This is my speech to the Tasmanian Parliament during the recent debate on euthanasia (medically assisted killing and suicide).
Mr FERGUSON (Bass – Minister for Health) – Madam Speaker, I am happy to participate in this debate and acknowledge that before us today is an issue of life and death. Who could be unaffected by any story of tragedy and sadness, particularly when it affects people who we love and care about? Let us have a debate today that does not ever assert that a member who does not agree with the conclusion that the previous two speakers come to means that any of us is less compassionate for our fellow human beings.
As I have said once before in a similar debate a number of years ago in this House, I wish we could pass a law that would end suffering. I wish we could pass a law that would put away the sadness of sickness, injury and disability. We cannot and we must therefore deal with our fellow human beings, fellow Tasmanians, in the most compassionate way we can, understanding that when you take that momentous step of interrupting a law, which has served us for many hundreds of years of do not kill, you need to make a case. You need to prove beyond doubt that even if members were to agree that that is the way to go, that you have guaranteed that your approach to interfere with the laws of murder, manslaughter and assisting a suicide is failsafe.
As rightly as it is, this is a conscience vote and speakers for and against this bill, all of us, need to be able to listen to each other with respect and consideration. It is an issue that largely, but not entirely, transcends where we come from as members of political parties. I have already, in just an hour, heard some compelling stuff. Some compelling statements, some compelling stories, but they have not made the case to change the law, which is that you cannot interfere with the protection of taking one life by another.
There will also be compelling arguments during our debate today from members who have come to a different view to show why this is, despite whatever good intentions has motivated its writing, a dangerous bill. It will create a different group of cruel tragedies to the ones whose stories have already been told.
In the time that I have served as Health minister we have focused as much as we can on improving end of life palliative care. This is Palliative Care Week and we are talking about a death bill. I have also spoken about the need to do more to prevent suicide in Tasmania, the great silent tragedy that has affected every member of this House and the majority of members of the Tasmanian family. We have all been hit hard by suicide in a different way.
We have spent three years talking. In my own language and in government documents we have said every suicide is one too many. Every one of them. Yet before us today is a bill that would sanction suicide. It has been put to me if there is suicide option for the oldies, what about the young ones who are going through intolerable pain, existential, personal pain? Do they get access? Would any one of us encourage that person, that young person to take that horrible step? I am sure we would not. I am certain of it. I see some people shaking their heads, and yet the bill potentially would permit it and sanction it.
There is a different group of cruel tragedies that maybe we need to be mindful of. I believe in my heart that every suicide, including the ones whose stories have been told already today, are tragedies and they are one too many. We do have a clear and simple law against the taking of human life. There are no nuances, there are no ifs, buts, maybes – only defences. There are no provisos for particular circumstances because it is a solid protection.
Today, Ms Giddings for the second time and Ms O’Connor for the third, are promoting a bill that would change this fundamental protection. They are seeking to change the laws around helping someone to kill themselves through suicide, the laws that protect each and every one of us.
Sitting suspended from 1 p.m. to 2.30 p.m.
Resumed from above.
Mr FERGUSON (Bass – Minister for Health) – Madam Speaker, before the break I was saying the bill attempts to change the laws around helping someone to kill themselves and the laws that protect our fellow Tasmanians against murder and manslaughter. If anybody is finding that strong or confronting language, you have spent too long hiding behind euphemism. There is a raft of gentle phrases and lines that have been crafted, I think deliberately, to steer the mind away from the issues that are at the heart of this bill.
The reality is manslaughter, suicide and murder. But the words we hear from those promoting this bill now and in the past, have been euthanasia, dying with dignity or the new term, voluntary assisted dying. These words are designed to cover-up and hide the awful truth of what this bill really is trying to change and from whatever good motivation that may be.
We all agree it is a matter of life and death and if we cannot strip away the euphemistic language and discuss the reality of the matter then it will not be an honest debate and the public interest would not be served.
I ask those promoting this bill to be truly frank and honest in their descriptions, and for those listening to the debate today, if or when you hear those euphemisms, you need to remind yourself that the real words, however distasteful they are, are mercy killing and assisted suicide by a doctor.
It is natural to think about our own future, to think of retirement and then beyond to old age. Thoughts can then turn to a grimmer picture. Elderly, dying from a terminal illness, perhaps mentally diminished, in great pain and with the ‘indignity’ of needing help with simple tasks and personal hygiene. Even if our loved ones would love us all the same, no-one likes to imagine life becoming like that. Surely this person should be allowed to die with dignity, so the case goes.
I understand there is a degree of community support for that principle, as I have described it, of euthanasia in this situation, even if there is no thought given to protecting the community interest, which is not the Tasmanian person’s job. That is our job.
Let us see what else the bill would deal with. For example, who knew in this bill, an 18 year-old girl with a non-terminal illness, could choose to suicide with medical help? We are talking about someone my daughter’s age. Who knew in this bill a 43 year-old person, going through a cancer journey, with a high prospect of successful treatment, could choose active euthanasia instead of continuing with treatment and have their life taken with the permission and involvement of the same cancer specialist and GP who are supposed to be committed to restoring him to full health and a normal life, on balance.
Don’t like it? This is what the bill contains. I am not talking about withdrawal of treatment – which is everyone’s right. I am not even talking about double effect. We are looking at active euthanasia or assisted suicide of someone my age.
Going back briefly to that more extreme scenario which I described, that sick, painful, terminally ill person. They can and ought to be able to die with dignity and should always be supported in that. To interfere in the natural process of dying against the person’s will is both medically unethical and already completely illegal. A person has the legal right, right now, to not be pushed through heroic medical interventions that artificially extend life or which are futile, against their wish. For that wish and for those rights to be respected, they need to be understood and known. This points to the need to better educate and encourage advance care directives or advance care planning in Tasmania, something others are also very interested in, and if time permits I will come back to.
For the third time in eight years in this parliament, taking into account all the previous debates which in each case identified major problems with each bill, the question for today’s MPs wondering what to do is this: have Ms Giddings and Ms O’Connor got it right this time? After all, they have admitted the bill has changed. Is it guaranteed fail safe? Where is their proof? After 20 years of talking about euthanasia in Tasmania and three separate revisions to the various bills, is there absolute proof that vulnerable, older, sicker, disabled, mentally ill or people just tired of living, will be protected? Remember, this is a bill of life and death, and that is irreversible.
Some people like me have thought this through very carefully and conclude that it is not possible, even if you wanted one, to come up with a guaranteed fail-safe law. If I may say, reflecting on some earlier comments today, it is not helpful to pigeonhole any members of this House, or me, because I am a follower of Christ, imperfectly I add. I have looked at this, I think in many cases with more of an open mind and objectivity than those who reject belief in spiritual, moral absolutes. I am aware of the usual demeaning of those Tasmanians who do not believe such a mythical and perfect assisted suicide law is a good idea. Remember, anyone with either a Christian upbringing who believes in the commandment ‘do not kill’, or a person with a secular ethical conviction on the inherent human right to life, both equally have the right to that public policy position and they have the right to argue it for the state of Tasmania.
We cannot optimistically hope that just because good people feel passionately about this issue that they will somehow get it right, that they will make the proof and that they can come up with a guaranteed fail-safe bill. Some people do think that one day somehow that law will emerge, carefully designed, where a person suffering from intolerable pain and existential torment can freely choose, as an empowered individual, to end their life free of coercion, free of another person in their life with ulterior motives exploiting them, with a willing medical professional to make it happen cleanly and quickly, with all moral and ethical issues neatly solved and all doubts erased.
That is because we do not come to this debate only as MPs, but also as individuals. We are here in trust. We have a duty above party political interest to show wisdom in protecting the common interest whenever an individual interest, like this one, is being advanced, and fair enough too. Our job here is not just to express an opinion but to be mindful of the public interest. Are we as MPs interested in the interest of educated, financially independent, legally advised retirees who want to choose the timing and the manner of their own dignified death? I would say, yes. Yes, we should.
We should be interested in the interests of those people but I put forward today that this interest is not really at any risk in the debate on doctor assisted suicide. Thoughts turn instead to the welfare of the voiceless, the disabled, the weak, and those who are not in high society. They are also our interest, are they not? Like the elite, yes they are and I would further say this should be, in fact, our primary interest, indeed our greater interest because it is fairly obvious that in this elite debate they are at massive risk. They will be the new tragedies that I spoke about before the break, I guarantee it. I guarantee they will be the new tragedies and it does beg the question again; have they got it right this time? Is it guaranteed fail-safe? Where is the proof? After all it is the third set of changes. Promises were made before, so why the changes? In a matter of life and death we have to be absolutely sure.
The movers of this bill are involved now for a third time. They have told us each time, no doubt in genuine self-belief, that this bill is safe and robust. They said that each time. The movers told Tasmanians to ‘trust us’. Recently, effectively, euphemistically they have said, ‘We have fixed it now, it has been thoroughly consulted, carefully designed’, even making references to Parliamentary Counsel, ‘trust us this time’ and so the cycle continues.
The previous time this came before the House the Law Society cut it to pieces. As I remember, there were 19 major problems with the previous bill. Today’s bill is based on the same one, supposedly with improvements. Imagine if members of that House, that parliament, had taken Mr McKim and Ms Giddings at their word and passed it into law. Tasmanians would have died against decency and the same is with us now. It is effectively the same bill except, in some cases, worse. They have taken out the terminal illness requirement.
Two promises have been made by the movers. First, Ms O’Connor in her opinion piece in the Mercury on 20 May, ‘Our Bill protects the vulnerable in every provision.’. In the same newspaper on the same day, Ms Giddings said, ‘I strongly believe that we have got the balance right and that it is a robust Bill with many checks and balances to protect vulnerable people.’.
That is what they said. I expect they mean what they say.
Ms O’Connor – Do you want to go through any part of the legislation that you think fails to do that.
Madam SPEAKER – Order. I am not going to allow interjections when members had complete and utter silence for their contributions. It is not fair. We are on restricted time. If members do not like what is being said I suggest you leave.
Mr FERGUSON – In relation to Ms O’Connor’s statement, ‘Our Bill protects the vulnerable in every provision.’, we only need to find one provision where that is not the case to prove Ms O’Connor’s grand promise false. Non-terminal illnesses are now included. Do not mock the AMA when they interpret the criteria, as doctors themselves, reading the way you have constructed ‘eligible medical condition’ in clause 11. Serious but non-life threatening medical conditions, such as serious acne, which can be unbearable, such as osteoporosis, diabetes, arthritis or back pain fall into the new definition. They are irreversible medical conditions.
There is a situation of a provision where the vulnerable have not been protected. How about a second? How about the definition? It is related and based on the subjectivity of the person seeking that so-called voluntary assisted death. ‘Intolerable for the person’, further subjectivity that the person may have access to treatment and care that is not acceptable to the person, even though it might have been offered up by a qualified doctor with good hope.
I heard a reference to death tourism. Number 3, there is no requirement for either of the doctors to have ever met the requesting person. Couple that with the residency requirement, frighteningly open. Register to vote in Tasmania, rent a room or transfer your driver’s licence to Tasmania; put those two together and you have death tourism: four times that Ms O’Connor’s promise is broken.
Ms O’Connor – I disagree.
Mr FERGUSON – You may disagree, but the bill is yours. The bill leaves it open for doctors, number 5, to make a subjective judgment about deciding a person is eligible. The person’s medical condition or treatment or complications depend on the subjective view of the person. It could only be a matter of report from the person that the suffering is intolerable. Under this bill that is accepted, because you have based it on the person’s view. That is five times you have failed to protect the vulnerable.
Number 6, there is no requirement that the specialised doctor is to be the person’s treating doctor for any length of time or to have had any contact with the person’s usual treating doctor. I do not feel very safe right now on behalf of a vulnerable person. The promise was made that they would be protected in every provision. That is six broken promises.
Number 7, on written requests there are a range of witnessing requirements for people who cannot write.
Ms O’Connor – According to you. You have already made up your mind.
Madam SPEAKER – Order. I am not going to allow interjections. We are going to have a respectful debate.
Mr FERGUSON – There is no clear requirement for a written request to have any witness. You have to think that through and you identify another provision where you have left it wide open for two trucks to drive through.
Number 8 is worse. A person making a written request may have the request completed and signed by a family member or a non-family beneficiary who would make a financial gain as a result of the person dying. This is so serious. If that is not the open door to elder abuse, I do not know what is. Eight broken promises.
Number 9, for people who need an interpreter; I wonder if we could agree there is potential vulnerability here. It does not have any minimum standard for that interpreter. There is no requirement for the interpreter to be independent from that person’s situation. We have all seen the Swedish video of the interpreter listening to a victim of family violence, and the interpreter telling the police that everything is okay. If that is not an open door for family abuse, I do not know what is. An immoral death could follow.
I turn now to the promise made by Ms Giddings in that same newspaper edition. Ms Giddings’ promise is a telltale sign that she is not really sure. Rather than focusing on the intended benefits of the legislation, she has identified the central problem that you have to deal with when you change the laws of murder, manslaughter and assisting suicide. She is admitting implicitly that however you try, some people are vulnerable. Bandaid protections, as they have attempted, will not change the fact that they are vulnerable. They will remain vulnerable.
The question for Ms Giddings and Ms O’Connor is, is it really so that those strong safeguards, those checks and balances make the bill robust and safe? If you open up those laws, you open up a range of possibilities and ways that people lose that basic protection and can have someone else take advantage of them or make assumptions about what is best for them.
Ms Giddings’ problem is to find a work-around way to protect vulnerable people. Surely they are looking for a guarantee, not a balance. I demand a guaranteed failsafe. If these are missing from the debate, on their behalf we demand proof more than promises, more than trusting. You are asking this House to change the law. If just one Tasmanian gains medical help to needlessly kill themselves under the cover of the term ‘dying with dignity’ it is as tragic as any one of the weary souls who have ended their life in our beautiful state in the hopeless despair that life was no longer worth living, the pain inside was too great, and the hope was far too distant or had been extinguished.
If one Tasmanian has their life terminated at the hands of a doctor having felt like a burden to their children, worrying about the cost of aged care or swallowed the lie that life is only worth living in the absence of suffering, then it is just as wrong as the taking of an innocent life. Does the nice term ‘voluntary assisted dying’ satisfy any of these concerns and what is wrong here? For me, absolutely not.
Members of this parliament have already made promises about their intentions with this bill. I accept there is a range of opinion in the community, in my party, in this House. Maybe some have already reconciled themselves to the idea of sending a botched bill to an inquiry to be fixed. We have just had an inquiry by a committee of this House into end of life. It was not euthanasia, I accept that, but the Standing Committee on Community Development inquired into end of life and reported only last month. There were 26 recommendations, which have not been addressed by the Government or this House. I have views and insights into how the Government will be addressing those recommendations and today is not the time for me to represent that. Many of the problems with the current delivery of palliative health care relate to both law and medical practice – and perhaps resourcing. Rather than rubbishing the AMA for not inviting you to their briefing yesterday, which they did by email –
Ms O’Connor – When?
Mr FERGUSON – Yesterday morning at 7.30 a.m. to every one of the 25 members of this House.
Let me reflect for those who could not be there what was said to those Liberal and Labor members who did attend. First, we need solid, legally enforceable advance care planning legislation in Tasmania. It is about empowering the health consumer. Good on Ms Ogilvie, the member for Denison, for pushing that more than any. A mechanism for patients confronting end of life to take charge of and stipulate what medical interventions can and cannot occur to their bodies. Second, we need to improve palliative care because stories of people dying in intolerable pain are most likely to be people who did not receive the best level of pain management we are capable of and we have let them down. Third, doctors across Australia are asking every jurisdiction to make sure and to examine, and where required clarify, that doctors have protection where they are delivering pain management which has a double effect. Fourth, we need to ensure protection for doctors who do not provide futile treatment to patients in the fear they will be prosecuted for failing to save a life.
Have all those things happened? Were they ever pursued by previous health ministers, governments or premiers? I accept that some of these are complex matters. They require consultation, good legal advice and talking to the community.
It is very clear to me, especially in Palliative Care Week, that a thorough consideration of the Rylah inquiry’s 26 recommendations and that four basic points being called for by Australia’s doctors ought to be vigorously pursued and answers provided as to the way forward. I understand there is a move to push a bundle of issues, including potentially palliative care with euthanasia and assisted suicide, into a new inquiry. I will listen to this carefully when it is argued but I am doubtful it is really a constructive step in resolving whether this dangerous bill, this very dodgy bill – I have pointed out nine failures of a broken promise that it is safe – can be revived or repaired.
I heard Ms O’Connor’s opinion that it is a political delaying tactic but I remain concerned that it is very doubtful this bill is repairable. Even if you really believed in its objects, even if you really wanted to find a way to deliver the goal of the bill, which is to allow a person to mercifully die and choose the timing of the end of their life. I am of the view that whether you support or oppose the principle of mercy killing or doctor-assisted suicide, this bill after three attempts is incapable of meeting the guarantee made by the movers that it is a robust bill with many checks and balances to protect vulnerable people in every provision. They have failed a third time to prove it is guaranteed fail-safe, which in my mind demonstrates there is a structural problem with the intention to change the laws of murder, manslaughter and helping somebody to kill themselves.