One of our national daily's most senior and respected columnists exposes the problems with South Australia's Advance Care Directives Bill.
From The Weekend Australian, 24th November
SOUTH Australia under the Labor government has regularly overspent the health budget by hundreds of millions of dollars in recent years.
Former premier Mike Rann lacked the resolve to reduce the number of hospitals in metropolitan Adelaide, his power base, and its citizens are over-serviced.
Health Minister John Hill has just introduced a bill covering advanced-care directives, which will begin to address the issue by opening the way for practices currently categorised as euthanasia. We South Australians seldom do things by halves.
As things stand, doctors have obligations to provide food and hydration in all but the very last stages of life, when it might be reasonable to consider it as futile or burdensome. This basic care is being redefined as healthcare that, under this bill, could be withdrawn at any stage.
It broadens the scope for doctors - and even nurses, in some circumstances - to implement requests for euthanasia or assisted suicide in patients' advanced-care directives. It empowers substitute decision-makers (and even next of kin who stand to be beneficiaries) and medical personnel acting unilaterally to authorise withholding such basic care.
Interestingly, the bill asserts that it is not legalising euthanasia. However, as its critics have been quick to point out, it does not define what euthanasia is and undoubtedly sanctions courses of action or neglect that come into that category. The bill passed the House of Assembly without fuss or public debate, but is expected to generate considerable controversy and fierce opposition in the upper house.
Paul Russell, the director of Hope, an anti-euthanasia network, describes the bill as euthanasia by stealth and one of the most contentious and retrograde pieces of legislation to come before the parliament.
"This bill will subvert the doctor-patient relationship," he says. "It's likely to fuel mistrust on both sides and warranted anxiety in patients. It will plague doctors with conscientious objections because the bill has a faux-conscience clause.
"While not requiring medical practitioners to act against their consciences, it nevertheless binds them to finding a willing colleague, which in itself would make many feel complicit. This is a far cry from the first principle of medicine: do no harm.
"Because the bill allows advanced directives to be expressed in colloquial terms, it gives the doctor broad licence to interpret the patient's wishes. A directive to withdraw or withhold ... care, including basic needs, would be binding ... Sensible people will need to have iron-clad advanced-care directives leaving nothing to chance."
The bill's defenders no doubt will make much of the so-called saving clause: an advanced-care directive cannot make provisions that are unlawful or would require an unlawful act to be performed.
However, the next subsection says: "Nothing in this section prevents an advanced-care directive from making a provision in respect of the withdrawal, withholding or refusal of healthcare to a person that would, if given effect, result in the death of the person."
What the courts will make of this remains to be seen, but pity help anyone caught up in what may well prove to be a lengthy test case, let alone those who may die without request or consent in the meantime.
Since the Dunstan era, SA has been tagged "the social laboratory of the south". Whether those who took a rather touching pride in that label at the time - and who are now of an age where they may become prime candidates - would have felt quite so pleased about all that social engineering leading to the possibility of involuntary euthanasia is another matter.
Certainly Hill and many of the Rann old guard are passionate supporters of euthanasia and dismiss the bill's opponents as religious obscurantists.
Public opinion in Australia, usually on the basis of a single yes-no question, is reckoned to be in overwhelming support of euthanasia, at about 80 per cent. But if the polls were to ask multiple questions about the circumstances in which they approve of it, the likelihood is that the level of unequivocal support would fall to a bare majority.
A recent vote in Massachusetts, once the issues had been fully canvassed, saw a 48-point turn-around on previous polling and the proposition defeated.
The public understands a catch-22 when it's pointed out to them and section seven of the bill is a breathtaking example. It describes the trigger point for the operation of an advanced directive as patient incapacity. As Russell notes: "The section doesn't prescribe what people are authorised and qualified to arrive at such a conclusion, nor does it provide any penalty for an intentional breach of the section.
"There are no checks or balances, no way for the criminal or civil process to challenge the doctor's determination as to capacity. So any consequential action to end the patient's life in effect gives immunity from scrutiny. The simple decision to sedate as a next step would cover any intentional breach. This leaves the door wide open for patient abuse."
Hill previously has been on the public record as saying he prefers that matters to do with the end of life are best dealt with by the courts rather than by legislation. This bill's permissive approach may well leave a lot for the courts to sort out, but it relieves MPs of responsibilities that are rightly theirs. No doubt Hill hopes that judge-made law will end up being even more permissive.
I expect that the debate in the upper house will trawl through the niceties of section seven's catch-22 and the provisions relating to aged care with a vengeance. Legislative councillors have debated and rejected every euthanasia proposal thus far.
It will be interesting to see what they make of entrusting decisions to directors of nursing. There's an obvious conflict of interest because they have to deal with pressure on bed occupancy, juggling staff to manage what they deem an appropriate level of nursing and the financial implications of those decisions.