Inside the debate over Victoria’s assisted dying bill
If you had given Daniel Andrews a crystal ball on election night in 2014, the Victorian premier-elect would have been surprised at what he saw: within four years he would be the state’s most powerful champion of a euthanasia bill that would, after a deliriously protracted debate, pass the lower house. To some who knew him then, this was unthinkable. The devout Catholic was personally opposed to euthanasia, as was his Catholic deputy – and influential bridge to the party’s Right – James Merlino.
In the 2014 Victorian campaign, both major parties officially opposed euthanasia. The Greens and the Sex Party, in supporting the policy, were political outliers. While polling suggested most Victorians also supported it – polls have reflected majority national support since the 1970s – the political status quo held.
Celebrating with the new premier that night was Andrews’ father, Bob. The cattle farmer was dying of cancer but had still appeared with his son on the campaign trail. Up on the confetti-littered stage, before lights, cameras and cheering party members, Andrews triumphantly lifted the arm of his father. A year and a half later, in a palliative care home, Bob Andrews died. The premier eulogised his father from a shed on his farm.
Earlier this month, reflecting on this with ABC Radio’s Jon Faine, Andrews described his father’s death as a “good” one – meaning that it was agonising, but as painless and dignified as it could be. Still, the ordeal changed him. “When you go through that, and experience that, and know it so deeply and personally, that can’t help but frame your understanding and your empathy for those who cannot be described as having a good death.”
The premier had changed his mind. He says his opposition was never derived from his Catholicism, but from his time as health minister. In that portfolio, he saw a strained system with too few beds and feared that euthanasia might be grotesquely abused in the name of efficiency. Would patients feel pressured to end their lives? Would doctors or carers feel pressured to encourage it? Was palliative care as good as it could be? Last week, on the eve of the parliamentary debate, former prime minister Paul Keating published an article echoing these fears.
The opinion of Victoria’s health minister, Jill Hennessy, mattered, too. Last year, she was effectively freed by Andrews to publicly state her personal support for voluntary assisted dying – an opinion informed by her mother’s multiple sclerosis diagnosis when Hennessy was three. Over the decades, she has watched her mother’s debilitation. “She has to literally wither away until an infection takes her, or she chokes, or pneumonia comes by virtue of her body breaking down internally,” the minister told The Age last year. “It’s unbearable to think that will be the end of her life.”
In December 2016, Daniel Andrews announced that the Voluntary Assisted Dying Bill would be introduced to parliament in the new year. It passed the Victorian lower house last week, 47-37. The “ayes” included most of the Labor cabinet and a good number of Liberals. It didn’t include Deputy Premier James Merlino, or the Liberal leader, Matthew Guy.
The powerful combination of Andrews and Hennessy mattered to the vote’s success, but also crucial was the formation of a parliamentary committee inquiry into “end of life choices”. The committee comprised members from both major parties, and included both those who supported and opposed the policy. It ran for 10 months. Trips were made to overseas jurisdictions where versions of euthanasia had been legislated – or decriminalised – and in June last year their voluminous report was published. It made 49 recommendations, most fundamentally that assisted dying be legalised for the incurably – and grievously – ill. Afterwards, an advisory panel of medical experts was formed.
Debate in the Victorian upper house may start as soon as next week. Conversations with parliamentarians yield the same thing: uncertainty about the outcome. As recently as a fortnight ago, supporters were confident in their numbers. Now, it’s “knife edge”.
In 2008, the Greens’ Colleen Hartland introduced a private member’s bill to the Victorian upper house. It was called the Medical Treatment (Physician Assisted Dying) Bill, and it had as a co-sponsor the Liberals’ Ken Smith. Private member’s bills – those introduced by parliamentarians outside of cabinet – are rarely successful. At the federal level, barely more than a dozen have passed since federation. A notable exception was the bill introduced to the federal lower house by Kevin Andrews in 1996 – one that invalidated the Northern Territory’s euthanasia legislation. Only four territorians availed themselves of euthanasia’s legality before the federal government’s intercession.
More often, private member’s bills are designed to spark wider debate. Hartland’s bill was defeated 25-13, but passionate argument was had. “I suppose my support for the policy was philosophical back then,” Hartland tells me. “Now it’s personal as well. I’ve seen some hideous deaths now, of young people. The premier is a classic example of someone who didn’t support it, but came to after a terrible experience.”
Hartland says one thing that’s different now from the time she introduced her private member’s bill was the long parliamentary inquiry to which the current bill was subject – a process she describes as strong and rigorous. “I didn’t have the resources of government then,” Hartland says. “I didn’t have the assurances. But today we have a health minister who has the courage to support this. Jill has been prepared to take this head on. But I really don’t know how the vote will go – and we may not know until the vote itself.”
In 2008, Hartland worked closely with Dying With Dignity in drafting her bill. One man she collaborated with there was Dr Rodney Syme, a Melbourne surgeon and vice-president of the organisation. The Saturday Paper interviewed him three years ago, when he was publicly declaring that he had procured euthanasia drugs for the terminally ill. It was a strategic provocation. Syme was essentially asking police to arrest him, or by not arresting him make public what was already privately known: in unknown numbers, doctors were already helping the suffering die – unguided and unprotected by law. The parliamentary inquiry confirmed as much last year. But as Syme predicted, nothing happened.
“Opposition to assisted dying comes fundamentally from canon law, but the parliamentary inquiry says clearly that the status quo is unacceptable,” Syme told me this week.
“The process has been exhausting and enervating – there have been highs and lows. I listened to the debates. They were respectful, it’s true, but one thing that disappointed me was that the level of accuracy left a lot to be desired. One argument is that there aren’t sufficient safeguards. We have 100 pages of legislation compared with the Netherlands’ six. You would require two doctors to approve it, both fellows of colleges, and one an expert in your particular illness. There is counselling. A cooling-off period. And I don’t know of another area of medicine where it is mandated that two doctors support an action. If anything, this very tight legislation will not be easy for suffering people to access.”
Another who was watching the debates from the public gallery was media personality, and founder of Go Gentle Australia, Andrew Denton. Diagnosed with advanced heart disease in July, Denton temporarily relinquished his public advocacy while he underwent a triple-bypass. He is recovering well. “I think what really knocked me about was not surgery but the 26-hour debate,” he jokes. “I would characterise the debates as respectful, and mostly diligent. But it has always been the case that those who oppose it run arguments of mistruths. The parapet which they hide behind is that palliative care can be effectively applied to all. It cannot. It’s not true.
“To listen to Rudd or Keating, you’d think that this law invented death. The truth is, euthanasia is already happening, illegally and in the shadows. And desperate people are killing themselves in horrific ways – ways that have dreadful ripple effects for first responders and family. Keating once told Hewson that he’d do him slowly. Now his faith instructs that God will do you slowly. It’s infantilising to humans. The society that Keating claims to be protecting has moved on. In massive numbers, Australians believe that the dying should be compassionately helped to die. I don’t buy that Keating’s opposition isn’t faith-based – scratch the surface, and almost all opposition to the law comes back to faith. And what a coalition Keating and Abbott make – the Mad Monk and the True Believer in harness. But many have to publicly divest their opposition from their faith because the arguments don’t work in a secular country.”
Paul Keating’s intervention was dramatic, but whether it was effective is another matter. The Labor icon’s arguments do not seem to have swayed votes in his party’s Victorian caucus. Regardless, he argued that the legislation was a profound misstep. “This is a threshold moment for the country,” he wrote. “No matter what justifications are offered for the bill, it constitutes an unacceptable departure in our approach to human existence and the irrevocable sanctity that should govern our understanding of what it means to be human… An alarming aspect of the debate is the claim that safeguards can be provided at every step to protect the vulnerable. This claim exposes the bald utopianism of the project – the advocates support a bill to authorise termination of life in the name of compassion, while at the same time claiming they can guarantee protection of the vulnerable, the depressed and the poor.”
Politicians often flatter the better angels of our nature – Keating was warning us about our worst. Cruel and craven instincts would be encouraged by this law, Keating suggested. Worse, it would interfere with the sanctity of life. Then there is the dying patient who considers himself too burdensome, and seeks relief not from physical suffering but guilt.
They are sincere and sobering objections, but when Keating writes “To do or to cause to abrogate the core human instinct to survive and live, for the spirit to hang on against physical deprivations, is to turn one’s back on the compulsion built into the hundreds of thousands of years of our evolution” he sounds like an 18th-century jurist who found suicide a rank offence against God and King. So offensive was suicide in Britain – so disruptive to various pieties – that up until 1823 the bodies of those who had taken their life were impaled on the crossroads of highways.
Keating, I suspect, conflates suicide with assisted dying. They are distinct. Under Victoria’s proposed legislation, the death certificate of someone who qualifies for assisted dying would record their terminal illness as the cause of death. For good reason – it is obtuse not to distinguish from suicide the decision of a terminally ill person suffering grievous and irremediable pain to gently end their life. The distinction is clear: for those who would qualify for assisted dying, there is no acceptable treatment.
“One of the darkest parts of this debate,” Denton tells me, “is the deliberate and callous conflation of assisted dying with suicide. Suicide is a tragedy that darkens us all. This is not that. This is someone who is already dying. There is a reflexive, faith-based disgust with suicide but it’s an incredibly cynical thing to conflate both.”
Keating makes lofty appeals to evolution and sanctity, but there’s a studied ignorance of the coroner’s submission to the inquiry. This is crucial to the Victorian premier changing his mind. “Of 2879 suicide deaths between January 2009 and December 2013,” the submission reads, “the Coroners Prevention Unit found 240 in which there was evidence that the deceased had experienced an irreversible deterioration in physical health due to disease or injury. Among these suicides, most of the deceased were suffering from multiple diseases.”
That’s one death a week. Many of these were violent, impulsive, and horrifying to those who found them. Of these 240 deaths, poisoning, hanging and guns were the three most common methods – employed by 172 of the 240 people. Seven jumped in front of a train. There is no data on the botched attempts.
“With assisted dying unavailable, people with illness or injury that are suffering, or anticipate suffering, suicide alone, often in violent or disturbing ways,” the parliamentary report said. “Having the option of assisted dying would allow these people to either end their lives in a more humane manner or let their illness run its course. It would provide them comfort in the knowledge that they could end their life with assistance if they decided to.”
Which is to say that those who might qualify for assisted dying can find comfort in it without using it. Syme refers to this as existential relief, or the “fire exit option”.
The fact remains that as good as palliative care can be – and the parliamentary report accepts that it can be improved – there are “some people whose suffering cannot be alleviated”. Syme says the number is about 5 per cent.
Like others I’ve spoken to, Syme and Denton will not predict whether Victoria’s bill will clear the upper house. It is by no means certain. “History tells you,” Denton says, “that this debate is lost until it is won.”
This story is about voluntary assisted dying for people with terminal illness. Counselling is available: 13 11 14.
This article was first published in the print edition of The Saturday Paper on Oct 28, 2017 as "Inside the passing of Victoria’s assisted dying bill ". Subscribe here.