Assisted dying risks victimisation of vulnerable Tasmanians

Strong safeguards and transparency are needed,

WE respect the opinions of those who promote the current euthanasia Bill, most of whom are moved by compassion for patients who wish to end their lives. However, the Tasmanian parliament will have much to consider at a time of economic uncertainty for our island.

Obviously, the Bill represents a change in legal principle because, if enacted, it will provide the state with the power to authorise the administration of lethal substances with the express purpose of ending a patient’s life. But quite apart from the issue of principle, pragmatic concerns exist as to how to protect vulnerable Tasmanians from applying for assisted dying because of undue influence or coercion. Many people believe dangers are averted by the fact the Bill proposes to make it a crime, imprisonable for up to five years, to coerce a sick person.

From a criminal law perspective, this step only addresses one aspect of deterrence: the consequences of detection. It does not address the other aspect of deterrence: the chances of detection. And this is an enduring problem for euthanasia safeguards. The deterrence value of prison is questionable when the risks of getting caught are likely to be very low, especially if coercion occurs behind closed doors and leaves no physical evidence.

It’s doubtful the Bill can rely on vulnerable people complaining about coercion exerted by, for example, a primary carer. That takes a degree of bravery. In reality vulnerable elderly people can feel afraid, trapped and powerless. Here’s what one elderly Tasmanian told TASCOSS in 2007:

“He knows he can do with me what he likes, because there is no one here to help me … he never spoke to me for seven weeks. He said I hadn’t been a mother, I’d been an enemy. Now I am like this, I am nothing, worth nothing anymore.”

In any case it is clear that the risk of complaints does not prevent other crimes against elderly people, like theft, fraud, rape and violence — as we have seen in recent commissions investigating family violence. Of course, if coercion works and the victim dies, the central witness for any prosecution disappears.

A new feature of this Bill is that, if authorised for “private self-administration”, patients can take lethal doses home with them, potentially for a year. The objective of this approach is to give comfort to patients through the knowledge that they can end their life at any time.

We are very concerned that terminally ill people will be at increased risk of victimisation if they have lethal doses of medication in their homes. For instance, the patient could be verbally pressured into taking the lethal dose, perhaps

combined with a deliberate reduction in their quality of care. An offender might trick the patient into swallowing the dose. Or the dose might be slipped into food or drink.

If these suggestions seem fanciful, note that the Victorian commission on family violence received reports about relatives using intimidation, verbal abuse or violence to steal from the elderly. In one case the will and bank details of an elderly person were altered after she was drugged.

Recent NSW murders by carers using insulin in aged care facilities are examples of the fact that offenders are more likely to kill if they have a plan to avoid detection. This has direct bearing on the euthanasia Bill. Why? Because an offender would know that if he or she tricked or coerced a patient into ingesting lethal medication, toxicological evidence would point to voluntary self-administration. In other words, authorities would assume the death was the patient’s choice.

Suspicions to the contrary would be very hard to prove in the absence of evidence of bruises, video footage and so forth.

The Bill proposes various safeguards, such as lockable cabinets. But no health practitioners are required to be present, or even in an adjacent room, when a dose is taken by a patient who has a “private self-administration” certificate. In our view this lack of transparency is totally inadequate. We find no comfort in the fact that the systems proposed in this Bill are similar to those freshly passed in WA and Victoria — particularly since COVID-19 has exposed inadequacies in decision-making about the welfare of elderly citizens across the country.

The legislature need to carefully scrutinise all of these issues and determine if safeguards might work over time and across all regions of Tasmania.