Why making voluntary assisted dying legal best respects both sides of this debate

After almost three decades of refusing to agree to it, Australian parliaments are slowly beginning to warm to the idea of voluntary assisted dying (VAD). Legislation has already been passed in Victoria and a number of people have now been able to end their lives under the legislation.

Legislation with similar requirements has also now passed in Western Australia, and is due to come into effect in 2021. Other States and Territories such as Queensland have held inquiries into the issue with parliamentary reports recommending legalisation. New Zealand will have a referendum on it later this year.

However, progress remains slow. The Queensland government has just responded to the recommendation of its parliamentary inquiry on Thursday. The Premier pointed out that VAD is "a deeply personal issue in which competing views of Queenslanders and experts have to be carefully balanced". For this reason she has delayed introduction of a bill, and referred the issue to the Queensland Law Reform Commission for further investigation.

The Premier is right that VAD is a deeply personal issue about which competing views of Queenslanders need to be carefully balanced. But we should keep the views of Queenslanders with the views of experts separate, as these views are about different things.

The views of the experts are largely about empirical, rather than personal, matters. An abiding feature of the VAD debate since the first bill was introduced in 1993 is the tendency view empirical matters as equivalent to personal ones. This has significantly impeded progress, and continues to do so in the UK parliaments and courts.

We need to carefully distinguish personal matters from empirical matters. So-called experts are no more qualified than you are or I am to talk about personal matters. By their very nature, these matters are to do with our own personal conscience, values and beliefs.

But experts are qualified to talk about the empirical matters, such as the possible impact of making VAD legal on 'the lives of our elderly and the most vulnerable people'. Both personal matters and empirical matters have a role to play in the VAD debate.

Personal Matters

There are some ethical issues about which people can reasonably have different views on grounds of personal conscience.

You may practice a religion, and feel that allowing another human being to take someone's life is against your religion's ethical code. Or you might feel that there's a danger that we are disrespecting the miracle of life if we allow VAD. In parliamentary debates, this kind of view is sometimes expressed by MPs. In one debate, an MP said: "it is my understanding that God has a no kill policy".

I may not share that view. Not only may I not believe in any religion, but even if I do, I may think that my religion's ethical code should make an exception for people suffering unbearably. In our democratic society, we have come to tolerate people's right to hold and practice certain beliefs that are not shared by everyone – provided that the practice of such beliefs does not unduly harm others.

We might call such beliefs reasonable in a wide sense. Although we may personally dismiss such beliefs as false or misguided (and so unreasonable in a narrow sense), they are views about which we can rationally have a debate.

By contrast, we could not rationally have a debate about whether people from certain backgrounds should be excluded from medical treatment. Fully informed parties in ideal conversation conditions would quickly see that such a proposal could not be sustained.

It is because some issues are genuinely contestable – are issues about which there can reasonably be a range of different views – that our democratic society has recognised the right of each and every one of us to make up our own minds about them, and act accordingly in our own lives. This is why we hear a lot about the importance of autonomy, of my right to decide for myself what beliefs I accept about, eg, how I should die.

It follows from this that, if the VAD debate could be decided on matters of personal conscience alone, the default position should be to make VAD legal.

This point has not been acknowledged by parliamentarians, including the
Queensland Premier today. It has also been ignored by case law. It is always assumed that there are just two opposing positions to this debate: one in favour of a continued prohibition of VAD and the other in favour of making VAD legal. It has been said repeatedly that both prohibition of VAD and making VAD legal holds one side of the debate hostage to the other.

But 'making VAD legal' here is ambiguous and can be done in two ways. Understanding this is the key to resolving the VAD debate.

To see the ambiguity, it is essential to remember that there are three types of legislation, not two:

1. Prohibiting legislation, legislation that prohibits us from doing certain things, such as speeding or stealing.

2. Permissive legislation, legislation that allows us to do certain things provided certain requirements are met, such as have IVF treatment.

3. Mandating legislation: legislation that mandates that people do certain things, such as wear a seatbelt.

We could 'make VAD legal' by choosing either type 2 or type 3 legislation. But no one is suggesting type 3 for VAD. It is actually only the prohibiting or mandating legislation that holds everyone hostage to one view. Type 2 permissive legislation does not, since it allows each of us to make up our own minds about whether we would want to access VAD ourselves in our own lives.

If we legalise VAD permissively (opt for type 2 legislation), nobody is forced to have it but, equally, nobody is forced not to have it. Whether we do or don't is up to each of us.

This is why the Premier is wrong to delay the introduction of VAD laws in Queensland on the basis that it is a complex personal matter that needs further investigation. Permissive legislation best respects the views of both sides in this debate. If the VAD debate came down to personal matters alone, we should make it legal straightaway.

Empirical matters

Of course, the VAD debate itself is not, and cannot be, decided on personal conscience alone: the State has an interest in protecting vulnerable people from accessing VAD when they shouldn't (they are coerced, for example).

However, whether vulnerable people would access VAD by coercion is not a personal conscience matter. It is an empirical one. It is to do with whether we can provide adequate safeguards.

It is a category mistake to regard whether safeguards can be made adequate as a matter of personal conscience.

Given the default position is that VAD should be legal, parliaments and case law bear the responsibility of thoroughly investigating these empirical questions. When the Queensland Law Reform Commission examines VAD, it should be these empirical questions that take centre stage.