Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Tasmania.

DYING WITH DIGNITY BILL 2009 (No. 37)

Second Reading

[3.46 p.m.]

Mr McKIM (Franklin - Leader of the Greens - 2R) - Mr Speaker, I move -

The bill be now read the second time.

Many people with terminal illnesses face the indignity and in fact the agony of an unrelentingly painful death.

Mr SPEAKER - You will have a vote on this of course?

Mr McKIM - Yes, indeed, Mr Speaker, I do intend to bring this bill on for a vote. As I said, Mr Speaker, many people with terminal illnesses face the indignity and indeed the agony of an unrelentingly painful death and this occurs despite the best efforts of the best palliative care experts utilising the best palliative care techniques. That is something that even opponents of voluntary euthanasia admit - that is, that despite the best of palliative care and the best efforts of the best palliative care experts some people with terminal illnesses inevitably die an agonising and humiliating death. In fact, Mr Speaker, current law forces many people to suffer pain and indignity as they die. That is an archaic law that I believe is out of step with contemporary community values. This bill seeks to provide those sufferers - that is, sufferers who are facing an agonising and often humiliating death - with the right to choose a peaceful and dignified death within a safe and regulated legal and medical framework. It also seeks to provide certainty and protection for doctors and other health care workers who choose, for very good, very right reasons, to aid somebody to die.

Mr Speaker, this is a conscience debate and I wish to begin by sharing with the House some of what my conscience tells me about this issue. My conscience tells me that it is wrong to force people to die agonising and humiliating deaths when they do not want to die that kind of death. My conscience tells me it is wrong that the law is so out of step with community sentiment on this issue. My conscience tells me that it is wrong that voluntary and non-voluntary euthanasia is currently practised within Tasmania in a completely unregulated framework. My conscience tells me that it is wrong that courts have become de facto public policy makers due to a failure of parliaments around the world to take responsibility for this area of public policy. My conscience tells me that laws should be based on values like compassion and respect, which this bill is, and my conscience tells me that it is wrong that the law protects us while we are alive but fails us as we are dying, and that is what current law does. In short, my conscience tells me loud and clear that I should support law reform in this area.

I should indicate for the record once again that this is a private member's bill as euthanasia is, quite understandably, not a policy position of any party represented in this House. My bill follows the essential criteria that Dr Rodney Syme uses to define voluntary euthanasia and these are Dr Syme's criteria: firstly, it is an act taken by an individual or requested by that individual. Secondly, it is taken or requested by a rational and fully informed individual. Thirdly, it is that individual's intention to be relieved of intolerable and otherwise unrelievable suffering. Fourthly, it is an action that hastens death and, fifthly and finally, it is for that individual a dignified death. My bill clearly meets Dr Syme's criteria.

Firstly, I will give a bit of background. I have commissioned two polls in Tasmania, conducted by EMRS, one in 2008 and the other in May this year. The following question was asked:

'Thinking about voluntary euthanasia, where a doctor complies with the wishes of a dying person to have his or her life ended, are you in favour of or against a change in the law that would allow doctors to comply with the wishes of a dying person to end his or her life?'

More than three-quarters of the 1 000 Tasmanian adults interviewed in those two surveys answered in favour of a change in the law. It is 78 per cent in 2009, up from 75 per cent in 2008. I should point out that the results of those polls match almost exactly every other poll that I am aware of that has ever been taken on this issue in Australia, and indeed every other poll that I am aware of that has been taken on this issue anywhere in the Western World. Make no mistake, public opinion is overwhelmingly in favour of law reform. This does not necessarily mean that this Parliament or any member of it should automatically support law reform but, in my view, it does mean that if we reject it, we should have very good, strong reasons and I do not believe opponents of my bill and of voluntary euthanasia have made that case. I do not believe that the reasons that they have put forward constitute the level of reason that would rightfully result in an overturning and a voting against such a clear public opinion as exists on this issue.

While I am on the matter of public opinion, I want to ruminate briefly about why there is such a disconnect between parliaments in Australia and around the majority, although not all, of the Western World and the people who elect them. I have to confess, having thought a lot about this over the last few months, I am still unsure why parliaments do not have a greater history of delivering on the will of the people who elect them on this issue but ultimately I suspect that it stems from a fundamental lack of courage inherent in legislators and the significant influence of religious bodies on so many members of parliament around the Western World, but I would be very interested if any other members had some thoughts on that disconnect.

As further background, after I tabled this bill there was a motion debated in the upper House to send this bill to an upper House committee. That was voted down, and rightly so, in my view. By a vote of this House my bill was sent to the Joint Standing Committee on Community Development for an inquiry. I voted against that. I thought, and still do, that it was unnecessary and would not add to the debate in a meaningful way. Nevertheless, I thank members of that committee for their work, even though in my view it was unnecessary.

Before I leave parliamentary process, I want to speak a little bit about what is going on today so that all MPs are very clear in their minds what they are voting on when they vote on the second reading of this bill. I acknowledge that issues have been raised via the committee process around some aspects of the drafting of this bill. I do not accept the overwhelming majority of those criticisms. I note in passing that the Northern Territory act on which my bill is very closely based was examined by a Commonwealth Parliament committee and there was no criticism at all made by that committee of the drafting of the Northern Territory act. The point here is that we are now voting on the second reading. No MP should, with any veracity, get up in this Parliament and say, 'I support voluntary euthanasia but I am worried about some of the minor drafting issues in this bill, therefore I am not going to support the bill on the second reading'. All members know how this Parliament works. A vote on the second reading is a vote on the intent of the bill and of the underpinning philosophies of the bill.

If you support voluntary euthanasia but have a few drafting concerns, you are obliged to vote for it on the second reading. You are obliged to go through Committee to try to improve the bill. If you do not think the bill has been improved in Committee, then vote against it on the third reading. That is what the House of Assembly's processes are designed to provide for. No member should expect not to receive criticism if they get up in this place and use drafting as a reason to vote no on the second reading. If you support voluntary euthanasia, vote for this bill on the second reading. If you have concerns about the drafting, they can be addressed in Committee. I have continually said I would be prepared to accept reasonable amendments that would improve the bill if the bill should get to the committee stage.

I had a couple of issues with the way the committee proceeded. I will go to the Attorney-General refusing permission to the Solicitor-General to provide written legal advice to the committee later in my speech. Despite some submissions to the committee criticising the drafting of the bill, at no stage was I given an opportunity by that committee to respond to those criticisms. Never at any stage was that opportunity given to me. That is a failure of natural justice and it is an indictment on the majority views of that committee.

One of the very strong reasons for supporting this bill is that when the law diverges too greatly from reality then it is our duty as legislators to reform the law. We know that voluntary and involuntary euthanasia is currently practised in Australia. All of the empirical data shows that. I refer members to a 2001 survey entitled 'The intention to hasten death: a survey of attitudes and practices of surgeons in Australia' by Douglas et al., which found the following:

'36.2 per cent reported that, for the purpose of relieving a patient's suffering, they have given drugs in doses that they perceived to be greater than those required to relieve symptoms with the intention of hastening death.'

So over a third of surgeons who responded to this survey admitted giving drugs in doses greater than those they perceived to be necessary to relieve symptoms with the intention of hastening death. I will speak at greater length about the law around this issue a little bit later.

We have had other studies. A landmark study conducted in 1997 by Singer et al. found that, and I quote:

'Australian law has not prevented doctors from practising euthanasia or making end-of-life decisions explicitly intended to hasten the patient's death without the patient's request.'

That is non-voluntary euthanasia and I want to be clear that my bill is not proposing to establish a system of non-voluntary euthanasia in Tasmania - far from it. We know these acts are occurring but they are occurring in a completely unregulated and, I believe, unlawful way. This is not only exposing patients and sufferers to being abused but also exposing some healthcare professionals who, with entirely laudable motives, engage in euthanasia. Of course courts have been forced to step into the widening gap between the law on one hand and medical practice and social attitudes on the other. I will go to that matter a little bit later as well.

I say to people who intend to vote against my bill that they should answer this question of themselves. It is an ethical question as much as anything else. Why do you want to allow slow euthanasia, without a sufferer's consent, with no legislated regulations or oversight, which is what is going on day after day in palliative care wards around the country, but not voluntary euthanasia, with the sufferer's consent at a time of their choosing within a legislated framework, which is what my bill provides for? If every member asked themselves that question, I think the answer would assist members greatly in forming a view on this bill. This bill responds to the needs of medical practitioners for choice and for legal and medical safety, certainty and protection when they receive a request from a sufferer for assistance to die, and that is a very regular occurrence.

Before I go any further I would like to address some concerns that have been placed on the record by opponents. I am not going to deal with the rubbish concerns from the Right to Life organisation which ran the death tourism angle in the media down here, despite my bill explicitly having a residency requirement in it. I am not going to dignify their concerns with any detailed response. One of the main arguments run by opponents of voluntary euthanasia is that somehow regulating a practice that is already occurring will result in vulnerable people being exploited, and I have no doubt we are going to hear a fair bit about this today. Let us look at the data from some places where voluntary euthanasia has been in place for a long period of time. Oregon, a place I visited earlier this year to have a look at how their dying with dignity framework was going, did a review in 2007 that showed - and this is an Oregon government review -

'There is no risk of a slippery slope towards abuse of people in vulnerable positions, including the elderly, women, the uninsured, those with low educational status, poor, people with disability or chronic illness, people with psychiatric illnesses, including depression, or racial or ethnic minorities, compared with background populations.'

No evidence at all of vulnerable people being exploited. The Oregon data also shows that other fear campaigns run by opponents of voluntary euthanasia are not borne out in reality. There has been no rush to end lives in Oregon. In fact only 341 people overall since the law went into effect have died under Oregon's dying with dignity framework. Just to assist members, the Oregon population is just under 4 million, eight times the size of Tasmania's. So when you have about 30 or 40 people a year in Oregon, you are talking about literally less than a handful of people in Tasmania.

Mr Hidding - You just shot your own argument down.

Mr McKIM - I can see Mr Hidding salivating away. He is going to interject; that is fine. I will use a story, a parable, told by Mr Whiteley in this House in relation to another bill I brought on regarding same-sex marriage. He told the story of a couple walking down the beach and it was covered in dying jellyfish. One of the couple picked up a few jellyfish and was tossing them back in the water. The other person said, 'What are you doing that for? It doesn't matter, there are thousands of jellyfish and you're only throwing back a couple.' He said, 'Oh, no, but it matters to the one I'm throwing back'. That is the issue here, Mr Hidding; it matters to that handful of Tasmanians whom you want to condemn to dying an agonising and often humiliating death.

In Oregon, as I said, very few people have accessed the dying with dignity framework; there was no rush to end lives - which is the fear campaign that is often run. It was run in Oregon and it has been run here. As a matter of fact there is a much lighter residency requirement in Oregon, but no evidence that people are flocking to Oregon from other jurisdictions to end their lives. The empirical data simply does not back up the arguments used by opponents of voluntary euthanasia. In fact in Oregon palliative and hospice care has improved markedly since the dying with dignity framework was enacted. It has done so because the change in the law has actually helped raise awareness about caring for terminally ill patients.

My time in Oregon was incredibly moving for the many, very impressive healthcare professionals in that State who all, without exception of the ones I spoke to, were supporters of the Oregon law.

I can also report, although I am not claiming it as empirical data, but I asked pretty much everyone I came into contact with in Oregon what they thought about it, so I was asking taxi drivers, hotel porters, people who were making me sandwiches in the delis and anyone else, the mayor and anyone else I came across. Not one person in Oregon said to me that they did not support the dying with dignity framework and most were enthusiastic supporters of it.

Mr Michael Hodgman - Have you been to Holland?

Mr McKIM - I have, but not in the context of this bill and I have not conducted the same close study of the situation in the Netherlands.

The case for reform of the law is strong even if, for the purposes of considering this part of the debate, we leave aside the values-based argument and we leave aside compassion and respect for human dignity. Let us just have a good look at Tasmanian law. Under sections 153 to 162 of the Criminal Code Act 1924, homicide is illegal and there is a particular part of the code which deals with the death of someone who is suffering from a terminal illness. I think it would help for me to quote sections 154 and 154D of the Criminal Code and I will do so now. Section 154, special cases of homicide, says:

'A person is deemed to have killed another in the following cases where his act or omission is not the immediate or not the sole cause of death' -

and in the case of subsection D that applies whereby any act or omission hastens the death of another who is suffering under any disease or injury which would itself have caused death. The wording of that is interesting for its use of the word 'hasten' and that will come up a fair bit in my speech.

Under section 163 of the code, it is currently illegal to aid another person to kill themselves, but, of course, it is not a crime to kill yourself in Tasmania. Under section 53 it is also illegal to consent to the infliction of death upon oneself but again I make the point that it is not illegal to kill yourself in Tasmania.

In 2004, the Tasmanian Supreme Court refused to jail a Tasmanian man, Stuart Godfrey, for assisting his mother to die with dignity and Mr Godfrey's mother was suffering -

Mr Michael Hodgman - She was a special woman and it was a very special case. I knew her.

Mr McKIM - She was a very special lady, Mr Hodgman. It was, but it is an argument that courts are stepping into a legislative black hole that the parliaments have left because of our collective cowardice, and I will go to that argument now.

Mrs Elizabeth Godfrey was suffering intolerable pain that was not relieved by palliative care and she was too frail to take her own life without assistance. Presiding over the case, Justice Peter Underwood, who is now of course the Governor of Tasmania, commented in the following terms and I quote from his judgment:

'It might be said that those who wish to end their life, but are physically unable to do so, are discriminated against by reason of their physical disability.'

I could not agree with Chief Justice Underwood more strongly. Current law discriminates against disabled Tasmanians. The law has to be fixed to remove this clear discrimination because, if any member of this House wishes to end their own life, because we do not have a disability that would prevent us from doing so we can do so without being in breach of the law, but if you are disabled to the extent that you cannot kill yourself you are unable to end your own life without asking somebody else to help which, of course, places that person in an intolerable position.

I note that the sentence given was effectively the court setting Mr Godfrey free, and rightly so, in my view - and due to the lack of public outcry, I can only assume rightly so in the overwhelming majority of Tasmanians' view - but again, the court is stepping in and acting as a de facto public policy maker because of the cowardice of the people who are elected, and paid very well, to make public policy in this State.

Mr Michael Hodgman - I agree, the Chief Justice was right.

Mr McKIM - Thank you, Mr Hodgman, and I look forward to your contribution.

It is not in the interests of our democratic system for the law to be so out of step with public attitudes, nor is it in the interests of our democracy for judicial officers to be setting public policy in the absence of leadership from Parliament. It is certainly not in the interests of sufferers, their families and medical practitioners who are seeking to help them, for new legal safeguards to be set by the courts without corresponding provisions required to regulate and safeguard those new standards. I make the point again that this bill seeks to regulate something which we know is already occurring.

Even the best of palliative care provided by the best palliative care experts cannot properly and totally relieve the suffering of everyone who is terminally ill. I want to place a couple of quotes from palliative care experts on the record and then I will go on to speak a little bit more about the law, because this goes squarely to the issue of hastening death. Both of these quotes are taken from evidence given to the Community Development Committee. Firstly, Dr Gerard McGushin said this:

'I have been in a position many times of providing palliative care relief of symptoms where I know for a fact that by ramping up the morphine and rendering the patient either comatose or semi-comatose, I am going to hasten that person's death, but we are talking about only a few hours or days - it's not months. I have never had any problem with that. The doctors in Tasmania do not have a problem with that. That is just good palliative care.'

I also quote Dr Paul Dunne, who said:

'Some of what we do in palliative care will hasten death. That is a given.'

How that does not fall within the provisions of homicide under the section of the Criminal Code that I read out earlier is absolutely beyond me.

Mr Hidding - It's not the primary purpose.

Mr McKIM - I can hear Mr Hidding interjecting once again, and I am sure I will have to put up with that a little bit today, and he is talking about intent. I am happy to talk about intent because, as Mr Hidding knows, intent is necessary to sustain a charge of murder but it is absolutely not necessary to sustain a charge of manslaughter. So at the very least we have two doctors on the record saying they have hastened death. That is manslaughter in anybody's language. I am not criticising the doctors for doing that, I am criticising the law for being so out of touch with reality. It is shameful that the law is so out of touch with reality. Strangely enough, the Attorney-General, who is now in the House, instructed the Solicitor-General not to provide written advice on this issue to the Community Development Committee.

Ms Giddings - Yes, but he did provide it with oral advice.

Mr McKIM - That was an absolutely outrageous decision by an Attorney-General who should know she has a major legal issue on her hands but is quite happy to keep her head in the sand. Let us have a look at what happened between the committee and the Attorney-General.

Ms Giddings - You're refusing to understand the role of the Solicitor-General, Mr McKim.

Mr McKIM - I will go to the role of the Solicitor-General shortly, Ms Giddings, if that is all right with you.

On 2 September the committee wrote to Mr Sealy and said:

'In investigating issues around the Dying with Dignity Bill 2009, the Joint Standing Committee has received survey data published in the Medical Journal of Australia in 2001 which suggests that 36.2 per cent of general surgeons responding to the survey admit to the use of drugs to intentionally hasten the death of terminally-ill patients. The committee seeks your advice on the legal status of doctors working in Tasmanian hospitals and palliative care facilities who participate in such practices. I enclose the above-mentioned article for your information.'

It was not until a month later that a substantive response was given, a fairly long time in the context of a committee that was established off the back of a motion moved by the Attorney-General and which she knew had very short time frames. This is that response:

'I am instructed that the Attorney-General is content for me to appear in person' -

Mr SPEAKER - Order. I am letting you know that you have had 30 minutes.

Mr McKIM - Thank you, Mr Speaker. I will just take a couple more, if that is all right. I move on -

'before your committee to provide it with oral advice but I am not to provide written advice.'

Well, Attorney, you have muzzled the Solicitor-General there and do not try to run the argument that he works for the Government therefore he cannot give advice to a committee because many committees I have sat on have received written advice from the Solicitor-General in the past, including the Environment, Resources and Development Committee inquiry into waste management in Tasmania. So it is entirely appropriate and I want to know whether you have sought legal advice from the Solicitor-General on this issue. If not, why not? If so, what did it say?

Mr Speaker, time is going to get the better of me but I want to make another couple of points, if I might, before I reach my conclusion. I want to place on the record the Palliative Care Australia policy on this issue and that is as follows:

Palliative Care Australia acknowledges that, while pain and other symptoms can be helped, complete relief of suffering is not always possible even with optimal palliative care, and recognises and respects the fact that some people rationally and consistently request a deliberate ending of life.'

I also want to reflect on the AMA's position on this issue which is that they took a strong stand against VE despite their membership being pretty much split down the middle on this issue. The AMA if it were to remain faithful to the views of its members should have remained neutral on the issue, not taken such a strong stance against. In doing what they did, they have abrogated their responsibilities to their members.

Mr Speaker, my bill is clearly adequately safeguarded. Clause 8 (1) (c) through to other subclauses in clause 8 require diagnoses once made by the treating officer to be confirmed by another doctor with expertise in the illness in question and also in palliative care for that illness. The treating doctor must inform the sufferer of the diagnosis and available treatments or lack thereof and be satisfied that the sufferer has understood the implications of this information for themselves and for their family and of course a psychiatrist is required to confirm that the sufferer is mentally competent to understand their condition and the options available to them.

Assistance cannot be given under my bill if palliative care options that would relieve the sufferer's pain and suffering are available and also my bill establishes two cooling-off periods during the process so that there is no chance that someone can make a decision in relation to end of life matters in the heat of the moment.

Medical practitioners are protected because clause 6 allows a medical practitioner to refuse a request to assist a sufferer to die if he or she wishes. So no doctor can be compelled to participate under the framework that my bill seeks to establish, and I might add that neither can any health care provider be compelled to participate. So the argument that religious institutions or religious health care providers will be forced into the dying with dignity framework does not stack up once you read my bill.

The State Coroner is empowered to investigate any aspects of the operation of the bill and there is also a requirement that anyone who wants to access the dying with dignity framework can only do so if they have been a Tasmanian resident of at least 12 months. This is to address the concern raised in relation to death tourism.

Assistance to die cannot be given under the framework of this bill if the treating doctor has any reason to believe it is no longer the sufferer's wish and a request for assistance can be rescinded in any matter at any time during the process and this must be recorded by the doctor.

I want to go to something that Professor Margaret Otlowski said in a submission to the Community Development Committee hearing. She said:

'There is one thing I think could be improved and it relates to voluntariness. The bill is already very strong in seeking to ensure competence and that it is a voluntary request and that this is documented and so on. We know that the bill is derived from the Northern Territory legislation. One measure that I am on the record for suggesting is that it is important that at the time of administration voluntariness has been confirmed.'

At the moment that is not actually a requirement. That is a reasonable criticism of my bill and I can confirm that should the bill go into Committee, it would be my intention to move an amendment to require proactively a confirmation that a sufferer still wishes to go ahead just before the end of their life.

I have noticed objections to my bill from the Archbishop of Hobart, the Right Reverend Adrian Doyle. According to the Mercury, Archbishop Doyle considers that, and I quote -

'The bill creates an ethical minefield for [Catholic] hospitals and aged-care facilities. … The bill has the potential to put Catholic hospital and aged-care staff in intolerable situations.'

The Archbishop is completely wrong. The bill does not place anyone with religious objections to euthanasia in an intolerable situation and, as I said, Catholic and any other religious-based health and aged care providers can refuse assistance if they wish.

I want to conclude by going to a few personal statements of people who have been active in this area and I first want to talk about Robert Cordover and I would like to acknowledge his wife Nica and I think Gideon. Michael is not here. Robert Cordover was a most remarkable man, brave, intelligent, with enormous dignity, a brilliant communicator with a great sense of humour. He had motor neurone disease and his life ended not long ago. I want to read a couple of things that Robert sent me. I quote from Robert Cordover:

'Australia supports torture

We do not see this headline in any of our daily newspapers yet I am being tortured under legislation mandated and enforced by both State and Federal Australian governments - simulated drowning, stress positions, humiliations and other indignities. I have motor neurone disease, a terminally fatal degeneration of nerves and muscle tissue to which the medical profession has surrendered to its paramount enemy, death. Nothing can be done to stop the inevitable advance of MND.

The medical community is complicit with the policy makers of torture in not actively working to permit the resolution of our suffering by our voluntary death and they continue to support our torture by washing their collective hands of us to let us suffer through the full disease cycle.'

He goes on to say:

'The first torture is the indeterminate death sentence. I don't know how long I'm to be held in this Guantanamo and can't be told. What I do know is that all my voluntary muscles will continue to degrade until I can't walk, talk, use my arms or hands, swallow and, finally, unable to breath I will expire. The sentence is a humiliation of any measure of my humanity.'

That is the torture to which current law subjected Robert Cordover.

I also want to go to the death of 31-year-old Melbourne writer, Angelique Flowers, who was diagnosed with Crohn's disease at age 15 and she said just before she died:

'All I want after 16 years of painful Crohn's disease and now cancer is to die a pain free, peaceful death. The law would not let a dog suffer the agony I'm going through before an inevitable death. It would be put down. Yet under the law, my life is worth less than a dog's'.

I agree with her, under current law it is, and it is a shameful thing but I want to be very clear about how she died and this is a story told by her brother Damian who held a bowl under his sister's chin as she vomited faecal matter in the last hour before her death and who told the Age newspaper about that and told the Age that she was still in pain despite massive doses of morphine and other pain-killers, and that is the kind of death that current law condemns people to die against their wishes right now. It is a bloody disgrace, Mr Speaker, in my view.

Mr SPEAKER - Order. That language is not acceptable.

Mr McKIM - I withdraw the word 'bloody', thank you.

Mr Speaker, Robert Cordover wrote this:

'Relief and true palliative care should start with the reassurance that physician assisted death would be available when I need it.'

And I could not agree more.

I have an e-mail from Robert Cordover's wife, Nica, who said the following:

'My husband Robert died on 22 June this year. It is now believed he died by his own hand at a time of his own choosing, having received advice from a compassionate and brave doctor.'

And I agree that that doctor is compassionate and brave.

'My husband' -

Nica said -

'was a supporter of physician assisted death and supported the Dying with Dignity Bill 2009.'

So he did and I would just like to say to Nica and her family thank you for your support and Robert's support.

Mr Speaker, before I end I want to tell one more story about an e-mail I received today from Tom Hickinbotham, former member of the SAS, clearly able to handle pain and stress, who is going to starve and dehydrate himself to death because this Parliament does not care enough to give him the opportunity to end his life with dignity.

Time expired.