligibility requirements which means that it is a test for eligibility.  As I have just described, if someone were to meet every other element of eligibility, can we contemplate a situation in which they would do that and then we would say they did not meet that intolerable suffering eligibility test?

Ms Forrest – Why would they seek it if they were not suffering in some way?

Ms WEBB – Exactly my point – why would they?  So therefore it should be an assumption.  It is not a legal test.  We cannot test for it legally as a matter of eligibility.  Of course, in almost every sense we cannot imagine it not being there. 

Ms Forrest – Because, I mean, you can – that is an assessment that health practitioners make all the time.  We ask people what is your pain score out of 10.

Ms WEBB – Yes.

Ms Forrest – And we believe them when they say it is 10 or 9 or 2.

Ms WEBB – So what I would put to you is that in every circumstance we could imagine where someone comes to request voluntary assisted dying who meets every other eligibility criterion described in this bill, can you imagine a circumstance – medical people – in which they would not have described that they are suffering intolerably?  It will be part of their picture.  It is not something we can legally test for because the bill says we take their subjective assessment of that.  We take the person saying, ‘I’m suffering intolerably’. 

We are not legally testing for it.  We are never going to exclude somebody from voluntary assisted dying on the basis of not meeting that eligibility criteria.  It is legally superfluous to the bill.  Of course it will be part of our common community understanding.

Ms Forrest – It is an interesting comment.  I mean, if you are going to go down that path, you take it right away from the medical profession altogether.  Why would we have the medical profession there to make an assessment at all?

Ms WEBB – So the medical profession here is required to – we are getting into a debate that may be better put during the Committee stage.  I will wrap things up but I put to you the medical profession is required to assess the eligibility requirement that relates to having a relevant medical condition –  

Mr Gaffney – I will let you two girls do it during the Committee stage.

Ms WEBB – But that is where the medical requirement absolutely has to be there as part of eligibility assessment.  When eligibility is being assessed there is residency, there is age – they are fairly straightforward –

Ms Forrest – Anyone can do that.

Ms WEBB – Exactly.  And then the thing that has to be determined is that the person has a relevant medical condition as defined in the bill.  Only medical people are going to do that.  If it has to be determined that the person has the capacity to make a decision, only medical people are going to do that and it has to be determined that the person is acting voluntarily.  Only medical people are going to do that.  So that is where the medical people come in. 

You will not be making any objective assessment of people’s level of suffering and ability to tolerate that suffering.  They will say to you it will be there; it is not a legal test.  As I said – I thought this might be a little bit controversial – I am not going to move an amendment on it.  I think it gives everybody comfort to have it there.  It does reflect our common understanding.  I do not think it is a legal requirement to have it there.  I think it is a meaningless legal matter to have in the bill. 

I bet I will get picked up on that by many people, but I am just saying there are certain things we test for with eligibility, and that does not have to be one of them.

Ms Rattray – It might take the member for Mersey’s headline in the morning, I think. 

Ms WEBB – Just to be clear, I am not saying people are unlikely to be suffering intolerably.  I think it is highly likely 100 per cent of people accessing this – were it to be an option – would be suffering intolerably.  I think it is the way we would understand this sort of process to work.  It is in our common conception of voluntary assisted dying.  It just does not have to be and is not relevant to be part of the legal assessment.

That went on for a bit longer than intended.  Apologies, Mr President, and members.

I am going to speak briefly about the medical practitioners’ involvement in this bill and we have touched on that a little bit there already.  There is some sensitivity around it and I know there is a lot of debate and discussion in relation to the roles and the framing of the involvement of medical practitioners in this process.  I acknowledge that views among the medical profession do vary on this matter, broadly and generally, but also on the detail.  In other jurisdictions I note that they have seen times of transition and acceptance after the introduction of voluntary assisted dying and in some cases they are continuing in that process and have unresolved matters that relate to the involvement of medical practitioners.

The degree of involvement of medical practitioners will vary and close involvement in this process would be voluntary which is an absolutely essential element to have there.

We can anticipate that should this bill pass, matters relating to voluntary assisted dying including an understanding of the legal requirements around it will become part of medical training and the medical landscape more broadly.  Some features from the bill that I note are that assessment is required from two medical practitioners as part of the process.  It is a requirement in all jurisdictions, I think, that have legislated for voluntary assisted dying.  We are following a pattern.  Australia, however, is the only jurisdiction that has put qualifications above and beyond what is required to practise medicine, which is what has been in other places.  Canada has nurse practitioners included as does Western Australia in the capacity of consulting practitioners.

I am going to acknowledge that there are those who are focused much more on ensuring that matters relating to the involvement of medical practitioners are well considered in this bill and in the process of debating this bill.  I appreciate their focus on those elements and I will participate in those conversations in more detail as we go through the Committee stage.

While there are many more details and elements of this bill that could be discussed we will no doubt do it in a very granular fashion during the Committee stage of the debate.  There are a number of matters that I am interested in clarifying on the Floor of the House and I am sure there will be a number of amendments proposed that I will be receptive to considering and will participate in debating these.

As is the case expressed by all members so far, they are interested to ask questions, to consider amendments.  In fact, I note the member for Rosevears indicating her support for the broad premise of the bill and her reservations on detail and looking at some particular matters as we are going through committee.  All of us are similarly placed. 

I would briefly like to reflect on what we face in the next stage of this debate when we go into Committee with that viewpoint.  That is, that we will be coming to talk about the granular detail of this bill.  We will come with questions; some will come with amendments.  We are going to be faced with a situation in which we will start the debate perhaps with broad support and questions and we will have to end the debate with a decision.  During the Committee stage we may have the opportunity to have some questions answered.  They may be answered to our satisfaction, or not quite to our satisfaction.  For some questions it may be no actual answers are able to be provided. 

Ms Rattray – That will certainly be the case of the funding.  We will not be able to have that information.

Ms WEBB – Certainly, because that is a matter for implementation.  It is not a matter for the legislation.

Ms Rattray – Just for one example.

Ms WEBB – Indeed, and we will be having amendments presented.  Each of us may support some, may not support some, we might find the ones we support go through, we might find the ones we support do not go through.

What I am trying to paint here is a picture that we will likely each of us having entered the Committee stage, potentially with broad support, but questions. I think that is the most common scenario expressed so far.  We are likely to end the Committee stage each of us individually to some extent satisfied and to some extent not satisfied with what has occurred in the process.  It is almost a guarantee each of us will enter the Committee stage of this bill not entirely happy with the bill in terms of, it does not have every element we wanted it to have.  Every question we had has not necessarily been answered.  What we will be faced with then is a very specific question for ourselves of what are our thresholds for support, or for not supporting, the bill.

I wanted to highlight that as a bit of an expectation – particularly in light of the member for Rosevears’ reflection of support, but questions – that we will be deciding, and we will need to justify why, in the context of an imperfect satisfaction with the bill, which all of us can assume we will have, that we will then have to vote to support or not support.  We will have to justify that back to our community and those who have been interacting with us on this matter.  I am just flagging that is where we are going to get to.

Personally, it concerns me the fact of not being able answer every question or the fact of not being able to arrive on every issue where we might have like to arrive might become a blockage to this bill.  I hope that is not the case.

Ms Rattray – That happens with every piece of legislation.

Ms Forrest – We do not all get what we want.

Ms WEBB – It is a function of our role here.

Ms Howlett – What is the financial cost here?

Ms WEBB – If I may continue, I am imposing on a great deal of members’ time and attention.  I would finally like to mention implementation.  A period of implementation will be important should this bill pass to establish the procedures, the education to accompany it and the oversight processes.  The education and readily available information will be an absolute priority both in a broad community base level in specific VAD training programs for medical practitioners, but also in a generalised training and awareness raising amongst health practitioners on the whole will be required.

Given the range of inaccurate claims and misleading assertions that have been made in the public domain during this discussion on this VAD bill, I hope if the bill passes and we move into implementation a thorough approach to community education and educational support to the medical profession are made a high priority to provide reassurance and confidence.  In Canada, Victoria, and some other jurisdictions, there have been various methods of assisting people navigate the system as it has been established with advice lines, community education and resources navigators, centralised care coordination services and the like.  This looks like a very positive model to assist people to understand and navigate new processes and could be coordinated with existing medical and palliative care systems.

To some final thoughts – I believe providing the option for voluntary assisted dying as part of end of life care is entirely compatible with excellent palliative care.  A meaningful and rich experience of end of life, a hopeful and empowered death, celebrating and valuing of life.  And it is compatible with medical practitioners doing their absolute best to care for the patients.  I believe there is a community expectation in the most meaningful way that requires us as elective representatives to establish the option for voluntary assisted dying in Tasmania.

For those who fundamentally think it is not right to assist in ending a life, then all other issues compound and are insurmountable.  But if you expect that it has been determined that assisting the end of life is possible and legal under certain circumstances then most of the concerns raised are things that can be balanced, managed, solved or developed over time. 

Tasmanians overwhelmingly fall into the latter category.  The introduction of an option for voluntary assisted dying in our end of life care would be a profound shift.  This would be a positive shift and a valuable opportunity for our community.  It should prompt a productive reflection, reassessment and recalibration of other connected parts of our medical care and social context.  I would hope that this will have an ultimately positive effect.

I hope that we will see that impact in aged care, in palliative care, in advanced care directives and planning for end of life, in support for individuals and families including grief counselling and the human right to autonomy and access to medical care.

Acceptance and inclusion of voluntary assisted dying may be the release, the impetus, the long-needed drive to progress the full suite of those important associated matters.  While some fear that providing an option for voluntary assisted dying is telling people that their lives do not have value, I see the provision of this option as allowing people to make choices about the value, the quality and the conditions of their life in the face of their imminent death.

I want Tasmanians to have access to voluntary assisted dying as an option at the end of life.  I want to see this bill passed.