In part two of our assessment of the so-called ‘safeguards’ around assisted suicide and euthanasia laws in Australia, we look at the failure of safeguards around terminal illness and doctors suggesting assisted suicide to their patients. We look at safeguards which are not really safeguards at all and missing safeguards around psychological illness and the empty promise of a painless death.

Unsafe safeguard around terminal illness

In all Australian states, the person applying for AD must have a disease, illness or medical condition that is advanced and will cause death within six months (or 12 months for a neurodegenerative disease), is incurable, and causes suffering that cannot be relieved in a manner that the person finds tolerable.

A major flaw in this safeguard concerns the decision about the terminal nature of the condition.

• Doctors are not good at giving a prognosis of the weeks or months a person has left to live. A recent study found that only 32% of doctors were accurate.[1]

• And even though doctors may be overly optimistic in their judgement, there remains a sizeable cohort of 15% who are overly pessimistic.[2] This means that people could die who many months or years left.

A prevalent view is that it does not matter whether a person has a terminal condition, if they really want to die.  Hence, there are now calls in Australia for the terminality criterion to be waived, and in fact the new VAD law to come into effect in 2025 in the Australian Capital Territory has no terminality condition. In the various States, terminality appears to be included to bolster the number of safeguards and give the appearance of rigour.

Unsafe safeguard around doctors suggesting AD to their patients

A safeguard which seems reasonable at face value concerns who may initiate a conversation about AD. In Victoria and Western Australia, a doctor is not allowed to do this. In other states a doctor must talk about palliative care and other treatments if AD is raised. However, in these states this does not amount to much because:

• There has been widespread coverage of AD so most people are aware of it and there are other people who will raise this issue even if the doctor does not.

• This safeguard is largely meaningless because for informed consent to work a doctor is always obliged to set out alternatives. This means that a doctor – a powerful authority figure – could raise AD, whether or not the patient is thinking about this. They just have to mention other possibilities too.

Unsafe safeguards which are not really safeguards

The state of Victoria has a list of 68 distinct safeguards, aimed at creating the impression that AD is tightly controlled to protect vulnerable people. However, the list of safeguards has been strung out to include:

• • Five safeguards which are statements about transgressing other safeguards.

  • 11 safeguards which describe the function of the board.

  • A safeguard that anyone can change their mind at any time, which already exists for any other medical procedure.

  • A guarantee of conscientious objection, which is already a foundational ethical principle and adds nothing to what already exists.

  • Numerous similar safeguards which are listed separately and which could have been combined. For example, that neither mental illness for disability alone satisfy the eligibility criteria could be listed as one and not two items. 

In short,: ‘… the Victorian model has established a highly bureaucratic system where many of its ‘safeguards’ are merely checklist items of dubious quality. Indeed … most of the so-called Victorian safeguards present as merely bureaucratic requirements that will do little to protect a patient in reality.’[3]

Missing safeguard – no assessment of psychological illness

None of the AD laws in any of the Australian jurisdictions require a psychological assessment of patients about possible mental illness. Many doctors have limited ability to deal with mental illness and yet they are free to provide AD with no recourse to a specialist.  No psychological assessment is a serious omission because:

• Mental illnesses are often complex and episodic, but people can respond well to existing treatments and new ones are continually being developed.

• Many Australian recipients of AD might have had a different outcome had they been able to access quality psychological help at crucial times.

Missing safeguard – failure to ensure a painless death

Advocates of AD claim that death by AD is quick, painless and peaceful. Yet there is evidence to suggest that this is not always the case.

• Numerous different drugs, combinations, and protocols are in current use – 17 different drugs for assisted suicide, and 22 for euthanasia.[4] All of these drugs have been developed as medicines in the proper sense, but there is limited research on their efficacy to cause death.

• The drugs have been known to cause “burning, nausea, vomiting and regurgitation” as well as seizures, and sometimes patients can regain consciousness.[5]

• High doses of pentobarbital can potentially cause, rather than relieve, neuropathic pain during euthanasia. This would mean that pain-blocking during euthanasia is essentially ineffective.[6]

• Because paralytic agents are used, the patient cannot move, and hence there would be no outward indication of experiencing pain. Nevertheless, doctors carrying out euthanasia report that they have witnessed no suffering.[7]

• In a special report for the journal Anaesthesia in 2019, authors from the UK, USA, Switzerland, France and The Netherlands concluded that some AD deaths “may be inhumane.”[8]

• Time to death can also vary significantly, from 1 minute to 104 hours as reported in Oregon.[9]

• What the patient is actually experiencing during the dying process is largely unknown.

The way in which a patient dies under AD is another area in which there is a failure to protect and prioritise the wellbeing of the patient. This is perhaps unsurprising as the aim of AD is to kill the patient.