Category: Legal Commentary

Euthanasia bill falls short on freedom of conscience

Objecting students unprotected, refusal may incur civil, criminal liability

Sean Murphy*

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.

Why the abortion bill is a threat to freedom of conscience

Eternity

Michael Quinlan

Professor Michael Quinlan is Dean of Notre Dame Law School and a Freedom For Faith board member

The Reproductive Health Care Reform Bill 2019 which was introduced into the New South Wales Parliament on 1 August 2019 has attracted some media attention.

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.

https://www.eternitynews.com.au/opinion/why-the-abortion-bill-is-a-threat-to-freedom-of-conscience/

Hospitals and Health Industry in Limbo After Court Delays Implementation of “Conscience Rule”

Lexology

Duane Morris LLP

Regardless of whether organizations support or oppose the Conscience Rule, it is possible that it will become law on November 22 unless the courts and HHS move with uncharacteristic speed in a highly charged political arena.

Hospitals, health insurers and a variety of other healthcare entities do not have to be ready for a July 22 go-live date for the Trump administration’s “Conscience Rule.” Instead, the federal rule―designed to support health workers who opt out of providing patient care that violates their conscience, moral or religious beliefs―is facing such intense challenge in federal courts that the U.S. Department of Health and Human Services (HHS) agreed to a stipulated request to delay the effective date until November 22, 2019. . . [Full text]

“Do or Refer” Doctors Are Not Allowed to Use Their Best Judgment for Individual Patients (No More Jeanette Halls)

Choice is an Illusion

Margaret Dore

Yesterday, a doctor asked me about “do or refer” provisions in some of the newer bills seeking to legalize assisted suicide in the United States. For this reason, I now address the subject in the context of a 2018 Wisconsin bill, which did not pass.

The bill, AB 216, required the patient’s attending physician to “fulfill the request for medication or refer,” i.e. to write a lethal prescription for the purpose of killing the patient, or to make an effective referral to another physician, who would do it.

The bill also said that the attending physician’s failure to comply would be “unprofessional conduct” such that the physician would be subject to discipline. The bill states:

[F]ailure of an attending physician to fulfill a request for medication [the lethal dose] constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).[1]

The significance of do or refer is that it’s anti-patient, by not allowing doctors to use their best judgment in individual cases.

Consider Oregonian Jeanette Hall. In 2000, she made a settled decision to use Oregon’s assisted suicide law in lieu of being treated for cancer. Her doctor, Kenneth Stevens, who opposed assisted suicide, thought that her chances with treatment were good. Over several weeks, he stalled her request for assisted suicide and finally convinced her to be treated for cancer.

Yes, Dr Stevens was against assisted suicide generally, but he also thought that Jeanette was a good candidate for treatment and indeed she was. She has been cancer free for 19 years. In a recent article, Jeanette states: 

I wanted to do our law and I wanted Dr. Stevens to help me. Instead, he encouraged me to not give up and ultimately I decided to fight the cancer. I had both chemotherapy and radiation. I am so happy to be alive!

If “do or refer,” as proposed in the Wisconsin bill, had been in effect in Oregon, Dr. Stevens would have been risking a finding of unprofessional conduct, and therefore his license, to help Jeanette understand what her true options were.

Is this what we want for our doctors, to have them be afraid of giving us their best judgment, for fear of sanction or having their licenses restricted or even revoked?  

With proposed mandatory “do or refer,” assisted suicide proponents show us their true nature. They don’t want to enhance our choices, they want to limit our access to information to railroad us to death.

Notes

[1] AB 216 states:

156.21 Duties and immunities. (1) No health care facility or health care provider may be charged with a crime, held civilly liable, or charged with unprofessional conduct for any of the following:  

(a) Failing to fulfill a request for medication, except that failure of an attending physician to fulfill a request for medication constitutes unprofessional conduct if the attending physician refuses or fails to make a good faith attempt to transfer the requester’s care and treatment to another physician who will act as attending physician under this chapter and fulfill the request for medication. (Emphasis added).

Margaret Dore is an attorney in Washington State where assisted suicide is legal. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia worldwide.