HNG

Voluntary Assisted Dying Bill 2019 Third Reading

Thursday, 5 December 2019

HON NICK GOIRAN (South Metropolitan) [2.33 pm]: I rise as the lead speaker for the opposition on the third reading of the Voluntary Assisted Dying Bill 2019. At the outset, I reiterate what I said during the second reading debate, which is that the Liberal Party does not have a party position on this bill; rather, its members have a conscience vote. I echo the comments made by our leader, Hon Peter Collier, to refute any suggestion by anyone inside or outside the chamber that there has been anything other than a genuine conscience vote by Liberal Party members. That has been ruthlessly adhered to by all my colleagues, and I thank them for that. It is actually one of the elements that makes me proud to be a member of the Liberal Party.

When this bill was before us in a different form during the second reading debate, I asked members two questions. Firstly, is it possible to design and implement a safe euthanasia regime? Secondly, if the answer to that question is yes, is it appropriate to introduce euthanasia and assisted suicide prior to addressing palliative care accessibility? For reasons that are already on the public record, it is clear that my view on both those questions was a resounding no. It is not possible to design and implement a safe euthanasia regime and, in any event, it is not appropriate to introduce euthanasia and assisted suicide to Western Australia prior to addressing palliative care accessibility.

Notwithstanding the fact that that was my view when I delivered my contribution to the second reading debate on 15 October this year, a majority of members of the Legislative Council, as is their right, decided something different. For some of those members the view is, yes, it is possible to design such a scheme. For some of those members the view is that we can at least try to address palliative care concurrently with rolling out voluntary euthanasia. That was the debate that needed to be had at the second reading stage, but now we are at the third reading stage of the bill and a very different question needs to be considered: is the bill that we have before us—the latest version, 139–2, of the Voluntary Assisted Dying Bill 2019, which is not the same bill presented to us at the end of the second reading— a safe bill? That is the question that we now need to answer. If we say that the bill is safe and appropriate, it should be supported, but if it is not safe, we should vote against it. We know the government’s view, because we need only read the remarks of the Minister for Health to understand that its view was that the bill in its form then was safe. I note the comments made by the Minister for Health on 24 September when he said in the other place —

There has been much commentary about the amendments that were put forward in the consideration in detail stage of the bill and some of that debate has been characterised as a failure of democracy in this chamber. It is simply a fact that the government believes that this is very good legislation, and we respectfully disagreed with the amendments that were put forward in this chamber. That is not to criticise the intent of those who moved those amendments. I think we all respect and recognise the passion that those members felt in moving them. But, as I said, we respectfully declined the opportunity to adopt those amendments. We believe that this is very good legislation; we believe it is very safe legislation.

They are very temperate and moderate remarks that were made by the Minister for Health on 24 September 2019, yet on that same day, the chief of government, the member for Rockingham, said —

This is good legislation. It is very well drafted and carefully considered. The government has devoted a huge amount of resources to this bill. It does not require amendment.

That day, 24 September 2019, was the beginning of a dramatic shift within government from a temperate and moderate narrative about the passage of this legislation to something quite unprecedented, and several members have already remarked on that. I will simply conclude my remarks about this particular issue by noting the comments made by the Minister for Health on 28 November 2019. Something very radically different happened to the Minister for Health between his temperate and moderate remarks in September and these types of remarks made only a few weeks ago. On that day in The West Australian, he was quoted as having said —

“The fact they have sought the call, moved so many motions and asked so many often repetitive questions really just shows they’ve got contempt for the public,” Health Minister Roger Cook said. “There’s no reason they cannot do a solid piece of analysis and scrutiny of the Bill without unduly delaying it … now is the time they get on with it and finish the job.” Even at that point a couple of weeks ago, those remarks by the health minister—as factually incorrect as they were and as dramatic a shift as they were from where he was at on 17 September—are still far more moderate and temperate than anything that the Premier of Western Australia has had to say about the passage of this bill. We know that when the bill was being read for a second time, the government held the view that the legislation required no amendment. We know that because the Premier himself said, “It does not require amendment.”

Of course, what transpired after that was this unrelenting campaign by the Premier, with his intemperate remarks suggesting that anyone who wanted to move amendments or ask any questions was simply out to wreck the bill. I understand the motivation for that. I understand that the government, and senior members of government, remain very unhappy with me for the outcome of its flawed surrogacy legislation, but the fact that the government is embarrassed by that flawed legislation does not justify the Premier of Western Australia casting an aspersion on all members in this place who wanted to ask questions about this bill.

I want to acknowledge the very sensible and moderate approach taken by Hon Rick Mazza very early in this debate when he sought to refer the matter to a committee, and he was supported by a number of members, including me. If there is any disappointment on my part about the passage of this bill, it is that it did not go to that committee. The reason for that is that I have absolute confidence that had it gone to a committee, further matters would have been identified. Yesterday evening, at almost 11 o’clock, there was clearly a problem with a part of the bill that simply said that if the coordinating practitioner is going to transfer their responsibility to another doctor, he or she can do so without the patient’s consent. We had absolute silence from the champions of autonomy and choice when that flaw was identified, because, as I suspected, when it gets close to 11 o’clock at night, everyone gets too tired and so we just allow things to pass. That would not have happened if the bill had gone to a committee. Had Hon Rick Mazza’s motion been successful, I suspect there would have been a different outcome. Nevertheless, a view held by members—I remember the Leader of the House expressing this view, which I respect, even though I did not agree with her at the time—that on a matter like this it would be far better for all 35 voting members of the chamber to work together in a Committee of the Whole House. That is certainly an option and that is the option that the house ultimately took, but if the house chooses to take that approach, it means we need time.

We cannot expect the same amount of time provided to a committee of five members—the Standing Committee on Legislation, of which Hon Dr Sally Talbot is chair and I am deputy chair—to be provided to 35 members. In that case, there are 35 voices, 35 views and 35 people potentially asking questions and interrogating clauses. It naturally follows that the process is going to take some more time, and that time has been provided by this chamber. That was all that was ever asked for. Any suggestion by Hon Alannah MacTiernan that somehow the guillotine has been applied is false. No guillotine has been applied to this debate. All that has happened is that adequate time has been provided by the house in order for all clauses to be scrutinised. I have scrutinised every single clause— all 184 of them. That was all I ever asked for, and that is what has been granted. I thank the house for that appropriate courtesy, given it was a decision of the house that we would collectively, all 35 voting members on this bill, work together in committee, and that is exactly what we did.

Notwithstanding the comments of the Premier, who said that there was no need for any amendments, what is the outcome of the matter before us? What is the outcome for this bill 139–2, which we now need to determine is safe or not? The outcome is that 55 amendments have been made, which have changed the bill from 139–1 to 139–2. This house has utterly rejected the member for Rockingham’s view that there was no need for any amendments to this bill, and we are sending it back to the other place saying that we think that at least 55 amendments need to be made, with all due respect to the honourable Premier. It may interest members to know that of the 55 amendments, 25 were moved by me and 18 were moved by the government. Eighteen amendments were moved by the government to its own bill. Eighteen amendments were moved to a bill that the Premier, the member for Rockingham, said required no amendments. There were 25 amendments moved by me, 18 by the government, six by Hon Martin Aldridge, four by Hon Adele Farina, one by Hon Martin Pritchard and one by Hon Alison Xamon. That is the outcome of the decision by this house to undertake this rigorous process in the Committee of the Whole House—55 amendments.

The rhetoric of the government over the last 24 hours and, it has been drawn to my attention, some—how would we describe it; I am trying to think of a word that would be as polite as possible, and “facile” comes to mind— facile commentary by Go Gentle Australia is that apparently these 55 amendments are grammatical amendments. If that narrative by the government and these geniuses at Go Gentle Australia were true, we could understand why people would say that we did not need six weeks of the house’s time simply to address 55 grammatical errors. There would have been no need to do all of that. Let us just take a moment to check the bill before us at version 139–2, which is different from the bill at version 139–1, and the 55 amendments. Let us take a moment to check whether they are grammatical amendments. The topics that have been covered by the 55 amendments include the following. Members and people listening outside of the chamber can decide for themselves, examine their consciences and ask themselves whether these are grammatical issues. Firstly, there was the amendment to ensure that regional West Aussies are entitled to the same access to voluntary assisted dying as those in the metropolitan area. People can ask themselves whether the amendment that Hon Martin Aldridge moved was on a grammatical issue or a matter of substance. People can consider the fact that now under the bill before us a healthcare worker in Western Australia is prohibited from initiating a discussion on voluntary assisted dying with a patient. They can ask themselves whether that prohibition, which was in an amendment moved by the government and was not in the bill that the Premier said required no amendment previously, saying that a healthcare worker in Western Australia will not initiate a conversation about voluntary assisted dying, because the government moved the amendment and the house agreed to it, is a grammatical issue. There is the fact that if a doctor raises the topic of voluntary assisted dying, they must do these things. A doctor must inform the patient of the treatment options available, the likely outcomes, the palliative care options available and the likely outcomes of those palliative care treatments. If they are going to initiate the conversation, they have to do all of those things. Are they grammatical errors or matters of substance? There is the fact that a doctor cannot be a family member of the patient, a beneficiary under the will of the patient and cannot financially benefit from the death of the patient. Are they mere grammatical issues? I know that some members love polls and surveys. I suspect that if we poll and survey Western Australians, asking if they think the doctor injecting the patient with a lethal substance to end their life should be a beneficiary in the will of the patient who is about to die, we would blow that 88 per cent out of the water. Are these grammatical issues, or are they matters of substance?

Now, under the version of the bill now before the house, although not the earlier one that the Premier said required no amendment, a request has to occur during a medical consultation. Is that a mere grammatical matter, or is it a matter of substance? Let us just take a moment to consider that. Those who have followed the debate—that does not mean sitting at a computer counting how many times somebody has sought the call; I mean listening to the debate, retaining the information, comprehending and wrestling with it intellectually—will know that this issue was raised during the debate in the other place. There was a concern under the Premier’s bill, which he said was perfect, that a person can make a request to a doctor in any environment—cocktail party, end-of-year function, at the beach. Now, because of the work done by this Council, and also, I think, because of some lobbying by the Australian Medical Association, which deserves some credit here, that will now have to happen during a medical consultation. This will be a relief to medical practitioners in Western Australia, notwithstanding the fact that they do not really have a conscientious objection, for the reasons already articulated by Hon Aaron Stonehouse.

What about the fact that the patient will actually be given a copy of the very forms being distributed between the doctor and the board that will determine whether the person lives or dies? We would think that the patient should perhaps be informed about those things, because the Premier of Western Australia did not think so. He said there was no need for an amendment. I would have thought that if we are really passionate about a patient-centric model we would ensure that the patient had the information. What about the enhanced accountability when interpreters are used, or when patients have been referred because the doctor is not sufficiently skilled to make the assessment? What about the record-keeping of complications when the doctor administers the poison? What about the enhanced responsibility for those signing documents on behalf of the patient? This patient is about to die—they are making a decision to effectively sign their own death warrant—but they cannot sign, so somebody else has to sign for them. Should there be some accountability around a person who is signing those particular forms? The Premier said no, and we as a Council said yes. That was one of our 55 amendments.

What about mandating that the patient be informed of the risks of self-administration? I am going to get back to self-administration, because if there is a part of the bill before us at 139–2 that continues to distress me, it is about self-administration. Nevertheless, because of the work done by this chamber we have now mandated that the patient must be informed of the risks of self-administration—something that the Premier said was unnecessary. What about the privacy protections for doctors formally involved in a case before the tribunal? In the Premier’s version of the bill, practitioners who might have been involved in the care of the patient were not going to be provided with those protections, but because of an amendment that I moved, they will now be provided with the protections that other practitioners would have received.

The last point I make about the 55 alleged grammatical amendments is that we have agreed to ensure that a doctor in Western Australia cannot abdicate their duties by merely claiming that they are acting in good faith. They are now going to have to do more than that. Good faith is not good enough. The doctor will need to demonstrate good faith, and that they were acting with reasonable care and skill. With all those remarks, and the breadth of those amendments, I ask those geniuses in government responsible for perpetuating a narrative that all members have done over the past few weeks is pass grammatical errors, to just pause for a moment and reflect on the seriousness of the matter that we are dealing with. By all means, if they have a view that voluntary assisted dying should be provided to Western Australians, they are entitled to hold that view, as I think those of us who think that it should not be provided are also entitled to hold that view. However they really should be held to account if they are trying to mislead the Western Australian public and tell them that 55 grammatical errors have been passed by the Legislative Council, when we consider the magnitude of that list. Because those 55 amendments have been passed by this house, I am proud of the work that the house has done collectively.

There are nevertheless reasons why I still will not support the Voluntary Assisted Dying Bill 2019 in its current version, 139–2. There are a multitude of reasons, but I will limit my contribution just to these few. In the bill that is before us there is no requirement for a specialist to be involved. I find that reprehensible. If a Western Australian with a terminal illness wants to access their superannuation early—this is a matter of money—because they have been diagnosed with a terminal illness, they need to have a specialist, but if they want to make a decision to end their life, they do not need to have a specialist under Western Australia’s voluntary assisted dying regime. I understand the comments made, particularly by some regional members, about why they were concerned about that. They were concerned that it would provide a form of blockage to access for people in regional Western Australia. I respect their concern and their right to articulate that view, but I simply indicate that, as Hon Colin Tincknell said at one point during the debate, if the government has decided to put this before the people of Western Australia, it has the responsibility to resource it. It is not satisfactory lawmaking to simply say that we do not have confidence that the government is going to be able to provide specialists in regional Western Australia, so we will then lower the standard and just hope for the best, as if we were totally ignorant of the lessons that have been learnt from the few jurisdictions that have gone down this path. I think, originally, Hon Martin Pritchard put an amendment on the supplementary notice paper looking to involve a specialist. It was picked up by Hon Colin Tincknell and Hon Charles Smith. I thank those members for pursuing that issue. I am sad that it has not been agreed to and is not in the bill before us. A massive safeguard has been lost. This provision exists in the Victorian legislation, and we are saying no. That reason alone makes the Western Australian legislation more dangerous than the Victorian legislation.

I note that Hon Charles Smith pursued another safeguard, and I also pursued it, albeit with a different mechanism, which was to involve experts in decision-making capacity. That has been rejected. That safeguard was in place in the Northern Territory’s legislation. We know that there were wrongful deaths in the Northern Territory, notwithstanding its safeguards, but we have said that in Western Australia, despite our knowledge of that, we will lower the bar. We will not involve experts in decision-making capacity. We will ignore the evidence provided by the Chief Psychiatrist to the Joint Select Committee on End of Life Choices, and the evidence given by the Chief Psychiatrist to the government’s special adviser on this bill, and we will proceed anyway, without experts in decision-making capacity being involved.

The saddest time for me during the debate was when we considered the amendment moved by Hon Rick Mazza for supervision of self-administration. I could not believe it on Friday and I am still trying to reconcile how we have got to this point in Western Australia. Once we pass this bill, we will send it to the other place for members to consider the 55 amendments, which will horrify them because they did not think there was a need for any amendments, let alone 55 grammatical ones. I am horrified that what we will send them will not include the amendment moved by Hon Rick Mazza that simply sought to provide that if a Western Australian is provided with access to lethal medication, we make sure that somebody is there before they take it. All he wanted was for there to be somebody present to ensure that the person was not alone. Why would the honourable member be motivated to do that? It could only be out of a big-hearted sense of compassion and the knowledge that complications could arise.

I said this last Friday, but I never expected the response to that concern raised by the member, which I share and support. I never expected the response to be, “Well, the patient’s been warned. They’ve been told of the risks, and if they still want to go ahead with self-administration, well, they’ve been warned.” I really struggle with that. I struggle with the idea that we know that there will be complications. Somebody could regurgitate the substance; they could choke or asphyxiate. All those things have happened in other jurisdictions, but we say, “Well, they’ve been warned.” I am sad about certain elements of the bill, but I am distressed about this particular issue. I actually think it is reprehensible. It is reckless lawmaking and it is one of the reasons why I will be voting no. Even if members hold the view that the patient has been warned and if they want to choke or asphyxiate and suffer those complications, that is up to them, surely as lawmakers we have a responsibility to people other than the patient, because this substance is going to be in someone’s home. Who is to say that someone else will not access it? That would not happen if the patient chose practitioner administration because the practitioner would have the substance right up until the final moment of the patient’s life. But we are saying, “No, leave it. Let it go out, unsecured, into the community, and if there are complications for the patient, well, they’ve been warned.” I am troubled by that.

The part that got me the most when we were debating Hon Rick Mazza’s motion for supervision was when I drew to members’ attention, “Look, you can have an argument about complications: ‘You’ve been warned, and so on and so forth’, but how much do we value decision-making capacity?” An entire part of the bill is devoted to decision-making capacity; we said that it was very important. The minister repeatedly told us that it is fundamental to, and at the heart of, the whole bill; that it is about choice and autonomy, and that the person has to make that choice, yet we are going to allow the person to take home the—in the words of the Attorney General—potion, when we do not even know whether they will have decision-making capacity when they take the substance. We will not know that. We will know if it is administered by a practitioner, because the practitioner has a lawful duty to ensure that the person has decision-making capacity, but we will not know that in instances of self-administration. I respect their views of those members who are supportive of voluntary assisted dying and have been passionate about it for a long time, but at the conclusion of this debate, I ask them to think about the self-administration process, because the amendment moved by Hon Rick Mazza was outstanding, and I remain sad and distressed that it was not supported.

Unlike the Victorian and other schemes, no specialist will be involved, and we are going to allow unsupervised use of the lethal medication for self-administration. They are serious flaws in this legislation and the scheme, but to top it all off, the icing on this fatal cake is that we have mandated that in Western Australia, practitioners will be required to falsify the death certificate for these deaths. In some respects, a death certificate is just a piece of paper and what is written on it will not save the life of the dead person, unlike preventing unsupervised access to self-administered lethal drugs or involving a specialist to make sure that the person actually has the terminal illness and will die in the time the first doctor, who may not be experienced with the condition, thinks they will. Those would have saved lives. I acknowledge that preventing the mandatory, statutory falsification of death certificates will not save lives. It is not in the same league as the amendment moved by Hon Rick Mazza and of those who moved amendments about specialists, but I cannot believe that we are going to send a bill to the other place that mandates that under no circumstances should medical practitioners write “voluntary assisted dying” on the death certificate, on pain and in fear of being in breach of the law. I would be fascinated if members who love polls would poll their community on that. They should poll their electorate and see whether it thinks voluntary assisted dying should be on the death certificate, but I know they will not do that.

Yesterday, a majority could not agree that we should ensure that medical practitioners be trained in how to identify undue interference. We could not agree to that. That was notwithstanding that under clause 100 I specifically asked the government whether doctors would need to be able to identify undue influence so that they could report it to the police or the CEO for investigation. I was told yes, and said that I would pick it up later in the debate, which I did. I moved an amendment and the majority of members said no. It is, at the very least, if I can use the most charitable word possible, curious lawmaking.

I want to make a last point about the elements of the bill that are not before us that I think would make it a far better and safer bill if included before it went to the place. Apart from the elements I have just spoken of, I raise something that is not a safeguard, but I think it is a statement from this place—and I do not think it is comfortable for members. When Hon Martin Aldridge moved an amendment saying, in effect, that regional Western Australians should have equal access to voluntary assisted dying as those in the metropolitan area, I suggested to members that we should make sure that it is not just voluntary assisted dying that they should have equal access to—it should also be palliative care. That amendment was lost by the barest of margins. It was ironic. I am going to quote from the uncorrected proof of Hansard from 26 November 2019, but I have had the opportunity to verify the corrected proof and it is in identical terms.

Hon Stephen Dawson—who has done a sterling job in his duties in the chamber, as many members have quite rightly remarked, and as I also acknowledge—said this on 26 November 2019 —

Proposed new clause 16(3)(d) is not consistent with the intent of the new principle in clause 4(1)(ha) regarding regional areas. That principle is worth repeating for the benefit of honourable members, and I quote — a person who is a regional resident is entitled to the same level of access to voluntary assisted dying and palliative care as a person who lives in the metropolitan region.

If only that was what the bill actually says. That is exactly what I wanted it to say, and that is what a significant number of members wanted it to say, but that is not what the bill before us says. The bill makes no mention of equal access to palliative care. We have sent the wrong message to the community. We have sent the message to the community that we want people in regional Western Australia to have equal access to voluntary assisted dying but, when it comes to palliative care, the record reflects that the majority of members said no. I think that is uncomfortable, at the very least. I do not think that is the heart and the intent of members. I am confident that the majority of members do not actually think that, but that is what the record reflects, and that is most unfortunate.

Before I move to my conclusion, I want to make some remarks about something that I think is not understood in the Western Australian community—that is, irrespective of the passage of this bill to the other place and regardless of whether it agrees with all, or none, of our 55 amendments, nothing will happen for at least 18 months. Western Australians deserve an explanation about why nothing will happen for at least 18 months. They will have heard the rhetoric from the Premier, and they will say, quite understandably, “We thought this was all going to be ready for Christmas.” Why will it take at least 18 months? There are a few reasons for that. First, we know as a result of some excellent interrogation by Hon Martin Aldridge that there is an issue with the intersection of commonwealth law and the use of telehealth and a carriage service. It will take time for the government to sort that out with the commonwealth. The Joint Select Committee on End of Life Choices was asked by this house, as a term of reference, to look into the intersection with federal law, and, unfortunately, it did nothing. It would be fascinating if those minutes were released. The government had a backstop in the form of the ministerial expert panel. It also did nothing about this issue. It is now left to the government to sort this out over the next 18 months. Therefore, the Premier has some bad news for those who were hoping this would be ready for Christmas. Apparently, it is my fault. The reality is that the Premier and his government need another 18 months to get this process right. One of the reasons for this delay is the government does not know what substance will be used. It knows that it will be a schedule 4 or schedule 8 drug, but it does not know what the combination will be, and it still has to work out the complications. The government is also not sure how the substance will be provided in regional Western Australia. It has given a commitment that care navigators—that is the phrase that has been used—will be used in this process. These care navigators will really be unregulated steerers whose job will be to steer a regional West Aussie down a particular path, which is voluntary assisted dying. Another thing that the government needs to sort out over the next 18 months, amongst many things, is the cost. During interrogation of the clauses, the government conceded that, in some cases, a patient would have to make a gap payment. The government cannot tell us how much that will be, because it has not consulted with private health insurers or, indeed, Medicare.

I conclude this journey. It has been more than a two-year journey for me, amongst others who served on the Joint Select Committee on End of Life Choices, which I do not regret serving on for a moment. I knew we would be up against it the moment the motion was moved, but I indicated yesterday that my philosophy is never vacate the space. Secondly, if nothing else, at least this has ensured a new level of commitment to palliative care that did not exist before.

I conclude with these statements, which are identical to my final concluding remarks in my contribution to the second reading debate about why I cannot support the Voluntary Assisted Dying Bill 2019. I could not support 139–1 and I cannot support 139–2 for all the reasons I have said, including these in summary. The desire of a significant proportion of confident people for ready access to lethal injections ought never override the rights of the quiet vulnerable to safety and protection. Secondly, if we are intellectually honest and reason through the theory of a euthanasia regime, we should conclude that it is inherently unsafe. The insufficiency of the criminal justice safeguards informs us of this; the prevalence of medical negligence informs us of this; the ease of doctor shopping informs us of this; the reality of doctor bias informs us of this; and the evidence of elder abuse informs us of this. When we engage with the lived experience of the very few jurisdictions that have legalised euthanasia or assisted suicide, we know that the theory of an inherently unsafe regime has resulted in casualties of wrongful deaths. Ultimately, there is another way; there is a better way. There is a safe approach to end-of-life choices. However, it will require all of us to persistently insist that quality palliative care is made available to every Western Australian. When I say quality palliative care, I mean expertly practised specialist palliative care, not palliative care by a doctor who has an interest in palliative care. That is not what we are talking about here. I am reminded of the evidence given by Professor Doug Bridge when he came to the joint select committee. He said that he went into a hospital room one day and saw this patient effectively inflated, blown up, and he was horrified. He said, “What are you people doing?” He went in and rectified the situation. If that was our experience of palliative care, of course we would be horrified. We would say, “If this is the best that palliative care can provide for us, I want the lethal injection as well.” However, that is not the best that can be provided. What can be provided is expertly practised specialist palliative care in our state. It is a great privilege for us to be living in a First World country where that is available.

As legislators, until we have exhausted ourselves in fulfilling this duty to make quality palliative care available to every Western Australian, we should not be contemplating a euthanasia regime, let alone this bill, which is, verifiably, more dangerous than the Victorian legislation and the now inoperative Northern Territory legislation.

I am opposing this bill because the risks in legalising assisted suicide are simply too great, the least of which are that the consequences are final.