Is the right to die about rights or consequences?

Of all public policy debates, voluntary assisted dying is an ethical debate as much as any other, made clear by the recent impassioned speeches on the floor of the New South Wales parliament and the accompanying public debate.

The various arguments for and against voluntary assisted dying are motivated by a range of different reasons. For some it’s by personal experiences and time spent with dying loved ones. For others it’s by views on human dignity – reasons that are used both for and against. Many arguments are motivated instead by a deep belief in the existence of God, and what this means for how we treat others.

While there may be no “best way” to consider and assess the case for and against voluntary-assisted-dying, it seems to me that a useful approach is to focus on two central ethical issues:

• The level of rights an individual has over their body
• Whether legalised voluntary assisted dying makes a society worse-off due to the negative consequences that may ensue, such as increased self-harm in the broader population or individuals being pressured to prematurely end their lives.

The rights case for voluntary assisted dying largely centres on an individual’s self-ownership rights – what they are permitted to do with their bodies. These rights do not rest on any consequential benefits that might arise, such as a more cohesive society or a happier public, but are natural rights, without further need of justification.

If people have self-ownership rights in a strong sense – for example, they can do as they please with their bodies, free from any external government interference – then it seems the proposed NSW voluntary assisted dying bill does not go far enough.

Patients must have a condition that is advanced, progressive and will cause death within six months (or 12 months for a neurodegenerative disease). This timeframe appears unfair because it means patients with higher levels of pain who are further from the relief of death will suffer more, for longer. If anything, a person experiencing a higher level of pain has a greater need for voluntary assisted dying. If we regard incurable psychological suffering as an affliction comparable with physical suffering (a possibility it seems we do take seriously as a society), failing to provide relief for this cohort seems if not unfair, then at least inconsistent.

However, our existing social norms suggest self-ownership rights are not inviolable. We are not allowed to sell our organs, even if to save another person’s life (we can donate them). We are not allowed to sell ourselves into slavery, even if this could raise vital funds our families or children need to lead better lives.

When we impose risks that are great enough, either to ourselves or others, we are restricted from doing things as menial as leaving home after dark, as was the case in parts of south-west Sydney during the COVID-19 lockdowns. Sometimes these restrictions are publicly justified on the basis of being good for the individual (paternalistic reasons), and other times on the basis of being good for society (what economists might call “externality” reasons).

With regard to consequences, from an individual’s perspective, it seems reasonable to suggest that a condition can be so severe, so acute, that life is not worth living. Our existing medical practices align with this view. It is permissible in NSW for doctors to withdraw life-saving treatment at the request of patients and doctors are under no obligation to provide medical treatment when treatment is considered futile. While there is a difference between killing and letting die, this practice suggests it is possible for the benefits of death to outweigh the costs of life.

Therefore, from a consequentialist perspective, it seems to me the primary issue of concern is whether voluntary assisted dying makes society worse. One argument made is that voluntary assisted dying can increase suicides in the general population and pressure vulnerable people to prematurely end their lives. It seems reasonable to accept this is possible and reasonable to accept that we cannot know with full certainty how legalising voluntary assisted dying will impact NSW.

The primary issue of concern is whether voluntary assisted dying makes society worse.

However, these consequential considerations can be informed by looking at the experience of other jurisdictions. Voluntary assisted dying has been legal in the US states of Oregon, Washington and Vermont since 1997, 2009, and 2013 respectively; legal in the Netherlands and Belgium since 2002; and legal in Switzerland since 1918.

Given both sides of the debate argue the evidence is in favour of their own argument, a useful exercise is for the government to commission an independent non-partisan group of experts to analyse the existing data and academic literature, and publicly report back. This would help inform members of NSW Legislative Council when they consider amendments and vote on voluntary-assisted-dying legislation in 2022.

The non-partisan group would analyse how laws have been introduced in other jurisdictions and how these laws have changed over time. The group would ideally look for evidence of whether voluntary assisted dying has increased general population suicides or self-harm, or pressured individuals to prematurely end their lives. They might even consider whether voluntary assisted dying legalisation has numbed or lessened the community spirit, or negatively (or positively) changed the way a community treats and thinks about death.

An independent non-partisan report would provide a greater understanding of the trade-off between individual rights and social consequences. Should it be the case there is near zero risk of negative social consequences, then the case for voluntary assisted dying would seem unassailable. But if there is a risk of increased general population self-harm (for example), the decision then centres on a threshold issue of what level of risk and what level of social impact we are willing to accept.

We might be willing to accept one additional event of self-harm or we might be willing to accept one hundred. We might even be willing to accept that an individual’s rights over their bodies are so strong that patients in agonising pain have a right to voluntary assisted dying, regardless of the social consequences that might result. That is, we might conclude that individual rights trump social consequences.

Should the voluntary assisted dying bill become law, the NSW experience may differ from other jurisdictions due to a range of policy or cultural reasons, which is why it seems an oversight the proposed bill does not require more in the way of future data collection and future reviews (something that could be undertaken by the proposed Voluntary Assisted Dying Board). This amendment would aid future debates (should the bill be passed by the NSW Legislative Council) on whether voluntary assisted dying should be expanded, amended, or even repealed.

It seems to me, the proposed voluntary assisted dying bill permits too little where rights are concerned by setting too strict a timeframe on nearness to death, and permits too much where consequences are concerned by not adequately taking into account the potential for negative social consequences.

The proposed bill and the ethical debate would be improved by considering ways to treat individuals consistently and fairly, by the government commissioning an independent non-partisan group to publicly report back before the NSW Legislative Council votes on the voluntary assisted dying bill, and by amending the proposed bill to require greater data collection and mandate future reviews.

These measures would enhance our understanding of individual rights and social consequences and enable our politicians to vote with their conscience alongside the relevant facts.