ISLANDERS who give approval to their own assisted death but lose capacity before it takes place would be prevented from proceeding, under an amendment proposed by an Assistant Health Minister.
Deputy Barbara Ward is seeking to remove what is known as the “waiver of requirement for future capacity” from the Island’s draft assisted-dying legislation. This provision would allow an assisted death to proceed even if a patient became unconscious or lost capacity between approval and the final act.
But, according to Deputy Ward, this waiver turns assisted dying into “an administering practice of non-voluntary euthanasia”.
“The inclusion of the waiver changes the draft law from an assisted dying action to an administering practice of non-voluntary euthanasia,” she said, adding that such acts are currently regarded in law as “either manslaughter or murder”.
Under the amendment, assisted dying would only be permitted if the individual had mental capacity and was able to give clear, voluntary consent at the point the drugs were self-administered or administered by a practitioner. Any loss of capacity would automatically halt the process.
Deputy Ward described the waiver as “an advance direction to abandon the right to having capacity and to consent to the assisted death”, calling it “remarkable” and potentially in breach of existing capacity and self-determination law.
She also raised safeguarding concerns, questioning whether sufficient protections could be maintained once a patient is no longer able to confirm their wishes.
“The proposal for a waiver of future capacity directly conflicts with the safeguards claimed in the draft law,” said Deputy Ward, warning of “a recipe for bias to seep in, and for discrimination, possible negligence, coercion and even criminality to go unchecked”.
She wrote: “It is my belief that to administer terminal drugs to an unconscious patient is NOT an assisted death but an act of euthanasia or a form of manslaughter.
“My view is that the patient has not been afforded their right to ‘change their mind’.”
She also pointed to evidence cited within the law’s own report, noting that in Western Australia “around 28% of people who were approved for an assisted death did not go on to have an assisted death”.
“This is a high percentage of patients and should not be passed over or ignored,” she said.
Deputy Ward argued that a waiver of capacity and consent goes against legal precedents that state that assisted dying is not a medical treatment to which patients can claim to be entitled.
She concluded: “The numerous questions raised in this amendment demonstrate the unsatisfactory nature of including a waiver in the draft law and highlight that this should be removed.
“People who wish to have an assisted death via self-administration need to be supported. But there should be no intervention where a patient becomes unconscious or has lost capacity and is unable to say yay or nay.
“They need to be cared for compassionately, and with kindness, through a palliative approach receiving required medication to ensure no suffering as they near the end of their journey.”
The draft assisted-dying law is due to be debated in the States Assembly next week, but could be pushed back until late February after a Scrutiny panel requested more time to review the proposed legislation.
