APPROPRIATION (CONSOLIDATED ACCOUNT) RECURRENT 2013–14 BILL 2013
Second Reading — Cognate Debate
Resumed from 16 October.
HON NICK GOIRAN (South Metropolitan):
I am pleased to continue my remarks on the Appropriation (Consolidated Account) Recurrent 2013–14 Bill 2013 and the Appropriation (Consolidated Account) Capital 2013–14 Bill 2013, which deal with the budget for the current financial year. I want to touch on a couple of things, particularly with regard to two areas—namely, palliative care and suicide prevention. I am pleased to be able to do that today in particular, because during the luncheon interval that we should be able to enjoy in about 35 minutes, I will be pleased to co-host an event with the member for Girrawheen, which is the launch of the Parliamentary Friends of Palliative Care, so it is timely that I have the opportunity to speak on that a little this afternoon in the lead-up to that launch. I say at the outset that I recognise, as has been the case in some recent debates on these matters, that this is the type of issue that is of interest to members on all sides and is one on which in many respects we have taken a bipartisan approach. A little later I want to discuss a related matter that is the subject of some sensitivity, but we will get to that in a moment. It is a matter that is in fact before the Tasmanian Parliament at the moment.
However, before we get to that, I am very pleased to note that the Barnett Liberal–National government has been actively addressing two pressing social issues in this state, which, as I mentioned, are palliative care and suicide prevention. I note that in the 2013–14 budget, the government has announced increased funding of $19.513 million for palliative care services over the four-year forward estimates. As I understand it, by 2016–17, the annual spending on palliative care is estimated to be $40.5 million. I think that that ought to be noted and appreciated by all and recognised for what it is. In addition, I note—I took particular interest in this area during the recent budget estimates hearings that took place in this chamber—that additional funding of $10.22 million has been directed to expanded palliative care services; $1.93 million to the statewide paediatric palliative care service; $3.79 million to palliative care services provided under contract by Bethesda Hospital; and $3.56 million to the implementation of the continuum of end-of-life framework. That information was provided as a result of some of the questions I asked during those budget estimates hearings that took place on 27 September this year, so I was grateful to the Parliamentary Secretary to the Minister for Health for providing that information to me on that day.
I also note that a recent Senate Community Affairs References Committee report on palliative care in Australia noted that “palliative care services in Western Australia are well supported by government funding”. In that report it was also noted that Silver Chain was receiving “‘probably 95 per cent or a little bit above’ of its funding” from the Western Australian government.
I would also like to touch on the area of suicide prevention, which has been the subject of some recent debate in this chamber. The government has committed more than $13 million to the 2009–2013 suicide prevention strategy, with the aim of reducing the rate of suicide for all Western Australians, including those groups particularly at risk, which includes those aged over 65 years. It seems to me that improved diagnosis and effective treatment for depression and other mental health disorders that affect older people have already contributed to a decrease in the rate of suicide among the elderly. On what basis do I say that? I refer to a 2009 government publication, “Western Australian Suicide Prevention Strategy 2009–2013: Everybody’s Business”. I encourage all members to look at that document, particularly page 21.
I mentioned that there had been some discussion in this place in recent times on these matters, and I was pleased to note that there was cross-party support for suicide prevention, as evidenced in the recent support given by all speakers to the motion moved by Hon Lynn MacLaren on 12 September 2013 that the Council recognise World Suicide Prevention Day and RU OK? Day. In my remarks on that motion I drew the attention of the house to the inappropriate reporting by The West Australian of the suicide of Barbara Harrison and the action of one of its journalists in agreeing to keep secret Ms Harrison’s plan to commit suicide, rather than following the expert advice of Lifeline Australia, which is never to give such an undertaking to a suicidal person.
In respect of bipartisan support, I also note that there was cross-party support for the motion I moved a week later, on 19 September 2013, calling on the whole community to work together to eliminate elder abuse in all its forms. I was pleased to see that cross-party support once again.
Having said that, by way of a segue into my remaining remarks in respect of these budget bills, I will say that there were some remarks made at the conclusion of that debate that perhaps introduced a jarring note, when a member more or less suggested that to deny the elderly the ultimate right, as they put it, to determine when they had had enough of living and when the time was right to end their life, was itself a form of elder abuse. As I say, that was a little jarring for me, so in my remaining speaking time I would like to present a survey of how the issue of assisted suicide is playing out across various jurisdictions that have legalised it and, I suppose, to see if we are able to move together to achieve some cross-party consensus on this issue, just as we have, as I have already indicated, on the issues of palliative care and suicide prevention in general.
There seems not to be a unanimous position when it comes to the issue of assisted suicide. As I say, it is a sensitive topic and we need to address it. I also note, as I said in my introductory remarks, that this is something that is presently exercising the minds of our colleagues in Tasmania. I thought it might be useful to look at an academic article by a former, recently retired member of this chamber, who has gone to some effort to crystallise some of the contentions in support of assisted suicide. The article is entitled “Facing a Terminal Illness — Should how, and when you die, be your last right?” and was published in the twelfth issue of The New Critic in August 2010. It seems to me that that particular document might be a useful starting point for some examination of the arguments for and against and, as often happens in these matters, the information that is not provided.
Only a couple of years ago that article came to some attention after an interview on ABC 720’s Morning radio program. Members may recall that around that time, in January 2011, the topic of the interview was fairly highly publicised because of the alleged murder of Herbert Erickson’s 75-year-old partner. As it happened, this gentleman subsequently pleaded guilty to the murder but drowned at Floreat Beach on 19 November 2012 before facing sentencing. Naturally, when there are such tragic circumstances, this topic rises to the surface once again.
My views on this subject are relatively well-known. It is unfortunate that when tragedies like that take place there is sometimes a little misinformation and misunderstanding, and an assumption by some—certainly not by all—that we should immediately legalise a regime of assisted suicide. So, as I say, I would just like to make some remarks with regard to some of the studies that have taken place and some of the recent developments. What often happens is that there is some suggestion that if one is not in favour of such a proposal, one is fearmongering. I certainly take exception to that, because the implication is plainly that I am one of these fearmongers, so I would like to present some analysis of what is going on and ascertain whether that implication is actually true or whether the counter allegation I could make is true—that sometimes people are using a few cheap one-liners when debating this matter.
The article I referred to earlier was published in August 2010 and makes reference to a bill that was at the time before the Scottish Parliament—the End of Life Assistance (Scotland) Bill. The article basically used that legislation as evidence that there was momentum for legalised euthanasia continuing around the world. It certainly is true that there are repeated efforts across multiple jurisdictions around the globe in this regard, so in that respect I agree that there are attempts. However, it is one thing to attempt to bring in a piece of legislation and another for it to be successful. I am delighted to report that the momentum for defeating euthanasia bills is continuing. Interestingly, the Scottish Parliament subsequently rejected that bill by a decisive 85 votes to 16. Other jurisdictions that have recently had to engage in this matter include the South Australian House of Assembly, which defeated a similar bill on 14 June 2012, and on 6 November 2012 a proposition to allow physician-assisted suicide in Massachusetts was defeated by 51 per cent to 49 per cent in a popular ballot. In respect to that proposal, I note an article published in the New York Times by disability rights activist Ben Mattlin. This gentleman has congenital spinal muscular atrophy and has never walked, stood or had much use of his hands. He wrote —
To be sure, there are noble intentions behind the “assisted death” proposals, but I can’t help wondering why we’re in such a hurry to ensure the right to die before we’ve done all we can to ensure that those of us with severe, untreatable life-threatening conditions are given the same open-hearted welcome, the same open-minded respect and the same open-ended opportunities due everybody else.
For those who are interested, the article is “Suicide by choice? Not so fast”, dated 31 October 2012.
Other jurisdictions that I think may be of interest include the New South Wales Legislative Council, which on 23 May 2013—the day after we were all sworn in to this chamber once again—defeated the Rights of the Terminally Ill Bill 2013 by 23 votes to 13.
An argument is often mounted that there is momentum in this area, but can I suggest, with all due respect, that the momentum is consistently to defeat these bills. I have found that sometimes people outside the chamber find this odd. I explain to these people that in the chamber the level of responsibility is significantly increased because our decisions are not based only on personal opinion; they will affect every Western Australian constituent. While someone might express a personal view without much responsibility, it is much more serious when entering this place and having to implement or remove a right on behalf of several million people. This forces members of Parliament to exercise their minds as to what could happen if this measure was in place. Rather than only looking at, shall I say “loosely”, the positive aspects about a matter, we are forced to look at some of the negative aspects, and what is often referred to in this chamber as the unintended consequences. That is why I have a lot of sympathy for what Mr Mattlin, the gentleman with congenital spinal muscular atrophy, said, because he quite rightly understands that this is something that will affect everybody, not just the super strong.
Interestingly, the article that I referred to earlier by the retired member went on, as is often the case, to refer to jurisdictions where it does exist, notably including Oregon, the Netherlands and Belgium. I think it would be useful to bring members up to speed with what is happening in those jurisdictions because there are some basic statistics that are often used in these debates supposedly to support the initiative but without necessarily providing all the relevant statistics. One of the dangers of using statistics is that they can be misused. Having said that, let me try to bring to the public record some of the matters that were not included in the retired member’s article.
Reports from the jurisdiction of Oregon indicate that physical suffering is not a major issue for those requesting physician-assisted suicide. How do we know that? Of the 673 people who died from ingesting a lethal dose of medication as at 14 January 2013, only 23.5 per cent mentioned inadequate or concern about pain control as a consideration. Interestingly, earlier annual reports noted that patients discussing concern about inadequate pain control with their physicians were not necessarily experiencing pain.
The article I referred to earlier does not mention the 38.6 per cent who died after taking prescribed lethal medication who cited concerns about being a burden on family, friends and caregivers as the reason for their request. It is quite interesting that the percentage who had that as a concern, in many respects, dwarfs the ones who were concerned about inadequate pain relief. I say that not in any way, as members will know, to diminish the sense of personal sympathy and empathy we feel for those struggling with pain. That is not in dispute. I am confident to say that all members in this place, and in fact in all parliamentary jurisdictions, have that same level of concern. On that, we are in agreement. Where a dispute arises is: does this group in the Oregon example, which is 23.5 per cent, trump the concerns that we all have—again, I would safely say everyone here and in parliamentary jurisdictions across the globe—for those who are pressured in these situations? I refer to concern for those who feel that they are a burden on their families, friends and caregivers, which we would all agree is an unacceptable reason. We acknowledge that people feel that way, and we feel a burden and compassion to help them through that situation. Do people suffering from inadequate pain control trump the vulnerable who are feeling that they should not be here? That is really what it boils down to, and whether one person’s rights will trump another person’s rights. At the moment, in Western Australia, it is the latter group to which I referred. We say that because we are concerned as a chamber about issues like elder abuse, and that on balance we will not have this regime in place. I know that not everyone agrees with me, and I accept everyone’s right to their own view on this, but this is my assessment of why we have ultimately come to that conclusion. At the end of the day, one person’s rights trump someone else’s. It is very interesting to see that in Oregon, where this is legalised, this is the case—38.6 per cent versus 23.5 per cent.
I will move on because, unfortunately, I do not have much time this afternoon. A further study by Linda Ganzini and her colleagues found that one in six of the people in Oregon who died from a prescribed lethal substance had clinical depression. In 2012, only two of 77 people who died under the Oregon law were referred by the prescribing doctor for psychiatric evaluation before writing a script for a lethal substance. Naturally, this raises concerns. If it is the case that one in six people who died had clinical depression and only two of 77 were referred for psychiatric evaluation, there is a breakdown in the system. This has been seen in a legalised jurisdiction. With all due respect to those who talk about fearmongering, this is not fearmongering because it has happened and is happening. I know that this would be of concern to all members irrespective of where they sit on this particular debate. The reason I mentioned the case once again is that it is not fearmongering; it is a matter of fact. In fact, in the debate we had in this place in 2010, the majority of members in this chamber felt that we could not support such a proposal and, I might say, hence why I can see myself never supporting such a proposal. I do not think we can escape from these facts. I will continue to put them on the public record because it disturbs me when I hear cheap one-liners, such as, “Well, it is okay in that jurisdiction”, as if that was a basis for the government to do it here. We should find out what is occurring in other jurisdictions before we decide to follow them down that path.
Looking at other studies in this area, I will refer to a gentleman by the name of Dr Bentz, who is from the division of general medicine and geriatrics at the Oregon Health and Science University. In December 2011, he wrote denying that Oregon’s physician–assisted suicide law had worked well. He cited the example of a 76-year-old patient whom he had referred to a cancer specialist for evaluation and therapy. The patient was an avid hiker. As he went through his therapy, he became less able to do this activity and became depressed. He expressed the wish for assisted suicide to the cancer specialist, but rather than the specialist taking the time and effort to address his depression or to contact Dr Bentz as his primary physician and as someone who knew him, he asked him for a second opinion on the suicide. Dr Bentz told the specialist that he did not concur; that addressing the patient’s depression would be better than simply giving him a lethal prescription. Unfortunately, two weeks later, the patient was dead from an overdose prescribed by this doctor. In The Province, dated 5 December 2011, under the heading, “Oregon’s assisted-suicide law isn’t working”, Dr Bentz concludes—
In most jurisdictions, suicidal ideation is interpreted as a cry for help. In Oregon, the only help my patient got was a lethal prescription intended to kill him.
He then goes on in that article to urge other jurisdictions —
Don’t make Oregon’s mistake.
It is fairly compelling testimony. We should ensure that we are across, acknowledge and appreciate the gravity of what this honourable gentleman has thankfully brought to our attention. Again, it cannot be said to be scaremongering; these are actual cases.
The article I earlier referred to from the retired member does make much of the fact that 97.8 per cent of those who died under the Oregon law in 2009 had some form of health insurance. However, the author does not mention that 2.7 per cent of those who have died under the law cited concerns about the financial implications of treatment as a reason for requesting death. For members who are interested in that particular issue, I refer them to table 1, “Characteristics and end-of-life care of 673 DWDA patients who have died from ingesting a lethal dose of medication as of January 14, 2013”, which is in a document entitled “Death With Dignity Act—2012”. That is certainly worth having a look at. The author also does not make any reference to—I respectfully say—the appalling cases of Barbara Wagner and Randy Stroup, both of whom received a letter from the Oregon Health Plan informing them that the particular chemotherapy recommended by their physicians was not covered by the plan. But the letter advised them that the cost of a lethal prescription to end their life would be covered.
I will move on to look at the issue of what is referred to often in these debates as a “peaceful death”. From time to time, some of the proponents who engage in these debates hold out a promise of a peaceful death by a fast-acting lethal substance. However, again, interestingly, the Oregon jurisdiction proves beneficial to members who are interested in this matter. Oregon reports indicate that in 2010 one person took 53 hours to die after taking the prescription medication. The longest period reported between ingestion and death was 104 hours—that is, four days and eight hours. I refer members who are interested in that to an article in The Seattle Times, dated 4 March 2005, entitled “Oregon man wakes up after assisted-suicide attempt”. I also refer to a lumberjack David Prueitt who, after ingesting the prescribed barbiturates, spent three days in a deep coma, then suddenly woke up asking his wife—this is from the notes—“Honey, what the hell happened? Why am I not dead?” David Prueitt survived for another 13 days before dying naturally from his cancer.
Since 2005, four other people have regained consciousness after ingesting the “lethal” medication. One of them regained consciousness some 88 hours—that is, nearly four days—after taking the medication. The “Death With Dignity Act—2012” document that I earlier mentioned states that in 2012 —
… one patient ingested the medication but regained consciousness before dying of underlying illness and is therefore not counted as a DWDA death. The patient regained consciousness two days following ingestion, but remained minimally responsive and died six days following ingestion.
In my remaining time at this point, I fear that I will probably not be able to venture past the Oregon jurisdiction; I will have to look for a later opportunity in this season of Parliament to provide an analysis of other jurisdictions. I hope it is of benefit to members to at least understand what is happening in Oregon as a first point. Nevertheless, in the time I have remaining I want to look at the issue of the increase in the number of deaths. It is interesting to note that the number of deaths from ingesting lethal substances prescribed under the Oregon law rose by 8.45 per cent, from 71 in 2011 to 77 in 2012. This has risen steadily since 1998, the first year of the act’s operation, when 18 people died under its provisions. For those interested in this legal jurisdiction, there are a few problems, not the least of which are the reasons why people exercise this right—I use that term “right” very loosely in this context. What are the reasons? What is the mental health state of those individuals? What are the financial considerations, including insurance policies? Is it true that there is such a thing in these instances as a peaceful death? Are there concerns about an increase in numbers?
There is also the issue of a faulty prognosis. In 2012, one person ingested a lethal medication 388 days after the initial request for the prescription was made. The longest duration recorded between the initial request and ingestion is 1 009 days—that is, two years and nine months later. Oregon law requires a doctor to first determine whether a person has a terminal illness before prescribing a lethal substance for the person. Section 127.800(12) of the Oregon revised statute defines “terminal disease” for this purpose to mean —
… an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.
Clearly, I suggest that in this case the doctor got it significantly wrong, given that the person lived two years after he was determined to have a terminal illness that would produce death within six months. Again, I hesitate to sound repetitive, but I reject any suggestion of fearmongering. These are actual cases that have taken place.
Sitting suspended from 1.00 to 2.00 pm
Hon NICK GOIRAN: In continuing my remarks on the analysis of the Oregon law, I refer to the discussion by Dr Kenneth Stevens, who writes about his experience of how a prognosis of six months to live works under Oregon law. He writes —
Oregon’s assisted-suicide law applies to patients predicted to have less than six months to live. In 2000, I had a cancer patient named Jeanette Hall. Another doctor had given her a terminal diagnosis of six months to a year to live. This was based on her not being treated for cancer.
At our first meeting, Jeanette told me that she did not want to be treated, and that she wanted to opt for what our law allowed – to kill herself with a lethal dose of barbiturates.
I did not and do not believe in assisted suicide. I informed her that her cancer was treatable and that her prospects were good. But she wanted “the pills.” She had made up her mind, but she continued to see me.
On the third or fourth visit, I asked her about her family and learned that she had a son. I asked her how he would feel if she went through with her plan. Shortly after that, she agreed to be treated, and her cancer was cured.
Five years later she saw me in a restaurant and said, “Dr. Stevens, you saved my life!”
For her, the mere presence of legal assisted suicide had steered her to suicide.
That is the evidence from Dr Stevens on the Oregon law. In the remaining time I want to briefly mention another aspect of that law, which is the short relationship that people can have with their attending physicians before being prescribed with a lethal substance. The Oregon law requires that lethal prescriptions be written only by a person’s attending physician, who is defined as —
… the physician who has primary responsibility for the care of the patient and treatment of the patient’s disease.
However, the published data shows that some doctors have had a relationship of one week or even less with the person before writing the lethal prescription, with 61 physicians writing the 115 lethal prescriptions provided during 2012. That was a range of between one and 10 prescriptions per physician. This data confirms that some doctors are very willing to write prescriptions for lethal substances for patients whom they barely know. My final point on the Oregon law is the issue of whether doctors are present at the time of death. In 2012, for 66 of the 77 deaths—in other words, 85.7 per cent—no physician was present at the time of the death. Therefore, in the vast majority of these deaths there is no means of knowing whether the lethal prescription was self-administered or administered by another person, possibly forcibly or without the consent or knowledge of the patient.
An Oregon lawyer, Isaac Jackson, an expert in injury claims, including wrongful death claims, has written of his attempt to investigate the 2010 death of a man under the provisions of this act. He wrote, and I conclude on this note—
In 2010, I was retained by a client whose father had died under our assisted-suicide act. Unlike other deaths I have investigated, it was difficult to get basic information.
After I wrote the state epidemiologist, I received a letter from the Attorney General’s Office that the agency charged with collecting assisted-suicide data, the Oregon Health Authority, “may only make public annual statistical information.” The letter also referred me to the Oregon Medical Board and law enforcement.
The Board wrote me that there could be no investigation without an allegation of misconduct against a physician. At my request, a police officer was assigned to the case. Per his confidential report, the Oregon Health Authority would neither confirm nor deny that my client’s father had died under our act. Per the report, the officer did, however, talk to the doctor signing the death certificate who said that he did not know that the death had involved assisted-suicide. The death certificate listed the immediate cause of death as “cancer” and the manner of death as “natural.”
Per the report, the officer also spoke with potential perpetrators who assured him that the death had been voluntary. He closed the case.
On that basis, Mr Jackson has concluded that the Oregon law is not safe. I conclude at this point. As I said, there is much more to be said about other jurisdictions. I will look for another opportunity to provide that analysis but I hope that the point has been usefully made that many of these examples are actual cases. It is inappropriate, unfair and inaccurate for people to suggest it is scaremongering and I encourage members to be across this information.