Something missing in dying debate

Tasmanians must tackle the ethical and human questions at stake with the Voluntary Assisted Dying Bill, writes Jeff Malpas

ALTHOUGH the Voluntary Assisted Dying Bill before the Tasmanian parliament has attracted a great deal of publicity, almost none addresses the important ethical and human questions at stake, with most discussion remaining at the level of the personal and anecdotal.

It is as if the assumption has been made that what is at issue is simply a matter of dealing with a defect in the existing law and that any opposition to the Bill can be dismissed as little more than religious dogmatism. Yet this ignores the ethical and human questions that are indeed at stake here.

These questions cannot properly be dealt with in a brief discussion. There are huge issues concerning not only the ethical justification for the legislation, but also the ethical consequences that might flow from it.

To what extent might the Bill, when read into law, become not merely a means to offer assistance to those dying, but also a way of encouraging the bringing of an end to life as itself a treatment for suffering, as perhaps something that patients at the end of life are prompted to consider regardless of their prior wishes?

To what extent might the Bill give rise, not to a slippery slope of ethical decline, but rather to a normalisation of practices that we might otherwise have viewed as ethically unacceptable?

There are some points, however, that can briefly be called attention to and that are vital in consideration of the legislation.

Contrary to much of the publicity surrounding it, this Bill is not about the granting of any simple right to choose in relation to death and dying. Instead, the Bill concerns the legalisation of the provision of active assistance in the exercise of very limited sorts of choice regarding the time and manner of an individual’s death. It aims to make it legal, under certain special conditions, for medical practitioners to “intervene” in bringing or helping to bring about the death of a person who, even if near the end of life, would not otherwise have died at that time or in that manner.

This means the Bill does not concern the important question of the right to refuse medical treatment — a right that each of us already possesses so long as we know how to exercise it (although a right that does require protection in terms of ensuring the capacity for it to be so exercised). Instead the Bill specifically concerns the enabling a new and additional form of medical intervention.

The latter point is especially important since one of the reasons why we find ourselves in the situation in which a Bill like this seems necessary is because of the increased medical capacity actively to ‘intervene’ to prolong life, even in circumstances where such prolongation is problematic.

Many older people, especially, are fearful of finding themselves in a situation where they are kept alive in circumstances in which, if they could choose, they would prefer to be allowed to die.

The danger, of course, is that the sort of interventionist approach this Bill promotes may actually tend towards a culture in aged care that sees voluntary assisted dying as itself a solution to the burden of aged care — and perhaps even as a solution to other forms of medical difficulty, both from a therapeutic and policy perspective.

The latter issue is especially worrying when one reflects upon the inadequacy of our aged care system as that has been brought into such sharp relief by the current pandemic.

One can reasonably ask whether, in a situation in which we are already facing a medical and social crisis as a result of the pandemic, and in which that crisis has illuminated the dire state of aged care in this country, the bringing forward of this Bill now is simply ill-advised and inappropriate. And this question is independent of whether one supports the general idea behind the Bill.

Overly complex law is frequently bad law, complexity arising from the attempt to formalise what is often resistant to formalisation. This is especially so when it comes to matters of fundamental ethical significance. The complexity of this Bill is not a recommendation in its favour but an indication of the ethically problematic domain into which it moves.

There is a long line of philosophers who have argued that it is our attitude to death and dying that fundamentally shapes our view of life and the nature and value of human being. Legislation like the Voluntary Assisted Dying Bill is different from most other legislation precisely because of the way it touches on the fundamental questions at stake here. Its danger, and the danger of the debate that has so far surrounded it, is that it also obscures and avoids those very questions.

Jeff Malpas is Emeritus Distinguished Professor at the University of Tasmania and Distinguished Visiting Professor at Latrobe University. He held the Chair of Philosophy at the University of Tasmania for almost 20 years and was founding director of the University’s Centre for Applied Philosophy and Ethics.

THERE IS A LONG LINE OF PHILOSOPHERS WHO HAVE ARGUED THAT IT IS OUR ATTITUDE TO DEATH AND DYING THAT FUNDAMENTALLY SHAPES OUR VIEW OF LIFE AND THE NATURE AND VALUE OF HUMAN BEING