NZ Doctor - Friday 29 January 2016
Matt Vickers, husband of Lecretia Seales, urges health professionals to make submissions to the Health Select Committee inquiry into physician-assisted dying.
Last year my wife, Lecretia Seales, took a claim to the High Court seeking the right to choose how and when she died. Her case followed similar actions in the UK, the USA, Canada, South Africa and Ireland, where patients facing terminal or severe degenerative illnesses sought more control over the ends of their lives.
Right now, across the Tasman, the parliament of Victoria in Australia is conducting an inquiry into this very issue, which reports back in May this year. And as you’re no doubt aware, an inquiry is currently under way in New Zealand. Submissions for that inquiry close next Monday, on 1 February.
Global interest in assisted dying is symptomatic of a sea change in Western medicine, a shift from doctor-knows-best, and healing at all costs, to one where a patient is in more control of their treatment and quality of life.
In his book, Being Mortal, Atul Gawande described a desired mode of clinical practice which he called interpretive: Eliciting the patient’s priorities and being a passive advisor in decision-making with the patient. Sometimes the patient's priorities might not mean more treatment. Sometimes the avoidance of suffering might be more important.
That was a high priority for my wife. With severe intracranial swelling she risked something called coning, where the mass of her brain would push down on her brain stem, causing physical pain unresponsive to palliative medicine.
But more of a concern for her was loss of autonomy and mental capacity, features that defined the life she lived and on which she placed huge value. She sought some say about whether she should have to endure the loss of those things. She wanted choices.
In 2010, Auckland GP John Pollock sought the same choice after developing metastatic melanoma, and he pleaded with the Government and with his colleagues to support a change to the law.
"The law as it stands in my view is cruel. It's outdated, it's cruel, it's unnecessary - it needs to be changed," he said. He challenged the New Zealand Medical Association for its conservative and blinkered view. The NZMA did not represent him or the colleagues he spoke to that sympathised with his plight.
A case for protecting doctors
In a way, Lecretia’s case was actually about protecting doctors. Lecretia was never at risk of prosecution, but her GP, who was willing to help her if legally allowed to, certainly was, and they would have remained at risk if they’d assisted Lecretia after the hearing concluded.
Lecretia’s desire to have a choice was for her own benefit, certainly, but her court action was for the benefit of the doctor who was willing to provide assistance, to protect that person from arrest and prosecution.
Currently the protections for doctors are less than ideal, and potentially put doctors at great risk. We know from various NZ studies that some end-of-life practices that doctors engage in flirt very close to the boundaries of the law.
Surgeons protected, why not other doctors?
The Crimes Act specifically protects doctors performing surgery from prosecutions for assault, or unsuccessful and lethal surgical procedures from prosecutions for manslaughter.
But bump up the pain relief above certain levels for a suffering patient and you are in a very grey area. New Zealand Doctor reported the results of a survey they conducted last June that suggested more than one in 10 doctors have helped a patient die despite potentially breaking the law.
Forty-five per cent of doctors surveyed said there should be more legal protections for the medical profession around end-of-life practices, with 44 per cent against.
Your legal protection, under the doctrine of the double-effect, is your intent. Right now, it's conceivable that all it would take is a grieving family member to question that intent and make a complaint to the police before you found yourself criminally investigated.
It baffles me that the NZMA and similar bodies have not advocated for any sort of legal protection or guidelines for members engaged in end-of-life practices, and that it falls to people like Lecretia, the patient, to fight these battles for them.
Many in favour of a law change
I have spoken to many doctors and nurses in the months since my wife’s death and I have been heartened by the number that both support a law change and would expect and want the same choices for themselves. If you were to listen to the various professional bodies that claim to represent those practising medicine, you wouldn’t know that there was much support among doctors and nurses at all.
Fears that the doctor-patient relationship would be damaged by allowing physician-assisted dying, or that palliative care would suffer, are not borne out by the facts.
Trust in doctors in countries such as Belgium and the Netherlands continue to score highly relative to other countries.
Overseas experience after assisted dying is made legal
Dr David Grube, who consults in Oregon where physician-assisted dying is legal, testified in Lecretia’s case that, “In no way did legalising aid in dying change the nature of the doctor-patient relationship for the worse. In fact, it probably strengthened it … A majority of doctors in Oregon now support aid in dying ...There has been no erosion of palliative care services.”
Medical associations may not represent your views
If you support assisted dying and better legal protections and guidelines for doctors, I suggest that you have a responsibility to write to the select committee about this issue, as various medical associations will be claiming to speak for you, despite clear signs their memberships are divided.
The medical profession can only benefit from stronger protections and guidelines around end-of-life practices, and being given more power to help those few patients that have a clear and consistent wish to be assisted to die.
Like abortion, no doctor would be compelled to assist if the practice became law, if it was inconsistent with their personal beliefs.
But with well-drafted assisted dying laws, doctors who chose to assist with patient consent would not risk prison and prosecution for honouring and respecting the wishes of a terminally ill patient who, in sound mind and with full knowledge of the consequences, had decided that enough is enough.