Ben White, Katrine Del Villar, Lindy Wilmott, Rebecca Meehan
Western Australia may soon become the second Australian state to permit voluntary assisted dying, with the release on Tuesday of its Voluntary Assisted Dying Bill 2019.
A historic bill to decriminalise abortion in New South Wales has passed the State Parliament’s Lower House, following two weeks of impassioned debate.
Members of Parliament were granted a conscience vote on the bill, which aims to remove abortion from the Crimes Act and define it as a medical procedure in its own legislation. . . [Full text]
Western Australia’s Voluntary Assisted Dying Bill 2019 includes provisions intended to protect all registered health practitioners who refuse to participate for reasons of conscience. By virtue of the Health Practitioner Regulation National Law (Western Australia) this includes nurses, midwives, pharmacists, radiologists, psychologists and other professions.
However, the bill explicitly excludes students, probably to ensure that only non-student practitioners are permitted to accept and process requests, assess patients and provide euthanasia or assisted suicide (EAS). Unfortunately, the effect of this exclusion is that nothing in the bill prevents students from being required to participate in all aspects of EAS delivery under the direction of a fully qualified registered health practitioner, or making such practical training a requirement for professional qualification. This would be inconsistent with one of the guiding principles in the bill (Section 4(1)j), so it may be an oversight that will be corrected during the legislative process.
Fully qualified registered health practitioners may refuse to
participate in the request and assessment process, prescription, supply
or administration of lethal drugs, and to be present when the drugs are
administered (Section 9(1)).
The bill further states that, by identifying these actions, it does not
intend “to limit the circumstances in which a registered health
practitioner may refuse” to do them (Section 9(2)).
This would seem to extend protection to include refusal to do do things
not specified in the section, but obviously related to providing
euthanasia or assisted suicide, like setting an intravenous line for
administration of lethal drugs. That interpretation is consistent with the definition of voluntary assisted dying, whichincludes
“steps reasonably related to such administration.” Clearly, this would
include any of the actions explicitly required by the law, such as
assessments, notifications, acting as a witness, dispensing lethal
drugs,
filing reports, etc., as well as setting intravenous lines
and other technical preparations for providing EAS.
Sections 112 and 113 provide protection from
civil and criminal liability and
disciplinary proceedings for those involved
in processing and fulfilling EAS requests if they act in accordance with the law. Section 113(4) extends this protection to omissions in accordance with the bill, but not to the refusals
it permits. Since “omission” does not mean “refusal”, this may reflect
either an oversight in drafting or a deliberate decision to expose
objecting practitioners to liability.
What could prove to be most contentious is the requirement in Section 19(5)b
that an objecting physician give a patient “information approved by the
CEO” of a public service department, perhaps a health department.
Whether this will be acceptable to objecting practitioners will depend
entirely on the substance of the “approved” information. It is unlikely
to be problematic if it consists of general information about how to
contact other physicians or health authorities. On the other hand,
resistance is likely if the “approved” information portrays euthanasia
and assisted suicide as morally acceptable services or directs patients
to EAS providers. Objecting practitioners may refuse to comply if the
law effectively compels them to express support for moral views they
reject, or forces them to facilitate what they consider to be immoral or
unethical acts by directing patients to EAS providers.
Since 1971 in NSW, it has been lawful to terminate a pregnancy where an honest belief is held that the procedure is “necessary to preserve the women involved from serious danger to their life, or physical or mental health.”
This Bill provides that the termination of any pregnancy up to 22 weeks will be permitted without restriction.
After 22 weeks, the Bill proposes that pregnancies may be terminated subject to certain conditions taking into account the woman’s “current and future physical, psychological and social circumstances.”
Freedom of Conscience and Religion
One part of the Bill which has not attracted much attention is the impact it has on the freedom of conscience and freedom of religion of registered health professionals.
In NSW, no referral is required to obtain a termination of pregnancy and information on the availability of such services is widely available on the internet.
Despite these facts, the Bill imposes a referral obligation on all registered health professionals who have a conscientious objection to disclose their conscientious objection to a person who asks them about those matters.
They must then refer the person or transfer their care to another health professional who they believe can provide the service and does not have a conscientious objection. In this way the Bill requires registered health professionals – which is a very broad group of people – who have a conscientious and often religiously grounded objection to participate in the procedure at least to the extent of a referral.
This is so, whether they object to abortion at all, or to abortion after a particular stage of gestation, or for sex-selection or disability grounds.
These obligations impact on all registered health professionals with conscientious objections but they are particularly onerous for Catholic health professionals because, in that tradition, participation in abortion causes an automatic excommunication from the Church.
If the State wishes to further liberalise the law in relation to the termination of pregnancy, it should not do so at the expense of health professionals with a conscientious or religious objection to participating in the procedure.
