22 October 2017 the Principal Research Officer Select Committee

EOLC Sub 680 Rec'd 22/10/2017

22 October 2017

The Principal Research Officer Select Committee on End of Life Choices Legislative Assembly Parliament House PERTH WA 6000 Email [email protected]

Dear Principal Research Officer RE WHY EUTHANASIA HAS NO PLACE IN AUSTRALIA WHY EUTHANASIA SUPPORTERS MUST FALL ON THEIR OWN SWORD WHY EUTHANASIA IN ANY OF ITS FORMS SHOULD NOT BE PERMITTED WHY EUTHANASIA MUST NOT SEE THE SUNSET ON THIS, THE LONGEST DAY

My name is David Foletta.

I am a solicitor admitted to practice in the State of New South Wales.

MY SUBMISSIONS

It is my pleasure to make submissions to the Inquiry into the need for laws in Western Australia to allow citizens to make informed decisions regarding their own end of life choices (Inquiry).

MY POSITION ON EUTHANASIA

I oppose all forms of euthanasia.

EVANGELICALISM NOT THE ONLY REASON FOR OPPOSITION

I hold to a Christian ethic, however, as the committee will see, I hold opposition for reasons that people who have a range of responses to questions of theology could also agree with.

CONSENT TO PUBLICATION

I give my consent to the public disclosure of this letter, the email serving this letter and all attachments to this letter.

In my respectful submission, I actually consider that the public disclosure of the contents of my submissions is vital to the safeguarding of people in Western Australia and by consequence, all people around Australia.

IN PERSON ATTENDANCE AT PUBLIC HEARING

I am willing to travel to Western Australia to attend a public hearing in person.

CRITICISMS OF VICTORIAN INQUIRY

In 2015 and 2016, the State of Victoria held a similar inquiry (Victorian Inquiry) to this Inquiry. There is a great deal of parity between the Terms of Reference of the Victorian Inquiry and this Inquiry. The Terms of Reference to the Victorian Inquiry are included in my submissions.

As you and anyone who reads my submissions will quickly, and alarmingly, see that the Victorian Inquiry’s Final Report was:

1. Split 6:2 on the question of implementing some sort of physician assisted dying, with Mrs Inga Peulich MLC – Victoria and Mr Daniel Mulino MLC – Victoria who are included on this email each submitting dissenting minority reports on this issue;

2. That the majority report on the question of “Recommendation 49” not being worth the paper it is written on for the following reasons:

(a) They failed to comply with their terms of reference because they did not consider euthanasia in Belgium – where euthanasia is at its worst

(b) They did not give reasons for their conclusions;

(c) They did not give reasons for why evidence that opposes the eventual outcome was not preferred over the purported “evidence” that supported the implementation of euthanasia into Victoria; and

(d) The conclusion reached actually go contrary to the evidence they did detail. For example, they assert that low punishments in the past are a sign of community acceptance, yet strong penalties are claimed to be a safeguard.

3. The reliance on the Oregon model as being a system of euthanasia acting perfectly is a falsehood. There are non-compliances and unexplained deaths, which are masked. Doctors do not even believe the claims of lack of complications, when something appears to be too good to be true, it probably is a useful phrase/ cliché to use.

4. Mr Daniel Mulio MLC said that the majority “side stepped” the issue of Belgium and the negative data on abuse and non compliances;

5. Mrs Inga Peulich MLC made plain that the outcome of the Victorian Inquiry was known before the Victorian Inquiry was commenced;

6. The majority of the Victorian Inquiry based their decision on “values” which was not a question put to the general public or people’s submission;

7. The majority of the Victorian Inquiry based their definition of “dignity” on the concept of “choice” not pain like so many others do, and this being a topical word for so many other issues it

David R.A. Foletta BCME LLB GDLP JP Letter to WA Inquiry 2

appears to be a convenient word to grant rights on other controversial issues, such as same sex marriage and abortion. Hence, more acting under policy not examining the evidence and making a decision on the evidence in relation to the issue of euthanasia; and

8. The strength of my criticisms are, in my respectful submissions, given more substance when we see the Premier of Victoria, the Honourable Mr Daniel Andrews give a speech to the Parliament of Victoria that is more emotion than substance, and where he actively attempted to avoid legal technicalities being considered in making a decision on this issue. One of those legal technicalities being the need to look at all the evidence.

In my attached submissions, I have dealt with the sixty eight (68) alleged safeguards that the Ministerial Advisory Panel (MAP) to the Victorian Health Minister, the Honourable Jill Hennessy, has developed. Indeed, these are themselves only mere ideals, and they even assert a need for further research and development. This is very disappointing given that much ado has been made by the Majority of the Committee who heard and ran the Victorian Inquiry that the safeguards would be “robust” – yet they, like the MAP do not have knowledge of what those “robust” safeguards will be or how they will work.

The Premier of Victoria and Jill Hennessy have done a lot of salespersonship on the merits of the Victorian Inquiry and validated the legislation by asserting that a thorough inquiry was done. This mere act of holding an inquiry does not validate the outcome no matter the outcome, and, even more so when the inquiry was not comprehensive at best and compromised at worst. I believe that compromised is the better of the two descriptions.

EXPERT OPINION

In my letter to the Honourable Mr Daniel Andrews, Premier, I have set out the opinion of people who are much more learned than what I am. I have included comments from a former State Premiers, a State Governor and a former Prime Minister of England.

I note that two former Prime Ministers Mr John Howard and Mr Paul Keating have come out recently to oppose euthanasia.

MORE RESEARCH TO BE DONE

I still have much more research to do. I am attempting to procure as many of the journal articles and evidence that the majority of the Committee said that they looked at but did not discuss in their Final Report. This is important for me and for all people to know about.

I draw a negative inference the Majority of the Committee’s decision to not include or discuss articles which they said they read. That inference, and one I am entitled to draw, is that the evidence went against their desired outcome so it was excluded.

I regret that the rules of the Parliament of Victoria appear to be such that it is easier to get a politician into trouble for taking $5,000.00 which they should not have than what it is for writing a self-serving report that will take 5000 peoples’ lives.

David R.A. Foletta BCME LLB GDLP JP Letter to WA Inquiry 3

SINK THE TITANIC, SINK THE BISMARK AND SINK THE GENERAL BELGRANO

The MAP made Recommendation 1 which expressly stated that the option of euthanasia must be balanced with the risk of euthanasia. In my submission, keeping these two issues in balance, means outlawing euthanasia. The reason for this is that actual number of people who would benefit from euthanasia is so small relative to the number of people who can be abused. Ironically, even the health minister Jill Hennessy states that numbers of people who would be eligible is relatively small. This argument is fully developed in my letter to the Premier. In my submission, this one Recommendation of the MAP sinks the whole cause of implementing euthanasia.

FALSE CLAIMS AND OVERSTATING THE LEVELS OF COMMUNITY SUPPORT

The committee hearing this Inquiry be told, I have no doubt, a lot about community support and that community attitudes are swaying now a days in favour of assisted dying/ euthanasia being acceptable. I submit that the committee hearing this Inquiry should be on guard against such false rhetoric. This is for the following reasons:

1. The most commonly relied upon opinion polls are sponsored by pro euthanasia organisations;

2. The questions being put are designed for the desired outcome;

3. The lobbying is often done to cause politicians concern about being voted out of office if they do not agree with the voters in their electorate. I have noticed this being done in Victoria in seats where the member is still undecided. This is tantamount to saying “if you do not agree to killing people, you will find yourself out of parliament”; and

http://www.abc.net.au/news/2017-10-10/voters-back-euthanasia-laws-in-victorian-seats- polling-shows/9033666

Polling in three country Victorian seats indicates more than four in five people support proposed voluntary euthanasia laws, but the local Coalition MPs remain undecided ahead of next week's parliamentary debate.

The poll, conducted by OmniPoll for Andrew Denton's pro-euthanasia group Go Gentle Australia, asked residents in the Ovens Valley, Euroa and Eildon electorates: "If a terminally ill patient asks a doctor for a lethal dose, should a doctor be allowed to provide a lethal dose, or not?"

A thousand people were surveyed in each of the three Coalition-held seats, where the local members are all undecided on the bill to legalise a medically assisted dying scheme.

4. It is clear, and even pro euthanasia enthusiasts admit that people who support euthanasia are more likely to think that this is an issue to be motivated for. These people even form and join organisations to foster the killing of people, so, for the sake of their organisation, they seek to lobby and will vote and make written submissions whenever they can. That is why you will see, as was seen in Victoria, a greater number of submissions in favour than against.

David R.A. Foletta BCME LLB GDLP JP Letter to WA Inquiry 4

As for me, I only became involved in this debate by watching a replay of Andrew Denton’s speech to the National Press Club. If I had not seen that speech, I would not have known this was an issue in Australia. This is why my first submissions on this issue was actually to the MAP not to the committee of who ran the Victorian Inquiry. The history of my involvement in this debate is set out in my letter to the Premier of Victoria which is attached.

DOCUMENTS ATTACHED

In addition to this letter, I attach the following documents:

1. My letter to the Honourable Mr Daniel Andrews, Premier of Victoria dated 8 October 2017;

2. The undated affidavit of Mr Etienne Montero, Professor of Law, University of Namur, Belgium; and

3. The Memorandum of Advice I have received from Mr Ian Davidson, Senior Counsel in the State of New South Wales.

I have included the affidavit of Mr Etienne Montero, which I obtained from a person who made a submission to the Victorian Inquiry by skype, after the committee members returned from Europe and North America not having visited Belgium, because he succinctly sets out issues and evidence about which the majority of the committee who ran the Victorian Inquiry did not want to hear. I obtained this by sending an email asking for such evidence.

I have obtained the opinion of Mr Ian Davidson of Senior Counsel in the specific issue of the use, misuse, of evidence by the majority of the committee. As is also my concern, the person on the street would consider that the Victorian Inquiry did not consider the evidence available to it.

Finally, I ask, why have so many inquires in the past been done and the answer being negative yet in Victoria they answer in the positive. The answer is that there was a unique difference in Victoria, in that there was a combined political agenda to make lawful, euthanasia. I have exchanged email with a member of the Greens in Victorian Parliament after I emailed my letter of 8 October 2017 to the Premier to him, and he stated that the Greens have been working at this for a decade. That immediately casts a shadow over the whole of Nina Springle’s conduct on the committee and the Greens as a whole – deciding this issue on policy and political achievement for their party alone, not considering the dangers and potential negative impact on society.

EMOTIONAL SUFFERING

It is likely that the committee holding this Inquiry will hear lot of emotional testimony, which will not be surprising as Dying with Dignity produce materials on how to write to members of parliament and urge the telling of testimony and this is what the Premier Daniel Andrews has done in the Parliament of Victoria. The reliance on emotion is clearly a recipe for slippery slope. The reason for this is “how long is a piece of string”, similarly, based on emotional experience of suffering of the person who dies and the people who watch that person die, there is almost no limit to what killing can be done on that justification. The only way to stop people using more and more emotional stories in the future to change 12 months before death to “intolerable suffering” is to say NO to all euthanasia. If euthanasia in any form is permitted, then, people who are hostile to the person who wants to die, may well feel the need to turn up the heat on the person who is to die, and if there is no requirement for terminal illness, that person will

David R.A. Foletta BCME LLB GDLP JP Letter to WA Inquiry 5

elect to die and be done with life. That possibility will be permitted when emotional arguments are used over the evidence overseas of non-compliance, abuse, changes to the law, relaxing of safeguards and people being horrible to other people.

ENFORCEMENT OF SAFEGUARDS

I hold the view that the enforcement of safeguards will be almost impossible. This is for several reasons:

1. Mates do not dob in mates;

2. The cost of checking everything is high and will not be done;

3. The Department of Prosecutions will only ever prosecute a winnable case. If there is a chance of not winning, the doctor, family or whoever else is responsible for the death will get away with murder; and

4. How a court interprets legislation when a clever senior counsel challenges the legislation which politicians have agreed amongst themselves to write, may well give different results to that intended. Oops, a “loophole”, that is allowing murder. I should stress that the Supreme Court of Western Australia, like any court, is not a supervisor over parties and should not be abused to fix or as a back stop for unacceptable legislation.

Thank you for considering my submissions.

Kindest Regards

David R.A. Foletta BCME LLB GDLP Solicitor High Court of Australia Solicitor Supreme Court of NSW Justice of the Peace in and for the State of NSW

CC Hon. Robin Howard Chapple MLC – Western Australia Hon. Nicolas (Nick) Pierre Goiran MLC Western Australia Hon. Colin James Holt MLC Western Australia Hon. Dr Sally Elizabeth Talbot MLC Western Australia Ms Amber-Jade Sanderson MLA Western Australia Mr Reece Raymond Whitby MLA Western Australia Mr John Edwin McGrath MLA Western Australia Mr Simon Alexander Millman MLA Western Australia Mrs Inga Peulich MLC – Victoria Mr Daniel Mulino MLC – Victoria

David R.A. Foletta BCME LLB GDLP JP Letter to WA Inquiry 6

Victoria Inquiry into End of Life Choices — Final Report

Memorandum of Advice of Ian E. Davidson SC

David Richard Alfred Foletta Solicitor

Liability limited by a scheme approved under Professional Standards Legislation Victoria Inquiry into End of Life Choices — Final Report

Memorandum of Advice

Introduction

1 My instructing solicitor, David Richard Alfred Foletta (Mr Foletta) is acting in his personal capacity.

2. Mr Foletta works as a solicitor however he has retained me on his own personal initiative and not on behalf of any other person, organisation or lobby group.

3. Mr Foletta has expressly stated to me that he is opposed to all forms of euthanasia. I am instructed that Mr Foletta has taken active steps in the States of New South Wales and Victoria to oppose euthanasia. These steps are summarised somewhat more fully in the Background Facts below.

4. Mr Foletta has informed me that he once opposed me in a real property dispute matter in the New South Wales Supreme Court in 2009 or 2010 when I was instructed by another firm of solicitors to act against his client. Other than that, to the best of my knowledge, I have not had any interaction with Mr Foletta.

5. Mr Foletta has requested that I confirm my agreement that this Memorandum of Advice be disclosed to all Parliamentarians in the Parliaments of New South Wales and Victoria. I give my agreement as requested.

6. I have received payment from Mr Foletta for this Memorandum of Advice in the sum of $2,200.00 inclusive of GST. I agreed to his request to so limit my fee retainer as Mr Foletta is a solicitor acting personally without intention for financial gain from this advice. 2

Advice Requested

On or about 9 June 2016 the Legal and Social Issues Committee (Committee) of the Parliament of Victoria produced its "Inquiry into end of life choices — Final Report" (Final Report).

8. The Final Report consisted of the following reports:

(a) Majority report of the Committee Majority (Majority Report)

(b) Minority report by Mr Daniel Mulino (Mulino Report); and

The sharpest contention between the Majority Report and the Mulino Report and the Peulich Report fairly plainly relates to Recommendation 49:

"That the Victorian Government introduce a legal framework providing for assisted dying, by enacting legislation based on the assisted dying framework outlined in this Report in Annex 1, Assisted Dying Framework Summary'.

That "Framework Summary" occupies four pages in Annex 1 to the Final Report.

10. I am instructed to provide advice in relation to the following:

(a) Did the Committee Majority follow an adequate procedure in procuring all relevant evidence — did it fetter its discretion by not considering evidence available from Belgium other than a brief reference to the Belgian euthanasia model and palliative care in Belgium;

(b) Did the Committee Majority give proper weight to the evidence it had had or could have had available to it

including comparing the significance of statistical evidence of no compliance compared to personal testimony of suffering;

(c) Based on the evidence obtained, and the conclusions reached by the Committee Majority, were the Committee Majority entitled to make Recommendation 49 — including were irrelevant factors taken into consideration, for examples, "community values" and emphasis of "choice" rather than "pain and suffering";

(d) Is it open for the ordinary person thinking reasonably to consider that the majority of the Committee did not have proper grounds for making Recommendation 49; and

(e) If Recommendation 49 fails, should the recommendations in the Peulich Report and the Mulino Report be adopted?

11. I have received the following procedural instructions:

(a) That the Final Report must stand or fall on its own merits;

(b) That I do not need to consider the 18 June 2017 Letter of Mr Foletta to Senator Dr Richard Di Natale (with its Annexures) briefed to me to the extent that it relates to issues other than:

i. Administrative law issues; and

ii. Facts which Mr Foletta considers all members of the Committee should have considered.

12. I am also instructed that Mr Foletta takes substantial issue with the Health Minister's comment in the "Introduction from the Minister for Health" to the Discussion Paper giving an opinion that Victoria "must" follow other countries. On the basis of my discounted retainer, I have been instructed to not consider if the Health Minister's comment could, would or did influence the final outcome of this debate and any policy that this may be dictating. 4

Summary of Opinion

13. It does seem somewhat remarkable that the detailed Majority Report almost entirely failed to give any consideration to the position in Belgium.

14. I did not note any explanation in the Majority Report as to why the position in Belgium (which introduced legislation permitting euthanasia as early as 2002 and since then appears to have had a series of relaxations of previous safeguards) which has generated considerable controversy was not considered or why Belgium was not visited.

15. The Mulino Report highlights (among other things) some of the problems that opponents of certain types of physician assisted dying and euthanasia claim to have arisen from the permitting of euthanasia or assisted dying in Belgium.

16. I do not conclude that this omission to consider the position in Belgium (very arguably the "elephant in the room") means that Recommendation 49 is legally invalid (in the way that it arguably might have been if produced by a quasi-judicial body like an adjudicator in some of the authorities discussed by Mr Foletta in the annexures to his 17 June 2017 letter dealing with administrative law issues).

17. Equally, if the Majority Report influences members of the Victorian Parliament to vote in favour of permitting assisted dying and euthanasia in certain circumstances, despite deficiencies or illogicalities in the Majority Report, I do not consider that the then undesirable result of deficiencies or illogicalities in the Majority Report influencing the passage of so significant a piece of legislation would make invalid any such legislation passed by the Victorian Parliament.

18. Rather, that surprising omission to consider the position in Belgium is a matter that individual members of the Victorian Parliament (or other Parliaments considering the Majority Report) may choose to reflect on in evaluating cogency, or otherwise; of the arguments developed in 5

relation particularly to Recommendation 49 by the Majority Report in contrast to the arguments developed by the particularly the Mulino Report.

19. My ultimate conclusion in relation to the various questions asked of me as noted in paragraph 10 above is that (despite my observations in paragraphs 15-16 above) it is open for the ordinary person thinking reasonably to consider that the Committee Majority did not have proper grounds for making Recommendation 49, particularly given the omissions to consider insights that might be derived from the experiences in Belgium that appear to have been ignored in the Majority Report.

20. That might well provide cogent reasons for Parliamentarians to conclude that the recommendations in the Peulich Report and the Mulino Report should be adopted, particularly to reject Recommendation 49 and therefore to reject legislation introduced into Parliament as a result of Recommendation 49.

Background Facts, including Some Observations about the Final Report

21. On 7 May 2015 the Victorian Legislative Council agreed to the following motion:

That pursuant to Sessional Order 6 this House requires the Legal and Social Issues Committee to inquire into, consider and report, no later than 31 May 2016, on the need for laws in Victoria to allow citizens to make informed decisions regarding their own end of life choices and, in particular, the Committee should —

1 assess the practices currently being utilised within the medical community to assist a person to exercise their preferences for the way they want to manage their end of life, including the role of palliative care; 6

review the current framework of legislation, proposed legislation and other relevant reports and materials in other Australian states and territories and overseas jurisdictions; and

3 consider what type of legislative change may be required, including an examination of any federal laws that may impact such legislation.

(Terms of Reference)

22. The Victorian Legislative Council's Legal and Social Issues Committee (Committee) was delegated the responsibly of holding an Inquiry into end of Life Choices. The Committee was formed by the following people: Hon Edward O'Donohue MLC, Chair, Eastern Victoria; Ms Nina Springle MLC, Deputy Chair, South-Eastern Metropolitan; Ms Margaret Fitzherbert MLC, Southern Metropolitan; Mr Cesar Melhem MLC, Western Metropolitan; Ms Fiona Patten MLC, Northern Metropolitan; Ms Jaclyn Symes MLC, Northern Victoria Mr Daniel Mulino MLC, Eastern Victoria; and Mrs Inga Peulich MLC, South-Eastern Metropolitan.

23. On 30 May 2015, the Committee called for submissions. On 31 July 2015, "Submissions formally closed". (See paragraph 1.2.1 "Submissions" in the Final Report.)

24. The Committee held public hearings in Victoria and overseas as follows:

(a) 16 March 2016 and then 10, 23 and 24 June 2016, public briefings in Melbourne Victoria,

(b) 29 and 30 July 2016 and then 26 August 2016, site visits in Victoria;

(d) 2 April 2016, Zurich, Switzerland;

(e) 4 April 2016, Montreal, Canada;

(f) 4 and 5 April 2016, Ottawa, Canada;

(g) 5, 7 and 8 April 2016, Portland, Oregon; and

(h) 13 April 2016, video conference with Ms Carine Brochier,

European Institute for Bioethics (Brussels, Belgium) Melbourne .

25. I am instructed that five of the eight Committee members travelled to jurisdictions located outside Australia. The Committee members who travelled overseas did not visit Belgium or seek a range of witnesses including euthanasia practitioners (including Mr Wim Distlemans) from Belgium.

26. On or about 9 June 2016 the Committee produced the Final Report.

27. In or about June 2016, the Parliament of Victoria produced a "Inquiry into end of life choices; Final Report: Summary Booklet" (Summary Booklet);

28. In or about January 2017, the Parliament of Victoria has produced a "Voluntary Assisted Dying Bill Discussion Paper" (Discussion Paper). The Health Minister Jill Hennessy MP (Health Minister) has provided comment "Introduction from the Minister for Health" to this Discussion Paper."

29. A Ministerial Advisory Panel (MAP) to the Parliament of Victoria's Health Minister, the Honorable Jill Hennessy MP, was responsible for the provision of advice regarding the implementation of euthanasia into the State of Victoria.

30. I am instructed that Mr Foletta did not make any submissions to the Committee because he was not aware that the Committee was hearing this issue. 8

31. I am instructed that in late 2016 or January/ February 2017, Mr Foletta watched a replay of Mr Andrew Denton's speech to the National Press Club on the issue of euthanasia. This speech triggered Mr Foletta's interest in this euthanasia debate.

32. I am instructed that Mr Foletta knew about the issues in Belgium because he had seen a documentary on television several years ago about euthanasia in Belgium. I am instructed that this caused him to look for how the report considered Belgium and that he was concerned that he could not see any of what he felt would be a proper reference to Belgium in the Final Report. I am instructed that Mr Foletta is concerned that many other people may believe that the Final Report was comprehensive in this regard and be surprised to find that Belgium is not considered by the Majority.

33. I am instructed that on 5 March 2017, Mr Foletta submitted his written submissions to the MAP (Foletta Submissions).

34. On 9 April 2017, the period for lodging submissions to the MAP closed.

35. I am instructed that on 9 April 2017, Mr Foletta submitted a complaint to the Ombudsman of Victoria, Mrs Deborah Glass OBE (Ombudsman), via email upon which was included the MAP (Foletta Complaint).

36. I am instructed that Mr Foletta received a telephone from an employee of the Ombudsman to advise that the Ombudsman did not consider there to be any jurisdiction to hear the Foletta Complaint.

37. I am instructed that on and from 9 April 2017 through to mid-April 2017, Mr Foletta emailed the Foletta Submissions and the Foletta Complaint to the Members of both houses of the Parliament of Victoria — with the exception of the members who were from the Australian Greens.

38. On 18 June 2017, Mr Foletta sent an email to the Australian Greens federal leader Senator Doctor Richard Di Natale and the Parliament of Victoria's members who represent the Australian Greens (18 June 2017 Letter). The 18 June 2017 Letter contained a covering letter and some forty two (42) annexures on various legal, social, philosophical and theological issues.

39. I am instructed that between 18 June 2017 and the following fourteen days, Mr Foletta emailed the 18 June 2017 Letter to the following:

(a) The Premier of Victoria, Mr Daniel Andrews;

(b) The Committee;

(d) Almost every Member of Parliament in New South Wales;

(e) The taskforce who are charged with the responsibly to implement the Parliament of Victoria's "LGBTIQ+ Inclusion Plan".

40. In or about May 2017, the MAP produced their "Interim report of the Ministerial Advisory Panel: Consultation overview Voluntary Assisted Dying Bill" (MAP Interim Report).

41. In or about July 2017, the MAP produced their "Ministerial Advisory Panel on Voluntary Assisted Dying Final Report" (MAP Final Report) .

42. Material which has been briefed to me includes copies of:

(a) The Final Report; and

(b) The 18 June 17 Letter.

43. In relation to the 18 June 2017 Letter, I am instructed that (and have followed these instructions):

(a) I do not need to consider the following annexures of the 18 June 17 Letter: 1, 19, 20, 21, 25 or 27 to 42.

(b) I do need to consider the following annexures to the 18 June 17 Letter in their entirety: 2 to 18;

(c) I only need to consider the following annexures to the extent that they present any reasons to oppose euthanasia, but I am not required to consider the comparative merit of the reasons contained in the following annexures to the 18 June 17 Letter: 22, 23, 24 and 26.

44. Material which has been not briefed to me includes copies of:

(a) Summary Booklet;

(b) Discussion Paper;

(d) Foletta Complaint;

(e) MAP Interim Report; and

(f) MAP Final Report.

45. The Majority Report includes the following structure:

(a) Extensive discussion of palliative care and advance care planning, leading to recommendations 1-48.

(b) Chapter 8 "Victoria should legalise assisted dying" contains the Majority's full extent of reasoning for the introduction of "assisted dying" and, in certain circumstances, euthanasia (as traditionally understood) legislation into the State of Victoria.

(d) Appendix 2 "Public hearings, briefings, site visits and meetings" lists out in greater detail the evidence gathering done by the Committee.

(e) Appendix 3 "Assisted dying in international jurisdictions" lists out the structure, as interpreted b•the Majority, of certain jurisdictions overseas where assisted dying is legal. It deals with the five overseas jurisdictions visited by five members of the Committee. It is noted that there is no separate heading for Belgium, although there is mention of Belgium in the table of comparative legislation in Appendix 4 "Legislation in jurisdictions that allow assisted dying" which, correctly, notes that the Belgium legislation commenced in 2002.

(f) Appendix 6 "Submission evidence summary" sets out the Majority's understanding of how the evidence before it was considered and conclusions reached.

(g) Appendix 7 "Arguments for and against legalising assisted dying summary" sets out the broad based approach for the Majority's handling of competing argument Perhaps unhelpfully for persons seeking to use the Final Report the summary does not "offer a critique of the arguments" for, or against, legalising assisted dying (see both A7.1 and A7.5 which concludes "The Committee does not assign any particular value or make any critique of the arguments [against legalising assisted dying] as presented in this Appendix".

(h) A detailed "Bibliography" starting at page 319 of the Final Report sets out a number of documents on the issue of euthanasia (however described) which the majority assert was reviewed, taken into knowledge and used to inform the Majority in making its ultimate conclusion that making 12

Recommendation 49 was the proper recommendation to make. Within that Bibliography there are numerous references to papers considering the situation in Belgium (I counted well over 10 articles), including articles that appear to suggest from their title alone serious problems have been occurring in Belgium. For example there is a reference to Cohen-Almagor, R, 'First do no harm: Pressing concerns regarding euthanasia in Belgium', International Journal of Law and Psychiatry, vol. 36, no. 5, 2013. While the Majority Report does not deal with Belgium, I note that the Abstract to this article includes "Concerns are raised about (1) the changing role of physicians and imposition on nurses to perform euthanasia; (2) the physicians' confusion and lack of understanding of the Act on Euthanasia; (3) inadequate consultation with an independent expert; (4) lack of notification of euthanasia cases, and (5) organ transplantations of euthanized patients." (The Mulino Report, which does consider problems suggested by the experience of Belgium, contains additional references to studies made of that jurisdiction.)

46. There is internal criticism of the Majority's report by each of the two minority reports. Some of those criticisms include:

(a) The Mulino Report states that the Majority "side stepped" the issues in Belgium, and statistical analysis in general; and

(b) The Peulich Report makes two criticisms, namely,

i. That the outcome was a forgone conclusion by virtue of the known preference of the committee members to support euthanasia (in whichever of its various forms); and 13

ii. That the majority of witnesses were known to be supporters of euthanasia (in whichever of its various forms).

47. Having read the Mulino Report, the Peulich Report and Mr Foletta's 18 June 2017 Letter, I can see that there is a lot of correlation between the three documents. Mr Foletta directly quotes from the Mulino Report and the Peulich Report in his 18 June 2017 Letter, ostensibly to reinforce his belief in the need for the Mulino Report and the Peulich Report to be given greater weight than the Majority Report.

48. Mr Foletta's 18 June 2017 Letter has identified the treatment of the evidence which the Majority did do, however he also asserts that:

(a) The Majority of the Committee did not comply with the Terms of Reference because they did not consider Belgium at all or give adequate treatment of concerns about abuse in other jurisdictions;

(b) The majority relied on catch phrases like "robust" as reasons when they are not reasons;

(c) The comparison to different competing arguments was one sided in both amount of counter argument made and the strength to how those arguments were put;

(d) That there was no reason for choosing "choice" as being the key to defining dignity;

(e) That there was no grounds for saying the there is "no evidence" of slippery slope when Belgium was not considered and the change in legislation in Belgium is an example of actual slippery slope being visible;

(f) That the assertion of number of submissions for and against is not the proper determinate of the Committee's outcome regarding Recommendation 49 — especially in the face of 14

submissions by pro euthanasia supporters that pro euthanasia individuals are more likely than non-supporters of euthanasia to make a submission;

(g) That too much weight was placed on emotional personal testimony, rather than the assertions that the number of people who will benefit from any introduction of new law is likely to be outweighed by the risks;

(h) That the committee did not state how the documents in the Bibliography were relied upon, especially when those documents contained statements against euthanasia, and mere reference to having read them does not constitute the provision of reason for making Recommendation 49; and

(i) That in the absence of clear reason, it is open to the ordinary person thinking reasonably, that the majority of the Committee acted either;

i. Under dictation from a Premier and Health Minister who favoured euthanasia;

ii. The Australian Greens who have an expressly stated policy in support of euthanasia; or

iii. Lobbyists who support euthanasia.

Essential Reasons for Opinion

49. There is much useful material in the Final Report, including in the chapters dealing with palliative care and in the assembling of material that might be able to assist in the very difficult issues that confront society about what should be approaches to palliative care, advance care directions and end of life issues generally.

50. The issues most under attack in the two Minority Reports seem primarily directed to Recommendation 49. 15

51. Some of Mr Foletta's comments might suggest, in his mind, a view of bad faith or a pre-determined approach by at least some members of the Majority. The comments in the Peulich Report under the heading "Background" also exhibit that concern of a pre-determined approach:

"From the outset, this inquiry was expected to deliver the recommendations which are contained in the report due to the strong predisposition of the committee to voluntary euthanasia, from the time of the inquiry's establishment as well as the loading of the inquiry with pro euthanasia submissions."

52. I am not in a position to evaluate whether there was any basis for those concerns and my opinions are not based on accepting those parts of Mr Foletta's comments or the comment quoted immediately above in the Peulich Report.

53. However, what is particularly surprising is that, given the significance of Belgium in the overall debate, there is no explanation in the Majority Report as to why the position in Belgium was not investigated and why the overseas visits did not include Belgium. After all, the Terms of Reference expressly required the Committee to "review the current framework of legislation, proposed legislation and other relevant reports and materials in other Australian states and territories and overseas jurisdictions". It seems clear, even from the Bibliography in the Final Report let alone from general knowledge such as the television program referred to by Mr Foletta, that the position in Belgium and concerns raised by opponents of assisted dying legislation and euthanasia about what has been occurring in Belgium since 2002 would be important matters to have been considered.

54. The quite detailed Mulino Report is of course not limited to a discussion of the position in Belgium but does highlight a number of problems that Mr Mulino MLC considered were highlighted by what has been occurring in Belgium over the relatively long period since 2002 16

(the earliest year in which legislation expressly permitted assisted dying and euthanasia outside of the 1990s legislation in Oregon).

55. To my mind, it is very striking that the Majority Report does not confront claims based on the position in Belgium or explain why that country was excluded from the other jurisdictions visited in light of the Terms of Reference.

56. It is also rather surprising, as noted at paragraph 43(g) above, that, in Appendix 7 and particularly at A7.5, the Committee Majority would not make any critique of the arguments presented against legalising assisted dying referred to in that Appendix.

57. So, while I have not reached the conclusion that the unexplained failure of.the Majority Report to deal with the position in Belgium and the failure of the Majority Report to confront head on various arguments presented against legalising assisted dying mean that Recommendation 49 is legally invalid, I do agree with the general thrust of the criticisms by Mr Foletta about those failures.

58. Those failures (particularly to deal with the position in Belgium) provided the essential reasons why I ultimately concluded that it is indeed open (even if not legally required) for the ordinary person, thinking reasonably, to consider that the Committee Majority did not have proper grounds for making Recommendation 49.

59. I so advise.

Ian E. Davidson SC

Selborne Chambers 16 October 2017 8 October 2017

Honourable Daniel Andrews Premier of the State of Victoria Office of the Premier 1 Treasury Place MELBOURNE VICTORIA 3002

Dear Honourable Mr Andrews RE WHY EUTHANASIA HAS NO PLACE IN AUSTRALIA WHY EUTHANASIA SUPPORTERS MUST FALL ON THEIR OWN SWORD WHY EUTHANASIA IN ANY OF ITS FORMS SHOULD NOT BE PERMITTED WHY EUTHANASIA MUST NOT SEE THE SUNSET ON THIS, THE LONGEST DAY THE “DOOMSDAY BOOK 2017 ” – THIS LETTER WILL JUDGE POLITICIANS’ DECISIONS THE “SLAUGHTERGATE 2017” – COVER UP OF FAILURE TO INVESTIGATE BELGIUM I refer to my letter to Senator Dr Richard Di Natali dated 18 June 2017 (Di Natali Letter) of which you have received a copy.

Upgrades from the Di Natali Letter

Whilst some of the contents of this letter to you was contained in the Di Natali Letter, this \written work contains the following changes:

1. A list of seventeen contentions – which act as reasons which all people who vote on euthanasia must overcome;

2. A list of guiding principles – which act as reasons which all people who vote on euthanasia must overcome;

3. My response to the MAP Final Report – which had not been served as at the date of the Di Natali Letter;

4. A full response to the MAP Interim Report, expanding on the few paragraphs in the Di Natali Letter;

5. A full response to the Discussion Paper - expanding on the few paragraphs in the Di Natali Letter;

6. A full response to the Final Report: Summary Booklet expanding on the few paragraphs in the Di Natali Letter;

7. Additional photographic diagrams;

8. An expanded description of the relevance of administrative law principles;

9. Further detail as to criticisms of the Majority of the Committee’s Final Report; and

10. My own set of recommendations to the Parliament of Victoria.

Not all members of the Parliament of Victoria were provided with a copy of the Di Natali Letter.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 1

The Di Natali Letter included some of the material from my 5 March 2017 submissions to the MAP and my 9 April 2017 complaint to the Victorian Ombudsman Deborah Glass OBE. These submissions and the complaint were very much the “first generation” in the evolution of these my position and thinking about why euthanasia should not be introduced into Australia.

Sink the Titanic – Recommendation 1 from the MAP Final Report;

The whole process of euthanasia must fail for the reason set out in recommendation 1 of the MAP which says as follows:

Recommendation 1

Providing people with genuine choices must be balanced with the need to safeguard people who might be subject to abuse.

Given that the health minister Jill Hennessy MP, the Final Report and Daniel Mulino all state that very few people cannot be treated for pain by palliative care, that means the introduction of something so risky is out of balance with the actual need. Therefore, you and all MPs should vote against euthanasia for the reason set out in this recommendation of the MAP. I have issue below in response to the MAP Final Report.

100% safe and no complications to report of – something strange going on

In 2004, a surgeon from the British house of lords, as reported by the Patients’ Rights Council, where the said, in their words:

“Lord McColl of Dulwich, questioned that assertion. He said that, in his practice as a physician, "If any surgeon or physician had told me that he did 200 procedures without any complications, I knew he possibly needed counseling and had no insight. We come here and I am told there are no complications. There is something strange going on."

When is Lordship, a learned surgeon does not believe that it is even possible for there to be no complications when it is known that no surgery or treatment is without complications – especially when dealing with drugs that are being taken by a person who is already taking a cocktail of painkilling drugs – is simply not able to be believed. This should be a lesson for both Victoria and New South Wales, Australian states that praise the Oregon model.

The LGBTIQ+ Community Will be Vulnerable

As set out in my letter, I understand that you want to protect the LGBTIQ+ community in Victoria form harm. You have an LGBTIQ+ inclusion plan. Let me assure you, euthanasia enthusiasts who love their ideology being expanded, also have an LGBTIQ+ inclusion plan – to include people with depression in the scope of their calls for an expansion of the application of euthanasia. When you are gone from Parliament, the legacy of the introduction of euthanasia will be that it is expanded and expanded and expanded. What you set in motion you will not be able to control and people will be killed in ways you cannot control – including the LGBTIQ+. Future Premiers will be apologizing for the effects of euthanasia for and on behalf of what your government put into place.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 2

Doctors Who Kill Without Their Lack of Morality Knowing any Borders

It is unanimous that some of the greatest beneficiaries to this legislation will be doctors and nurses who kill. Indeed, even Dr Rodney Symes wants the law clarified to protect doctors – like himself – who assist people to die.

Doctors who kill should be punished, not protected.

Left/ Right Wing Political Persuasion

It may be that many in the Parliament of Victoria may wish to ignore my report accusing it of being right wing bias. I personally do not care for right or left wing classification – except for when I am on an aeroplane and hope it has both for the full duration of the flight.

There are principles included in this report which should be so universal that left/ right wing classification become irrelevant. Some examples are– looking at all of the evidence, looking at the adverse evidence, giving reasons for why something should be done, not acting under policy. Indeed, protecting life and seeing all people, including people who are hold and do not pay taxes or much tax anymore. I therefore ask all members of the Parliament of Victoria to oppose euthanasia for the reasons set out in this report.

The criticisms of the majority report by Mrs Inga Peulich and Mr Daniel Mulino should hold true no matter one’s place on the political spectrum – side stepping evidence and preferred committee members and preferred witnesses.

Euthanasia enthusiasts falsehoods

Those who seek euthanasia/ assisted dying being legalised/ decriminalised are:

(a) Falsely claiming that euthanasia is an “act of love” towards the dying;

(b) Falsely claiming that euthanasia is a pleasant, calm, peaceful and graceful death;

(d) Falsely claiming that Australia is not sufficiently free and liberal without euthanasia;

(e) Falsely claiming that the majority community support for euthanasia;

(f) Falsely claiming that a substantial number of members of the catholic church support euthanasia – which is why I have employed so much expert evidence;

(g) Falsely claiming that “increasing” medical doctors and nurses support justifies euthanasia laws;

(h) Falsely claiming that “increasing” palliative care workers’ support justifies euthanasia laws;

(i) Falsely claiming that euthanasia procedure will be regulated, that no one will die unlawfully;

(j) Falsely claiming that euthanasia abuses overseas don’t stem from ideological motivations;

(k) Falsely claiming that euthanasia abuses overseas resulting in unlawful deaths is trivial;

(l) Falsely claiming that euthanasia abuses overseas are not “elder abuse” for financial gain;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 3

(m) Falsely claiming that euthanasia abuses overseas are not encouraging more suicides;

(n) Falsely claiming that that atheistic separation of church and state justifies euthanasia;

(o) Falsely claiming that the ambit of the application of euthanasia will not be widened; and

(p) Falsely coaming that Christians have no right to voice an opinion on this issue.

Let Me Take You Through the Streets of London and Show You Something That Will Change Your Mind

Whilst I understand that your strong preference is to support euthanasia, for the reasons set out in this letter and annexures, I ask you to change your mind and oppose euthanasia.

There is no shame in changing one’s mind when a superior argument is being provided. Not changing one’s mind in the face of clearly good counsel, is the artwork of the person with short term vision and an inability to accept the consequences of a poor decision.

The death of a thousand innocents who are coerced into choosing to die, or having their life taken from them by a doctor at the end of a long life or squashed or smothered out of them as a new born babe, will depend on you all politicians around Australia seeing and opposing the falsehood in the arguments relied upon by pro-euthanasia lobbyists.

Thank you for considering my submissions.

Kindest Regards

David R.A. Foletta BCME LLB GDLP Solicitor High Court of Australia Solicitor Supreme Court of NSW Justice of the Peace in and for the State of NSW

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 4

Contents Chapter 1: Executive Summary ...... 8 Annexure 1.: Structured Statement of my Contentions...... 8 Annexure 2.: Test Cricket “Image Cloud” (response to the Final Report’s “Word Cloud”) ...... 10 Annexure 3.: Politicians’ Testimony Against Euthanasia ...... 11 Chapter 2: Guiding Principles ...... 12 Annexure 4.: Guiding Principles ...... 12 Chapter 3: The Parliament of Victoria ...... 13 Annexure 5.: Professor Brian Owler v Overseas Experts ...... 13 Annexure 6.: Victoria’s Infected Evidence Spreads Around the Country (and the world) ...... 14 Annexure 7.: Victorian Department of Premier and Cabinet’s Policies Contrary to Euthanasia ...... 15 Annexure 8.: Victorian 2006 Charter of Human Rights Contrary to Euthanasia ...... 17 Annexure 9.: The Majority Final Report Should Not be Accepted ...... 18 Annexure 10.: The Final Report: Summary Booklet Should Not be Accepted ...... 27 Annexure 11.: The Discussion Paper Should Not be Accepted ...... 32 Annexure 12.: The MAP Interim Report Should Not be Accepted ...... 35 Annexure 13.: The MAP Final Report Should Not be Accepted ...... 37 Annexure 14.: Culture, Social Values and Inappropriate Justifications for Euthanasia ...... 71 Annexure 15.: Not Binding But Persuasive ...... 72 Annexure 16.: Administrative Law Requirements Further Detailed ...... 74 Annexure 17.: The Ombudsman Act 1973 (Victoria); ...... 82 Annexure 18.: Judicial Opinion on Providing Reasons ...... 84 Annexure 19.: Judicial Opinion on “turning one’s mind” ...... 90 Annexure 20.: Use and Abuse of State Supreme Courts ...... 107 Chapter 4: Philosophical Arguments ...... 108 Annexure 21.: The falsehood of the “we do not treat pets this way” arguments ...... 108 Annexure 22.: What is human Dignity? What is dignity for the dying? ...... 109 Annexure 23.: “Autonomy’ of the individual ...... 118 Annexure 24.: “Choice’ of the individual ...... 120 Annexure 25.: A human right to die ...... 123 Annexure 26.: No Consequences on Others ...... 125 Chapter 5: The Evidence ...... 127 Annexure 27.: The Northern Territory ...... 127 Annexure 28.: Victoria ...... 128 Annexure 29.: South Australia ...... 135 Annexure 30.: Tasmania ...... 138

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 5

Annexure 31.: New South Wales ...... 139 Annexure 32.: Federal Jurisdiction ...... 141 Annexure 33.: Current Status Internationally ...... 144 Annexure 34.: Chronology and Statistics Internationally ...... 146 Annexure 35.: Correcting “Misinformation” International Misdeeds ...... 154 Annexure 36.: The Oregon Model and its Failures ...... 156 Annexure 37.: Oregon Culture Distinguished ...... 174 Annexure 38.: The Washington State Model and its Failures ...... 176 Annexure 39.: The Dutch Model and its Failures ...... 181 Annexure 40.: The Quebec Model and its Failures ...... 187 Annexure 41.: The English speaking Canadian Model and its Failures ...... 191 Annexure 42.: The Belgian Model and its Failures ...... 195 Annexure 43.: The Swiss Model and its Failures ...... 197 Annexure 44.: Correcting “Misinformation”: Do Doctors kill (incl. babies)? ...... 199 Annexure 45.: The “Slippery Slope”: People’s Responses to Pain Allows It To Happen ...... 211 Annexure 46.: The “Slippery Slope”: Q and A Discussion ...... 212 Annexure 47.: The “Slippery Slope”: Victorian Majority Final Report and “No evidence” ...... 221 Annexure 48.: Workplace Health and Safety laws Part 1: Victoria ...... 231 Annexure 49.: Workplace Health and Safety laws Part 2: New South Wales ...... 232 Annexure 50.: Workplace Health and Safety laws Part 3: South Australia ...... 233 Annexure 51.: “Go Gentle Australia”...... 234 Annexure 52.: Rebutting the Dying for Choice’s (Neil Francis) Submissions ...... 248 Annexure 53.: “Dying with Dignity Victoria” ...... 267 Annexure 54.: Christians for Euthanasia ...... 270 Annexure 55.: Practical Problems Part 1: Substantial Compliance ...... 271 Annexure 56.: Is euthanasia a “good death” and pain free? Denying all Dignity In Death ...... 278 Annexure 57.: The Poker Machine Test Must Be Avoided...... 280 Annexure 58.: The Real Fear Mongers Are the Pro-Euthanasia Lobby ...... 281 Annexure 59.: The “Euthanasia Industrial Complex” ...... 283 Annexure 60.: Atheism and Humanism ...... 284 Annexure 61.: Christianity ...... 292 Annexure 62.: Vernacular & Colloquial Assessment Part 1 - The “Pub Test” ...... 295 Annexure 63.: Vernacular & Colloquial Assessment Part 2 - The “Pell Test” ...... 296 Annexure 64.: Euthanasia Contrary to Other Policies of the Australian Greens ...... 297 Annexure 65.: Lessons about “Self Harm” from “Beyond Blue” ...... 300 Annexure 66.: The Groningen Protocol: Down’s syndrome; deafness; blindness and cerebral palsy .... 302 Annexure 67.: Nazi Germany and Dehumanizing People Deemed Suitable to be Killed in Australia .... 305

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 6

Annexure 68.: Victoria’s LGBTIQ Inclusion Plan and Euthanasia ...... 306 Chapter 6: Indexes and Further Information ...... 312 Annexure 69.: Useful Links ...... 312 Annexure 70.: Definitions ...... 313 Chapter 7: About the Author ...... 314 Annexure 71.: My Background ...... 314 Annexure 72.: Why I wrote a “big” letter not a “one page” letter ...... 315 Annexure 73.: Statement of Independence ...... 316 Annexure 74.: My Involvement in this Debate ...... 317 Chapter 8: The Foletta Recommendations ...... 319 Annexure 75.: My Recommendations to the Parliament of Victoria (and NSW and elsewhere) ...... 319

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 7

Chapter 1: Executive Summary Annexure 1.: Structured Statement of my Contentions. 1. It is my first contention that the Parliament of Victoria:

(a) should not accept the Majority Report included in the Final Report in so far at it relates to the adoption of any form of euthanasia, including assisted dying;

(b) should not accepted Recommendation 49 included in the Final Report;

(d) should not accept the Discussion Paper;

(e) should not accept the MAP Interim Report; and

(f) should not accept the MAP Final Report.

2. It is my second contention that the Parliament of Victoria has no authority to adopt any form of euthanasia, including assisted dying because the above documents are not able to be accepted.

3. It is my third contention that the Parliament of Victoria must adopt the conclusions included in the Peulich Report and the Mulino Report;

4. It is my fourth contention that the Parliament of Victoria must be above reproach and only make decisions for which there is sufficient evidence and decisions that are based on evidence;

5. It is my fifth contention that the Parliament of Victoria must be seen to be above reproach and adopt a higher than bare minimum expectation of the Majority in their use of evidence to support the introduction of euthanasia in any of its forms, included assisted dying.

6. It is my sixth contention that the Parliament of Victoria must adhere in principle, to administrative law requirements even if they are not directly applicable to the decision of the Majority of the Committee, in order to satisfy my fifth principle;

7. It is my seventh contention that the Parliament of Victoria must not create a risk to human life that does not now exist and assert that risk may be controlled rather than eliminated;

8. It is my eighth contention that the Parliament of Victoria must exercise its own mind and not take dictation from the Majority of the Committee, the Premier, the Health Minister or any lobby group;

9. It is my ninth contention that the Parliament of Victoria must discount the heartfelt but disproportionate testimony of people who claim immense suffering experienced by their loved ones and themselves at end of life as this has been repeatedly used to side step the actual stated level of need for euthanasia.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 8

10. It is my tenth contention that the Parliament of Victoria must dismiss the claimed level of support for euthanasia on the basis that the research is small, bias and does not provide the necessary facts to the responder; and

11. It is my eleventh contention that the Parliament of Victoria must realise that if the Majority of the Committee that fails to comply with administrative requirements, then, it is likely that people who use any legislation and do actions away from public scrutiny will be likewise not comply with administrative legislative requirements;

12. It is my twelfth contention that the Parliament of Victoria must not abuse the Victorian Supreme Court and ask the Victorian Supreme Court to act as a supervisor for the legislation to make an otherwise faulty safeguard safe on the basis that court’s does not seek to order remedies whereby the Victorian Supreme Court establishes itself as a supervisor;

13. It is my thirteenth contention that the Parliament of Victoria must not draw a comparison between the role of the Victorian Supreme Court in punishing murder/ manslaughter in the way that it does now and doing the same that arises out of euthanasia in any of its forms, including assisted dying. The this on the basis that the former has no legislative backing and it is entirely the result of the known wrongdoing of the defendant, the latter is done in the guise of a situation created by the legislature and the legislature is relying on the Victorian Supreme Court to enforce its lack of precision on drafting, and that the legislature attempted to cover all unforeseeable instances of how its legalized killing system may be at fault and did not achieve the legislatures objective;

14. It is my fourteenth contention that the Parliament of Victoria must adopt the philosophical and sociological reasons that oppose the claims that euthanasia, in any of its forms including assisted dying, should be adopted.

15. It is my fifteenth contention that the Parliament of Victoria must will find these laws impossible to implement without judicial reinterpretation that may broaden the scope and not require some safeguards as drafted to be complied with.

16. It is my sixteenth contention that the Parliament of Victoria must make decisions that protect the people in their respective electorates. Further, the more: Grave; Adverse; Irreversible; Fatal; Unfair; Unconscionable; and/ or deceitfully procured (even capably of being intrinsically deceitful carried out in practice), the slower the politician should be to agree to any new legislative permission to create the potential danger; and

17. It is my seventeenth and final contention that the Parliament of Victoria must see that people who support euthanasia do so for reasons that are not related to the merits or lack thereof of euthanasia. This letter/ report sets out the arguments that support my seventeen contentions.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 9

Annexure 2.: Test Cricket “Image Cloud” (response to the Final Report’s “Word Cloud”) Test Cricket “Image Cloud” assessing responses to the question “Has anyone scored a test triple century at the Melbourne Cricket Ground?” The size of the top three photographs in this “Image Cloud” are proportional to the highest score at the Melbourne Cricket Ground.

Sir Vivian Richards says

“I haven’t, I have only got a High Score of 208”

Sir Donald Bradman says

“I haven’t, I have only got a High Score of 270”

Bob Cowper says

“I have, I scored 307 against England in 1966”

Now then imagine if Ritchie Benaud then said:

I have done an extensive investigation and determined that there is “no evidence” of a test cricket triple century having been scored at the Melbourne Cricket Ground.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 10

Annexure 3.: Politicians’ Testimony Against Euthanasia ADVICE FROM THE FORMER BRITISH PRIME MINISTER

I would urge all federal, as well as state, politicians to take note of the former British Prime Minister, Mr David Cameron who opposed euthanasia. As cited in the Euthanasia Prevention Coalition newsletter Number 164 July 2015. I would hardly think that the Honorable David Cameron would call himself a part of a religious minority or a panic merchant or a speaker of FUD because he opposes euthanasia. Indeed, many religious people oppose David Cameron’s use of his opinion to support same sex marriage.

“Prime Minister David Cameron, opposes assisted suicide. The media reported that Cameron told his weekly Prime Minister’s Question Time that:

I don’t support the assisted dying proposals. I don’t support euthanasia. ...problems with the existing law can be ‘dealt with sensitively’ without ‘bringing in euthanasia.’

Per Euthanasia Prevention Coalition newsletter Number 164 July 2015

MAINE – UNITED STATES OF AMERICA

Portland Oregon was so named for of Portland Maine. The Governor of Maine, Governor Mr Paul Le Page, as said that he would veto euthanasia legislation.

Maine Governor Le Page says he will veto assisted suicide bill According to an April 18 article in the Portland Press Herald, Governor Paul LePage told a local radio show that he is against assisted suicide:

“I’m against it,” he said Monday during a radio interview on WVOM’s “George Hale and Ric Tyler Show.” Asked if the bill is destined for a veto, LePage said, “Yes. Here we are talking about death with dignity and we’re sitting there, human beings, passing judgment on who can live and who can die. No, I don’t believe in it.”

Cited in the Euthanasia Prevention Coalition newsletter Number 185: May 2017

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 11

Chapter 2: Guiding Principles Annexure 4.: Guiding Principles

1. In addition to the contentions set out in the executive summary (Contentions), this report is framed on the following guiding principles.

(a) That euthanasia legislation should not be debated on the basis of left wing politics v right wing politics;

(b) That the Parliament of Victoria must call out unacceptable use of evidence for what it is and be willing to condemn parliamentary reports which are not acceptable;

(c) That the Parliament of Victoria will be remembered for its unacceptable use of evidence for a long time if it makes decisions that are not evidence based – this will be George W Bush and lack of evidence for weapons of mass destruction before going into Iraq a second time;

(d) That the Parliament of Victoria needs to determine if the terms of reference were satisfied by the Majority of the committee in its Recommendation 49;

(e) The motives of those who support euthanasia must be examined and what influences the exerted on the outcome of the Majority of the Committee;

(f) The Majority Report and Recommendation 49 are fundamentally and irreparably flawed because they did not consider the evidence of Belgium or give proper weight and therefore parliament has no honest choice but to set aside the whole of Recommendation 49 and any subsequent document based on implementing Recommendation 49;

(g) That the subsequent documents themselves lend to the fact that the best solution is to avoid euthanasia in all of its forms, especially physician assisted dying;

(h) That where a submission in favour/ support of euthanasia and that is made for reasons other than a merits of euthanasia, then that submission should be dismissed and not considered in any determination of should euthanasia be introduced.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 12

Chapter 3: The Parliament of Victoria Annexure 5.: Professor Brian Owler v Overseas Experts 1. I recently read an article in the Guardian which by Gay Alcorn and Melissa Davey titled “Church and states braced for biggest battle on euthanasia” (https://www.theguardian.com/society/2017/jun/27/church-and- states-braced-for-biggest-battle-on-euthanasia) which, for the purpose of this annexure, and as a nice introduction to this Chapter gave me great cause for concern. 2. My concern arise from the attitude of the Chairman of the Ministerial Advisory Panel towards overseas experts, particular Oregon’s Doctor William Toffler, about whom this article wrote:

The American state of Oregon has allowed doctors to prescribe lethal drugs for terminally ill patients for almost 20 years, and local doctor William Toffler is in Australia to tell Australians it has been a disaster. “It’s important that Australia does not make the same mistake,” he says in a phone interview. “It’s fundamentally incompatible with the role of physician as as healer to be involved in assisted suicide and it’s caused mistrust between patients and their physicians.”

Toffler’s Australian tour marks the start of serious resistance to a new wave of attempts to legalise assisted dying in Australia, particularly in the big states of Victoria and New South Wales. Toffler is a specialist in family medicine at the Oregon Health and Science University, a Catholic, and is the leading critic of assisted dying laws in a US state with a comparatively conservative and regulated regime to allow terminally ill people with less than six months to live the choice to end their life.

3. Professor Owler is recorded as saying:

“Bringing out personalities from overseas who try and scare people, I mean parliamentarians are not silly,”

This was ahead of what the article went on to say “Owler, who will present his final report to parliament on 31 July.”

4. My fundamental school is quite simply this:

(a) How can Professor Owler dismiss the experience of a doctor who has lived the affects which Owler and the Committee has only read and learned about;

(b) When so much of the Oregon model, which New South Wales appear to like very much, is based on trust in the relationship between doctor and patient, how can Professor Owler dismiss the experience of a doctor who has practices medicine in Oregon based on what he and the Committee have only read about and talked to biased witnesses about; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 13

Annexure 6.: Victoria’s Infected Evidence Spreads Around the Country (and the world) 1. I hold a very negative and pessimistic view in relation to this likely use and misuse of the Majority Report. I am concerned that:

(a) the headlines in favour of euthanasia will be highly publicized;

(b) states other than Victoria will rely in it:

(i) South Australia recently voted, based on what? Perhaps the Majority Report and Recommendation 49

(i) New South Wales will soon see euthanasia voted on - based on what? Perhaps the Majority Report and Recommendation 49

(i) Queensland will soon see euthanasia voted on - based on what? Perhaps the Majority Report and Recommendation 49

(i) Western Australia will soon see euthanasia voted on by the whole of Western Australia - based on what? Perhaps the Majority Report and Recommendation 49

(c) I myself found out about the Final Report from television, where Andrew Denton spoke about it in his speech to the national press club, and I have seen that speech on television again since the time I first saw it.

(d) This was affirmed again in Q and A by Tony Jones no less.

2. For all the above reasons, I have no option but to prepare this email on each and every issue I can think of, and then send it to all politicians in Victoria, New South Wales, South Australia, Queensland, Western Australia and in the federal legislature. 3. I have already sent the predecessor of this report (the Di Natali letter) to all politicians in New South Wales. 4. I also need to send this to several charities who’s clients will be vulnerable to euthanasia.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 14

Annexure 7.: Victorian Department of Premier and Cabinet’s Policies Contrary to Euthanasia 1. I have read the Victorian Department of Premier and Cabinet’s (DPC) Victorian Values Statement and I consider both the way that the Majority report was procured and the whole notion of euthanasia to be entirely contrary to these values. I set out the reasons why in the following values. 2. I note that “These values are not negotiable – they are what we expect of every Victorian and what every Victorian should expect of each other.” 3. Further I note that “Accepting these values is not difficult.”

The Victorian Values Statement says “no” to euthanasia. One law for all Thus vulnerable people and Everyone is equal under the law. All Victorians have the people who cost a lot of money to same legal rights, responsibilities and protections. keep alive enjoy the benefit of 1 As Victorians, we all have rights under the law and these laws. responsibilities and towards each other. By respecting our mutual rights and responsibilities, we can ensure a safe and cohesive society. Freedom to be yourself This means that people who have Everyone is free to be themselves and to feel safe in being religious reasons to oppose true to themselves. The Government wants every Victorian euthanasia should not be belittled. to be able to celebrate their culture with pride, and practice 2 their traditions in peace. The freedom to be yourself includes freedom of speech, expressions of gender, sexuality and religion, and peaceful assembly; it does not allow people to break the law or to impinge on the safety or freedom of others. Discrimination is never acceptable The issue of inclusion is what old Everyone has a responsibility to promote inclusion and people, lonely people, sick people participation and to reject exclusion, racism and all forms of and anyone who contemplates violence. A society free of discrimination is better able to euthanasia need to be, then they 3 tackle problems like economic and social disengagement will no longer need euthanasia. and improve health and wellbeing for all. The claim that the last weeks of life is when euthanasia is sought is not correct. A fair go for all This includes a fair go to live and Everyone deserves a fair go in life. That means giving every not have people kill them, even to Victorian – no matter where they live, their circumstances, protect infants who are born with 4 or their background – the support they need to enjoy the disabilities. They have a right to a Victorian way of life. These include quality education and fair go. healthcare, accessible transport, equity in employment and a safe place to live. It is up to all of us to contribute to a Victoria we can be This means that all Victorians, proud of and for the same reason people in 5 We all want similar things – the opportunity to thrive, for other states of Australia, need to our successes to be recognised, and for our families and contribute to the life of others. loved ones to be safe, secure and happy.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 15

4. I have read the Victorian DPC Strategic Framework to Strengthen Victoria’s Social Cohesion and the Resilience of its Communities (Cohesion Framework) and I consider both the way that the Majority report was procured and the whole notion of euthanasia to be entirely contrary to these values. I set out the reasons why in the following values. 5. Whilst the Cohesion Framework is prepared for reduce the risk of terrorism, the same principles are relevant to people, killing, killing themselves. 6. The evidence on who opts for euthanasia is clear that it is sought as an “out” when people have no further reason to live – this is where Belgium and Holland have been for some time. This is where Victoria will end up. Therefore, I say, that Victoria needs to be inspired to avoid euthanasia by applying the Cohesion Framework to protect potential suicides

## DESCRIPTION APPLICATION

1 “An inclusive Victoria which embraces its Use this to inspire people to live, even when lift is going not rich diversity as a precious community so well. asset in itself and supports people to thrive and respond better to change in a complex, unpredictable world.”

2 1. Belonging: Shared values, identification Give people dignity by feeling they belong. with Australia, trust.

3 2. Social justice and equity: equality of Help people trust doctors by not letting doctors kill adults opportunity and trust in institutions. or new borns.

4 3. Participation: Voluntary work, political Give people who are ill some valuable to contribute or and co-operative involvement. recognize that they have contributed in the past and now others contribute to them.

5 4. Acceptance and rejection, legitimacy: Refuse to permit rejection of people who are sick or Experience of discrimination, attitudes expensive to maintain – especially if they have paid taxes in towards minorities and newcomers. the past.

6 5. Worth: Life satisfaction and happiness, Worth, hear that, worth, life and happiness is a goal to be future expectations. aspired to. Life is seen as valuable even if a person has pain or has a disability that they do not like and cannot get rid of. People need a sense of worth, and that comes from having people want them around for as long as possible and having someone to prevent loneliness – which leads so often to a desire to consider that the person has nothing to live for and has done the best that they will ever do in live and deem their life as “completed” like the Dutch now call a “completed life” so lets drink the poison.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 16

Annexure 8.: Victorian 2006 Charter of Human Rights Contrary to Euthanasia 1. I have read the Parliament of Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Charter of Human Rights). I have formed the view that the whole concept of euthanasia is contrary to the Charter of Human Rights. I have formed this view for the reasons set out below in this annexure and I ask you and all of the members of the Parliament of Victoria to oppose all forms of euthanasia for the reasons set out in this annexure, as well as all other reasons in this report

7. Human rights—what they are and when they may Parliament should be protecting people’s Right be limited to life. (1) This Part sets out the human rights that Parliament specifically seeks to protect and promote. 7. Human rights—what they are and when they may There is no “choice” as the definitive basis for be limited “dignity” in this provision. (2) A human right may be subject under law only to such reasonable (a) right to life is supreme importance limits as can be demonstrably justified in a free and democratic (b) the suffering is less important than life society based on human dignity, equality and freedom, and taking (c) the extent is a total deprivation of the right into account all relevant factors including— to life. (a) the nature of the right; and (d) euthanasia and right to life are 100% (b) the importance of the purpose of the limitation; and opposed to each other. (c) the nature and extent of the limitation; and (e) there is fantastic and constantly improving (d) the relationship between the limitation and its purpose; and palliative care available as an alternative. (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. 7. Human rights—what they are and when they may No doctor has the right to kill a person who be limited has a right to life (3) Nothing in this Charter gives a person, entity or public authority a There is no “choice” as the definitive basis for right to limit (to a greater extent than is provided for in this Charter) “dignity” in this provision. or destroy the human rights of any person. 9. Right to life I do not see any right to die Every person has the right to life and has the right not to be arbitrarily This is not negotiable. deprived of life. Parliament must protect vulnerable people from having pressure put on them by family and others who would see this Right to Life trespassed in order to get rid of the person they want to see die. 10. Protection from torture and cruel, inhuman or degrading treatment A person must not be— Doctors who kill for their own interest in (a) subjected to torture; or extending ethical understandings are killing for (b) treated or punished in a cruel, inhuman or degrading way; or ideology of their own and thereby (c) subjected to medical or scientific experimentation or treatment experimenting without his or her full, free and informed consent. 14. Freedom of thought, conscience, religion and belief This freedom of choice should not be thought (1) Every person has the right to freedom of thought, conscience, to want to die, to kill themselves, even if that is religion and belief, including— their belief. (a) the freedom to have or to adopt a religion or Asserting that Christians, and people of other belief of his or her choice; and religions who oppose euthanasia for religious (b) the freedom to demonstrate his or her religion or belief in reasons are to “stand aside” or are not worship, observance, practice and teaching, either individually or as progressive enough is contrary to this human part of a community, in public or in private. right.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 17

Annexure 9.: The Majority Final Report Should Not be Accepted THE PARLIAMENTARY COMMITTEE’S FINAL REPORT 1. In my respectful submission, the Majority Report included in the Final Report should not be accepted by the Parliament of Victoria to the extent that it relates to and affirms euthanasia in any of its forms including assisted dying.

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism

(1) TOR (1) (1) assess the practices currently being Did not examine how a person’s faith utilised within the medical community to helps them, as a practice that encourages assist a person to exercise their preferences people in their pain, in the last days. Pain for the way they want to manage their end of cannot be avoided in some child birth, life, including the role of palliative care; but, the reward is a wonderful child. “TOR = Terms of Reference”

(2) TOR (2) (2) review the current framework of The Committee did not turn its mind to legislation, proposed legislation and other Belgium. relevant reports and materials in other Australian states and territories and overseas jurisdictions; and

(3) Chairs As former Supreme Court Judge John This is partisan; Forward Coldrey said, ‘these cases don’t sit This is argumentative comfortably in a court setting. The person goes out into society labelled a murderer This is highlighting an opinion over when their motive has been compassion and another love ... I’d like to see a regime where people who act in this way are not put at risk of criminal charges.’

(4) Chairs We were warned against change on the basis “Warned against” is argumentative and Forward of what, purportedly, has occurred in belittles against those who give the jurisdictions that have legalised assisted warning dying.

(5) Chairs To evaluate these claims, five members of The Committee did not turn its mind to Forward the Committee travelled to the Netherlands, Belgium. Switzerland, Canada and the US State of Oregon in late March to early April 2016. We met with academics, regulators, health care professionals, supporters and opponents of the different legalised assisted dying frameworks.

(6) Chairs We found no evidence of institutional “No evidence” hard to believe Forward corrosion or the often cited ‘slippery slope’. No reasons provided. Indeed, the regulatory framework has been What was considered not made public.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 18

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism unchanged in Oregon, the Netherlands and The Committee did not turn its mind to Switzerland for many years. Belgium.

(7) Chairs In recommending an assisted dying The Committee did not turn its mind to Forward framework for Victoria, the Committee has Belgium. sought to adopt the best elements of these jurisdictions and mould them to the Victorian context.

(8) Chairs Like in other jurisdictions, the Committee Opinion, based on what Forward anticipates that while a comparatively small “comparatively” to what? number of Victorians will die using the assisted dying framework (approximately 0.4 per cent of all deaths in Oregon and Switzerland), many others will take comfort from its existence, knowing that another option exists

(9) Chairs We were deeply moved by those who, Moved or swayed Forward despite suffering serious illness, had the They got a hearing courage to tell their personal stories.

(10) Executive In addition, the Committee travelled to the Not Belgium. summary Netherlands, Switzerland, the Canadian Mostly pro-death. province of Québec, Canada and Oregon, United States to speak to stakeholders about their jurisdiction’s assisted dying framework.

(11) Executive Prohibition of assisted dying is causing some Argumentative summary people great pain and suffering. It is also Opinion leading some to end their lives prematurely and in distressing ways.

(12) Executive The Committee rejects maintaining the status “head-in-the-sand approach: is not a summary quo as an inadequate, head-in-the-sand phrase used in chapter 8 and is an unfair approach to policy making and the plight of summary. This is argumentative and the Victorians discussed in this Report. opinionated against those who see the status quo as being what needs to be reinforced for good reasons.

(13) Executive The Committee’s research in Victorian and The Committee did not turn its mind to summary international jurisdictions has satisfied it that Belgium. the methods used in assisted dying are medically sound and help that small cohort of patients who want this option to achieve a peaceful death.

(14) Executive The evidence is conclusive that assisted How it is conclusive. summary dying can be provided in a way that guards against abuse and protects the vulnerable in

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 19

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism our community in a way that unlawful and Impossible to be conclusive if Belgium unregulated assisted dying does not. was not examined in detail. An omission renders results inconclusive.

(15) Executive The Committee chose not to focus solely on The broad spectrum of for and against is summary the arguments for and against legalising well known, may even be judicially assisted dying. noticed, however, the details must be examined and reasons for deciding for or against by the Committee must be provided.

(16) Executive These are well known and have been This paragraph is meaningless. summary addressed in many different reports and It says that its own processes are used and research papers, both in Australia and that is what counts so what ever they did internationally. The arguments put forward in was right because it was their own evidence to the Inquiry reflected these and processes. Does not say what their were consistent with arguments the processes actually were. Committee examined during its research process.

(17) Executive Chapter 8 It appears that the Committee has equated summary dying with “dignity” with dying The Committee’s research in Victorian and “peacefully” or dying in “peace”. international jurisdictions has satisfied it that the methods used in assisted dying are The Committee has only heard about medically sound and help that small cohort of people wanting people dye peacefully. patients who want this option to achieve a The Committee did not hear evidence on peaceful death. The evidence is conclusive if euthanasia assists people die in peace or that assisted dying can be provided in a way if it still is a painful death. It assumed that guards against abuse and protects the peaceful deaths result, but, not hear vulnerable in our community in a way that evidence or give any reasons for saying unlawful and unregulated assisted dying does that there is a peaceful ending. not. This is a fundamental failing of this report.

(18) 8.1 The proposed framework is a result of the The Committee did not turn its mind to Committee’s extensive research and Belgium. consultation process during the Inquiry. Did not make adequate enquiry with Christian organizations that oppose choice.

(19) 8.1 Concerns raised in arguments against The Committee did not turn its mind to legalising assisted dying — such as the Belgium. inability to implement and maintain effective safeguards — have not eventuated in jurisdictions where assisted dying is legal. The Committee did not find compelling

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 20

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism evidence to support the negative consequences predicted by these claims.

(20) 8.2 The evidence presented by the Coroner’s Why was this persuasive Court of Victoria was highly persuasive, and No specific examples of what was so revealed some disturbing examples of the disturbing. hidden damage that occurs.

(21) 8.2 The Coroner’s Court told the Committee that Why is dreadful? What is dreadful? some Victorians are ending their lives in What happened? dreadful ways.

(22) 8.2 While several submissions suggested that all There is no reason provided was to why pain and suffering can be alleviated through “all” is not correct. the provision of better palliative care,808 the There is no evidence shown that some Committee heard from health practitioners cannot be treated or the quantum of those that not all pain can be alleviated instances. Simply no reasons given. Other than to say someone who is a doctor (who favours choice) said so. Chapter 2 and 3 of the Final report talks mostly about sociological and financial pressures on the Palliative Care. The “pain” seems to be more on the system rather than in the bodies of people in the system. There is no assessment of what drugs and treatments are failing.

(23) 8.3.1 The status quo is, if not causing, then The disease or condition causes pain, the facilitating or allowing great pain. system does not. Please be honest.

(24) 8.3.3 The Committee heard extensive evidence And an insufficient from those who supporting legalising assisted dying through oppose this action. regulatory or legislative change.

(25) 8.3.3 Creating a new statutory framework to allow The Committee did not turn its mind to and regulate assisted dying under certain Belgium. conditions. See for example the approach taken in Oregon and other states in the United States, the Canadian province of Québec, the Netherlands and soon Canada

(26) 8.3.3 The Committee has considered these This is impossible to say when Belgium approaches carefully, through its examination was not properly considered by interviews of experiences of jurisdictions where these like elsewhere. approaches exist

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 21

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism Pro-euthanasia bias is not a “careful” consideration of approaches.

(27) 8.4 Recent publications from Canada, the United It is simply impossible to say ethical Kingdom, and here in Australia provided an issues have considered when there is no overview of the issues surrounding assisted treatment of religious ethical issues – dying both from an academic and ethical since they have been almost excluded. standpoint, and a practical implementation standpoint.

(28) 8.4 This paper summarised Australian law on Simply saying this report was relied upon assisted dying, arguments surrounding the is not satisfactory. Why and what part and issue, as well as laws and data from why is it superior to arguments to the jurisdictions that allow some form of assisted contrary. dying.

(29) 8.4 The Committee has also focused on Again, what medicine. describing how medicine and the law shape References to medicine is not a end of life experience for Victorians, and demonstration of reason for a conclusion. how this can be improved. The Committee recognises that there are a number of Victorians who wish to have the option of choosing assisted dying. The Committee’s Inquiry has led it to conclude that this option would reduce the extraordinary suffering they encounter at the end of life, and the toll this takes on loved ones.

(30) 8.4 Research into Victorian and international The Committee has been satisfied without jurisdictions has satisfied the Committee that visiting and properly considering the methods used in assisted dying are sound Belgium. and help that small cohort of patients who want this option to achieve a peaceful death.

(31) 8.4 The evidence is clear that assisted dying can If the evidence is clear, why was Belgium be provided in a way that guards against not honestly and fully considered. abuse and protects the vulnerable in our How will harsh personalities be community in a way that unlawful and controlled. unregulated assisted dying does not.

(32) 8.4 robust, transparent, accountable frameworks. The research process is not transparent – how can that build confidence in the outcome of the research, i.e. the legislation and the day to day practice.

(33) 8.4 The Committee travelled to jurisdictions that The Committee did not turn its mind to allow assisted dying to better understand how Belgium. it operates in practice. In discussions with

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 22

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism experts in the Netherlands, Canada, Switzerland and Oregon, the Committee developed a strong understanding of how and why these frameworks have, for many years, met the needs of those seeking another option at the end of life, in the context of robust medical systems.

(34) 8.4 The Australian Christian Lobby,828 the Suggested is a dismissive and belittling Catholic Archdiocese of Melbourne,829 term. Doctors Opposed to Euthanasia,830 the Largely prevented from appearing in Australian Catholic Bishops Conference,831 person and contesting issues. and the Australian Family Association,832 amongst others, suggested that safeguards in assisted dying frameworks cannot provide adequate protection for the vulnerable.

(35) 8.4 While their concerns about the safety of 1. The Committee has not shown vulnerable people and the need for them to be motivation to look for evidence by not protected are valid and should inform the interviewing opponents. design of any assisted dying framework, the 2. The Committee did not look too hard Committee did not find evidence to support these concerns. 3. The Committee did not say in this report 4. Who gave submissions against the introduction of euthanasia/ assisted dying 5. What the submissions were Why the submissions were considered to not be correct.

(36) 8.4 The Committee appreciates that there are Parliamentarians are entitled to rely on diverse views on the issues this Inquiry this report to inform their decisions and addresses and believes that Victorian law can thus this report should be comprehensive reflect this diversity. The Committee and honest, and it is not. considers that Parliament is best placed to represent such views and to enact reform to improve the end of life options for Victorians.

(37) 8.4 The law should enable the small percentage Did the Committee make a decision on of eligible Victorians who want help to end the risk of this small group of people their suffering to die surrounded by loved growing into a bigger group of people? ones, without fear of prosecution. The Committee did not turn its mind to Belgium.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 23

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism 6. The reasoning behind this is not provided and it is a denial of natural justice.

(38) 8.5 Finally, the Committee believes that the Please identify what “rights” are being needs of the patient must be squarely at the spoken of. centre of an effective framework. Ensuring There is two interpretations of rights in that the rights of patients are respected this paragraph: depends on the expertise and judgment of those working within the framework, (1) the right to die, ie the object of this particularly doctors. Committee is basically admitted, that this report is all about enforcing a right to die; or (2) this was not a reference to any specific rights, and is just another meaningless paragraph.

(39) 8.5 In saying this, the Committee supports the Why is there no quote from an opponent words of eminent palliative care specialist of assisted dying/ Professor Ian Maddocks AM: This is a bias. Rather than fighting a rear-guard action, I There is no objectivity in this part of the suggest the proponents of palliative care join report. forces with advocates of assisted dying, and with mutual respect and dialogue ensure that Lets see an argument from a pastor who enabling laws are framed with a care and comforts people with God or even that precision that allows no abuse and promotes pain relief is achievable without killing. best outcomes.838

(40) Appendix Why was “Christians Supporting Choice for Doctors against euthanasia should have 2 Voluntary Euthanasia’ and “Doctors for been given a hearing also. Not just written euthanasia” given a chance to be interviewed submissions read and ignored. at a hearing on 13 October 2015 without being countered.

(41) Appendix The hearings overseas appear to be pro- There appears to be no willingness to 2 euthanasia orientated. Dignitas! Royal Dutch consider opponents of euthanasia. institutes …

(42) Appendix Public opinion favours legalising assisted Long standing public support. A.7 dying This is a bold assertion that is self serving. A7.4.9 There is a long-standing history of strong South Australia has seen 14 defeats of public support for assisted dying in certain bills. circumstances. In Australia, opinion polls have consistently shown public support for The evidence that is put together by assisted dying. organisations is unsupportable by the majority of people.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 24

Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism

(43) Table A7.1 Assisted dying opinion poll results referred to Why is it that the percentages are in evidence(a) published and the numbers included in the survey are not shown. Polling body Year Result For example the Australia Institute report/ Essential Media 2015 73 per cent poll of 2011 had only 1433 responders Communications support(b) and many opposed assisted suicide/ euthanasia. Fairfax Ipsos 2014 76 per cent Also, it was admitted by the Australia support(c) institute that many people did not understand the issues in giving their ABC Vote Compass 2014 76 per cent answer. support(d) The lack of application of figures and Australia Institue 2012 greater than 70analysis per of the data shows the Committee cent support(e)was not careful, or consider the facts and evidence as often claimed in this Final Newspoll 2012 82 per cent Report. support(f) Is this the “Victorian values” that the Committee relies so heavily upon. This Australia Institute 2011 75 per cent evidence is unreliable because the sample support(g) sizes are small and the two Newspoll reports were done for pro-euthanasia Newspoll 2009 85 per cent supportorganisations.

(44) Table A7.1 (a) Note the precise question/s asked varied The sample size, the question and the across polls. All polls national except Vote knowledge of the person questioned Compass 2014 (Victoria only) and Fairfax must be examined and the result Ipsos poll 2014 (Victoria only). “weighted” or entirely dismissed accordingly. See below

(45) Table A7.1 (b) Essential Media Communications, The sample size, the question and the ‘Voluntary euthanasia’, viewed 6 April 2016, knowledge of the person questioned . must be examined and the result “weighted” or entirely dismissed accordingly. See below

(46) Table A7.1 (c) Julia Medew, ‘Fairfax Ipsos poll: 3 out of The sample size, the question and the 4 Victorians support people being given knowledge of the person questioned must assistance to die if they want to’, The Age, be examined and the result “weighted” or 14 November 2014, viewed 6 April 2016, entirely dismissed accordingly. See below .

(47) Table A7.1 (d) Guy Stayner, ‘Victorian election 2014: The sample size, the question and the Electorate overwhelmingly back voluntary knowledge of the person questioned must euthanasia, Vote Compass reveals’, ABC, 24 be examined and the result “weighted” or November 2014, viewed 6 April 2016, entirely dismissed accordingly. See below .

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Table of Criticisms of the majority report in the “Final Report”

Item Clause Text Criticism

(48) Table A7.1 (e) ‘Survey shows support for legalised The sample size, the question and the euthanasia’, ABC, 16 November 2012, knowledge of the person questioned must viewed 6 April 2012, . be examined and the result “weighted” or entirely dismissed accordingly. See below

(49) Table A7.1 (f) Natasha Egan, ‘Wide support for The sample size, the question and the euthanasia: Poll’, Australian Ageing Agenda, knowledge of the person questioned must 6 December 2012, viewed 6 April 2016, be examined and the result “weighted” or . entirely dismissed accordingly. See below

(50) Table A7.1 (g) Adele Horin, ‘Euthanasia wins 75% The sample size, the question and the support’, Sydney Morning Herald, 6 January knowledge of the person questioned must 2011, viewed 6 April 2016, be examined and the result “weighted” or . entirely dismissed accordingly. See below

(51) Table A7.1 (h) AAP, ‘85 per cent support voluntary The sample size, the question and the euthanasia — Poll’, The Australian, 26 knowledge of the person questioned must October 2009, viewed 6 April 2016, be examined and the result “weighted” or . entirely dismissed accordingly. See below

(52) Appendix A7.6 Counter-arguments to those against Why are there four counter arguments 7 legalising assisted dying 312 included to counter opposition to euthanasia compared to only one to Cl 7.6 A7.6.1 Refuting the slippery slope and counter pro-euthanasia. risks to vulnerable people argument 312 The disparity of the amount of counter A7.6.2 Refuting the diminished argument was: investment in palliative care argument 312 1 Deliberate; A7.6.3 Refuting the argument against 2 Bias legislating for a small number of people 3 Only possible if argument against 313 euthanasia is not considered. A7.6.4 Refuting the argument that a 4 shows the Final Report is not request for assisted dying is irrational 313 reliable and should not be accepted by A7.7 Counter-argument to those for anyone legalising assisted dying 313 A7.7.1 Refuting the autonomy argument 313

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 26

Annexure 10.: The Final Report: Summary Booklet Should Not be Accepted 1. In my respectful submission, the Final Report: Summary Booklet should not be accepted by the Parliament of Victoria to the extent that it relates to and affirms euthanasia in any of its forms including assisted dying. I hold this for the following reason:

(a) The terms of reference were not complied with because Belgium was not considered nor was the negative evidence in the jurisdictions that were considered

(b) The Chair’s forward provided a statement of a critical issue which was not followed by the committee

“Continuous palliative sedation is widely accepted as an appropriate way to relieve suffering for someone at the end of life. However, unlike some jurisdictions, its use is not centrally recorded, the extent of its use is unknown, and no guidelines exist to regulate it. This should change to provide direction for doctors and to improve transparency. “

It is this lack of transparency that allows doctors to kill, which all parties admit is being done.

(c) The setting out of the alleged need to for laws to allow assisted dying are given in the context of following the above paragraph which really says it is a killing being done in an unregulated way – not choice, not to relieve paid. This is no excuse for allowing euthanasia, the criminal law and the regulation suggested in the above paragraph are the proper solutions.

Laws regarding providing assistance to die are inconsistent. On one hand, doctors, on a patient’s request, can withdraw life sustaining treatment with death the certain outcome, while they can also deliver lethal doses of morphine and other drugs, as long as the intent is to relieve pain. On the other hand, a loving husband who assists his frail, suffering and near death wife to die could be guilty of murder, while a person near death and in unacceptable pain, cannot receive help to end their own suffering.

(d) The following paragraph is more of a concern, as this is more evidence that the “safeguards” will not be enforce with much enthusiasm.

The legal system in Victoria understands these inconsistencies. Despite significant examples of death taking place in the shadows of the law, prosecutions are rare and the penalties applied are generally so light as to risk undermining the law. Indeed, in the case of DPP v Rolfe, Justice Cummins said to Bernard Rolfe, after he pleaded guilty to manslaughter and received a two year suspended sentence, ‘your actions do not warrant denunciation; you should not be punished; there is no need to deter you from future offences ...’.

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(e) Likewise with the above paragraph, the following paragraph, quoted by the Committee Chair, is more evidence that safeguards will not be enforced by judges with much enthusiasm, let alone police or people who profit/ benefit (family, beneficiaries and doctors who earn fees) from the deaths of others.

“As former Supreme Court Judge John Coldrey said, ‘these cases don’t sit comfortably in a court setting. The person goes out into society labelled a murderer when their motive has been compassion and love ... I’d like to see a regime where people who act in this way are not put at risk of criminal charges.”

(f) The Summary Booklet does not state what exactly what that warning was and why it was not heeded.

“We were warned against change on the basis of what, purportedly, has occurred in jurisdictions that have legalised assisted dying. To evaluate these claims, five members of the Committee travelled to the Netherlands, Switzerland, Canada and the US State of Oregon in late March to early April 2016. We met with academics, regulators, health care professionals, supporters and opponents of the different legalised assisted dying frameworks.”

(g) The claim that there was no slippery slope is of no value as they did not look at all of the evidence.

While these jurisdictions differ significantly in their assisted dying models, what they all have in common is robust regulatory frameworks that focus on transparency, patient-centred care and choice. We found no evidence of institutional corrosion or the often cited ‘slippery slope’. Indeed, the regulatory framework has been unchanged in Oregon, the Netherlands and Switzerland for many years.

(h) The trip was no very little merit as they either never changed their opinion or they just did not look at the evidence they did not want to consider.

Given the conflicting evidence regarding practices and occurrences in these jurisdictions, the trip was very important for developing an understanding of the facts about how these systems work.

(i) Again, the trip was no very little merit as they either never changed their opinion or they just did not look at the evidence they did not want to consider.

In recommending an assisted dying framework for Victoria, the Committee has sought to adopt the best elements of these jurisdictions and mould them to the Victorian context. The proposed model contains several significant checks and balances that seek to protect individuals from exploitation, while facilitating choice in certain limited circumstances.

(j) Again, the trip was no very little merit as they either never changed their opinion or they just did not look at the evidence they did not want to consider.

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The Committee has sought to strike an appropriate balance between respecting the end of life choices of Victorians while recommending a sufficiently robust eligibility framework for competent adults that protects against abuse.

(k) In the Executive Summary, the key following “key findings” are unacceptable

 Prohibition of assisted dying is causing some people great pain and suffering. It is also leading some to end their lives prematurely and in distressing ways. My Response: Firstly, This is wrong because the prevention of dying does not cause suffering, the suffering is there as a result of the condition that will kill the person; Secondly, “Great pain’ is not what causes most people to wish to end their lives through euthanasia Thirdly, The Distressing ending of lives are very minimal but get a lot of air play. Pain was not what the committee considered dignity to be.  Instances of assisted dying are rare, even in jurisdictions where it is legal. Assistance in dying is, in the vast majority of cases, provided to people in what would otherwise be the final weeks of their lives. My Response: Firstly, The Committee did not consider all of the jurisdictions Secondly, The Committee did not consider the worst of the worst Thirdly, “vast majority” is contested. Fourthly, the meaning of “vast majority of cases, provided to people” is a tricky statement, as it does not say that when it is offered it is offered only in the final weeks of a person’s week. It can mean that of the people who are in the final weeks, the vast majority of them are offered euthanasia. What is really being said here? Please explain.  Government support and funding of palliative care has not declined when assisted dying frameworks have been introduced. My Response: This does not justify assisted dying at all.  Courts invariably impose lenient penalties without jail time on people who assist a loved one to end their life. This is true in Australia and in similar overseas jurisdictions. My Response: Firstly, this does not justify assisted dying at all. Secondly, courts should change their attitude, they will not do when legislation does not require them to do so.  Everyone’s end of life care needs differ. It is important that Victoria has a system in place to cater for the needs of individuals, whilst ensuring that there are safeguards in place to protect vulnerable people.

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My Response: Firstly, this is the “choice” argument thinly veiled. Secondly, It is not important for Victoria to have a system that is open to abuse when uncontrolled. The need of individuals to be safeguarded by 100% preventing abuse.

(l) the “Core values for end of life care ” do not amount to validity of assisted dying.

Vulnerable End of life care should focus on The only way that this is can be guaranteed is people should relieving pain and suffering. to avoid legalising euthanasia. be supported Safeguards need to be in place to This goal can be achieved by giving greater and protected ensure that vulnerable people are not resources and powers to police to enforce pressured or coerced into making murder charges against doctors who kill. decisions that they do not want to.

The law Health practitioners and patients The greatest clarity is to say that if you kill, should be should be fully aware of their legal you go to jail. coherent and rights and responsibilities in end of life This goal can be achieved by giving greater transparent care. resources and powers to police to enforce murder charges against doctors who kill.

The law The purpose of end of life legislation The only way that this is can be guaranteed is should be should be to provide for end of life to avoid legalising euthanasia. followed and choices for patients and protection for This goal can be achieved by giving greater enforced doctors. Breaches of laws should be resources and powers to police to enforce penalised appropriately. murder charges against doctors who kill.

(m) In Chapter 8, the following reference is misleading and deceptive, because the research was not what it is claimed to have been. The research and consultation process was NOT “extensive”. It was self serving, and deliberately excluding of the worst of the worst evidence and did not provide a rigiourous assessment of the for and against arguments. It relied on emotional oral testimony which was what the Majority wanted to hear.

“The proposed framework is a result of consideration of the advice provided to the Committee during an extensive research and consultation process. “

(n) There is no logical, legal, factual, emotional or philosophical reason for doing nothing, and the allegation that doing nothing was a head in the sand is both rude, and wrong. That putting more resources into

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 30

palliative care is not able to described as either “doing nothing’ or putting one’s “head in the sand” and belittles the work being done in this regard. There is no case made out for why this is not sufficient bar the very few cases where palliative care cannot prevent all of the patient’s pain. More alarmingly, this attitudes give an air of wanting to do something to something to show that the Andrews Labour government is doing something for Victorians – ie political glory for Daniel Andrews means bringing this legislation into Victoria (before New South Wales does preferentially). The following is entirely unacceptable

“The Committee rejects maintaining the status quo as an inadequate, head-in-the-sand approach to policy making and the plight of the Victorians discussed in this Report.“

(n) This is an admission that the Committee’s majority did not consider Belgium. This is case over for the Majority and for Recommendation 49.

“The Committee’s research in Victorian and international jurisdictions has satisfied it that the methods used in assisted dying are medically sound and help that small cohort of patients who want this option to achieve a peaceful death. The evidence is conclusive that assisted dying can be provided in a way that guards against abuse and protects the vulnerable in our community in a way that unlawful and unregulated assisted dying does not.”

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Annexure 11.: The Discussion Paper Should Not be Accepted 1. In my respectful submission, the Discussion Paper should not be accepted by the Parliament of Victoria to the extent that it relates to and affirms euthanasia in any of its forms including assisted dying. This is for the following reasons:

Introduction by the Health Minister (a) In the introduction by the Health Minister, the word “values” in the following sentence, and the emphasis in the Final Report and the basis of recommendation 49 being consistent with the values of people in Victoria gives an arguable inference that this desire of the “Andrews Labour Government” to give people a system of assisted dying is being done to satisfy their values in disregard of the risks and the evidence that was not consistent with peoples’ “values”.

The Andrews Labor Government believes that all Victorians are entitled to high quality end of life care, consistent with their preferences and values.

(b) The limited nature of how assisted dying is to be granted is not consistent with the evidence of how it is done overseas and does not state “final weeks”

“… in limited circumstances, the option of voluntary assisted dying for those with a terminal illness who are dealing with unbearable suffering.”

(c) The words “must” and “choice” (Minister’s Comment) in this introduction show the inference of a policy which was dictated to the committee and the majority has cooperatively followed.

“The reality for some Victorians who are at the end of their lives is that even the best palliative care will not relieve pain. We must follow the lead of other countries and do more to give people with terminal illness genuine choice at the end of their lives.”

The Minister’s Comment is objectionable because

(i) It provides an opportunity for the Minister’s opinion to be expressed to the community in a document which is expected to be objective;

(ii) This issue of assisted dying/ euthanasia is a major policy for the ALP, and a defeat on this issue would be political of some note, and, the Minister’s Comments should not be used to sure up support for this policy at the expense of those who will die under this policy – particular where this policy is not administered in accordance with the any legislative instrument:

(iii) It is not countered by any other politician having their person opinion as to the negative;

(iv) It suggests a conclusion as to how to interpret evidence of other jurisdictions, and that conclusion is highly contentious; and

(v) In a context where opponents of assisted dying/euthanasia do so on account where:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 32

(1) Trust in doctors and the medical fraternity is questioned;

(2) Trust in government departments to administer these deaths is questioned; and

(3) Trust in the intentions, motives and actions lobbying of certain individuals and organizations is also questioned

(d) The following statement shows an admission that the Majority of the Committee made a recommendation (that is Recommendation 49) with an aspiration or an ideal that there would be safeguards, but, did not at the time that they made Recommendation 49, know what, or how those safeguards would look like. This is an example of the Majority of the Committee making a decision and then someone else making it work. This also shows that there was no substance or evidence relied upon by the Majority of the Committee and thus they are not able to say if their Core requirements to keep people safe will be met by the safeguards they saw, or, the safeguards to be later developed which were known or knowable by the committee as and when Recommendation 49 was made. Therefore the Recommendation 49 being safe was mere conjecture and mothing more and should not be accepted.

“The Committee has provided a clear framework for assisted dying legislation, however, further work needs to be undertaken to design a workable scheme with strong safeguards and protections for the vulnerable.”

(e) The following phrase is merely meaningless other than it evidences the knowledge that abuse does happen:

“This Discussion Paper is part of the consultation process, identifying key issues and questions that will help guide decision making to create a compassionate legislative framework that is workable and includes strong safeguards.”

(f) The Health Minister has admitted at the conclusion of her introduction that the issue of palliative care not being able to treat the pain of patients is not as big a problem that people make out and therefore, like Mr Daniel Mulino said in his minority report, the risk far outweights the benefit.

“the model put forward will be one that protects every Victorian while providing the genuine choice a very small number of Victorians will seek at the end of their lives.”

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The Chairman’s Foreword

(g) There is an alarming concern about protection for doctors. The evidence shows me that doctors need to be called to account:

“… dying legislation with proper safeguards for all Victorians, including doctors.”

(h) The core value of “diversity, culture and values” for which the Andrews Labour Government wants to become known should not be dictating the policy on euthanasia. It is again stated as being one of a core set of “principles”:

“That the development of the legislation will be applied in a way that respects the diversity of culture and values of Victorians.”

2. In my written submission to the Ministerial Advisory Panel, I provided a response to the substantive issues raised in the Discussion Paper.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 34

Annexure 12.: The MAP Interim Report Should Not be Accepted 1. In my respectful submission, the MAP Interim Report should not be accepted by the Parliament of Victoria for the following reasons:

(a) Unlike the final report, it does not list out the identity of those who made submissions – I do not know if my submissions were considered. Maybe the strength of my submissions motivated the committee to not want to list out the identity of people who made submissions.

(b) I consider the following statement to be a white washing of the negative argument. I am a stakeholder I like to believe, or maybe I was not afforded that status as I am not in Victoria and I am not involved in the medial industry. I consider my arguments to have been whitewashed away.

“Stakeholders strongly endorsed the government’s commitment to end-of-life care reform. This included promoting access to high-quality palliative care, as well as the right to consent and refuse medical treatments through advance care directives. It was acknowledged that it is important to develop voluntary assisted dying legislation within this context.”

(c) I believe that Emeritus Professor Ian Maddocks AM should not have been either, to make submissions to the Committee or not have been on the MAP. There is a perception of undue influence on the Parliament and the outcome of the inquiry into end of life choices. The Final Report cites him with great adulation and then he is on the MAP as a member. Mr Maddoocks AM is cited with approval by the majority as follows, at clause 8.5 (page 216) of the Final Report

“In saying this, the Committee supports the words of eminent palliative care specialist Professor Ian Maddocks AM:

Rather than fighting a rear-guard action, I suggest the proponents of palliative care join forces with advocates of assisted dying, and with mutual respect and dialogue ensure that enabling laws are framed with a care and precision that allows no abuse and promotes best outcomes.838 “

Ian Maddocks, ‘Letter to the editor’, The Monthly, viewed 27 February 2016, .

Respectfully, there needs to be questions about the independence of the selection of Professor Maddocks AM and if the selection of him and prioritizing of his evidence was not done to achieve a desired outcome. The bias of witnesses has been expressly referred to by Inga Peulich, in her minority report.

(d) The MAP, at least at this preliminary stage, whitewashed the legal issues that were included in my Submissions, which suggested that there was no guarantee that the courts would not read down the safeguards or find that the safeguards were non-existent due to the drafting of the same. I would like to think that the following paragraph is a reference to the submissions I made, however, I cannot be confident.

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“Views were less clear when it came to determining some of the practical implementation issues of design for the legislative framework. The opportunity to discuss and work through the diverse views and complexities in the consultation forums and roundtable discussions was very informative and enabled the Panel to test its thinking”

(emphasis mine)

(e) I did not attend any forums, for three reasons:

(i) I live in New South Wales;

(ii) I did not realise that in person forums were being held for this second stage; and

(iii) I did not know when the forums were being held.

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Annexure 13.: The MAP Final Report Should Not be Accepted 1. In my respectful submission, the MAP Final Report should not be accepted by the Parliament of Victoria for the following reasons:

IN MY VIEW,

WHEN A PRISONER ESCAPES FROM JAIL, GETS OVER, UNDER OR THROUGH THE WALLS THAT SAFEGUARD THE COMMUNITY, THE COMMUNITY, THE PRISON GUARD AND THE CORRECTIONAL SERVICES MINISTER ALL WANT TO KNOW WHY, HOW AND WHO HELPED.

WHEN THE SAFEGUARDS ON EUTHANASIA FAIL, THE SAME REPORTING SHOULD TAKE PLACE. THAT IT IS NOT MEANS THAT THE SAFEGUARDS WILL FAIL TIME AND TIME AGAIN AND AGAIN.

TO MERELY USE THE SAME SAFEGUARDS, OR MAKE LONGER JAIL TIME FOR NON- COMPLIANCE, WILL NOT PREVENT THE SAME HOLES IN THE FENCE FROM DEVELOPING.

(a) The MAP Final Report focuses only on safeguards that are theoretical, it does not focus on examples when the safeguards have failed, why they failed and what will be done to prevent them failing.

(b) The MAP Final Report is liable to the same accusation made by Mr Daniel Mulino about the Majority of the Committee’s Final report that this MAP Final Report simply “side steps” the problems which have occurred.

(d) Likewise with the Final Report, there is an insufficient demonstration of how the MAP arrived at their conclusions. That is:

(i) there is no listing of people or organizations who made oral or written submissions;

(ii) there is no comparison of competing arguments;

(iii) there is no comparison of personal testimony of suffering compared to objective quantification of that testimony on an objective scale, all people that their suffering is the worst that anyone could hope to bare.

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(iv) there is no demonstration that the MAP did not act under dictation from the Premier or the Health Minister.

(d) The MAP did not consider the possibility that Recommendation 49 may be impossible to safely implement; and

(e) The MAP listing out a long list of documents referenced does not show how the competing evidence within them.

(f) Recommendation 2, appears to be a choice argument and not based on pain at all.

“A person’s autonomy should be respected.”

MAP Recommendation 1: The iceberg that sinks the Titanic

(g) The MAP has scuttled the whole assisted dying campaign for and on behalf of the Premier, the health Minister, the Majority of the Committee and the Parliament of Victoria. The MAP did this by making the following recommendation:

Recommendation 1

Providing people with genuine choices must be balanced with the need to safeguard people who might be subject to abuse.

(i) Given that it is widely admitted that the amount of suffering that cannot be prevented through palliative care is very small, the amount of choice, according to the MAP’s recommendation above is likewise only needing to be very small. That means the offering of an option which has a disproportionate amount of risk such as euthanasia is to “be taken off the bargaining table”, i.e. not to be offered as that would be disproportional.

(ii) Mr Daniel Mulino in his minority report stated that the amount of suffering that cannot be treated by palliative care is disproportionate to the risk;

2.3 Very few people ask to be killed – especially if they are aware of care options Dr Ranjana Srivastava recently wrote an internationally acclaimed book, “Tell me the truth” dealing with the meaning of a good life and good death and the ethics of end-of-life interactions. She is an oncologist with considerable experience and adjunct associate professor in the Monash University Faculty of Medicine, Nursing and Health Sciences. Dr Srivastava gave evidence to the Committee in relation to the issue of how often people seek active intervention by a doctor to end their life:

Dr Srivastava: … from 15 years of experience … the most informed I can tell you is that in all my career there have been no more than two or three people at most, in

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 38

the thousands of patients I have seen, who have said, ‘I have had enough. I want to die.’10

(iii) The Health Minister, as cited above, in her Introduction to the Discussion Paper admitted that there was very few people who would need assisted dying – possibly as reason to make the step palatable to the person on the street if she should assure everyone that not many people are going to be killed, but still, that is the assertion she has made so she must stand by it; and

(iv) The Majority of the Committee themselves said that the amount of people who cannot be assisted by palliative is going to be small:

A key message of this Report is that for a small number of Victorians, the current law inhibits good medical practice, and leads to outcomes that do not align with community values.

(See clause 1.3 on page 9)

Research into Victorian and international jurisdictions has satisfied the Committee that the methods used in assisted dying are sound and help that small cohort of patients who want this option to achieve a peaceful death.

(See clause 8.4 on page 212)

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(h) The MAP has not, despite their recommendations, recommended any solutions to the problems that the courts have, in Victoria, bothered themselves to give anywhere near like the maximum sentence for killing at end of life situation. The Committee has provided the following table at page 174 of the Final Report. The disturbing reality, and disturbing consistency, is that no one has ever been sent to jail. Doctors, who will be seen as being valuable to the community for their potential to provide medical services, will never be locked away from the community. Even worse, the MAP has made a recommendation for the Doctors to be given greater immunity.

Table 6.2 Victorian cases relating to assisted dying

Case Year Charge Maximum Sentence penalty Hollinrake 1992 Attempted murder 25 years’ 3-year good behaviour imprisonment bond DPP v Riordan 1998 Attempted murder 25 years’ 3-year good behaviour imprisonment bond R v Marden 2000 Manslaughter by 10 years’ 2-year suspended suicide pact imprisonment sentence R v Hood 2002 Aiding and abetting 5 years’ 18-month suspended suicide imprisonment sentence R v Maxwell 2003 Aiding and abetting 5 years’ 18-month suspended suicide imprisonment sentence DPP v Karaca 2007 Attempted murder 25 years’ 3-year suspended imprisonment sentence DPP v Rolfe 2008 Manslaughter by 10 years’ 2-year suspended suicide pact imprisonment sentence DPP v Nestorowycz 2008 Attempted murder 25 years’ 2 years and 9 months imprisonment suspended sentence Victor Rijn (unreported) 2011 Inciting suicide 5 years’ 3-year good behaviour imprisonment bond R v Klinkerman 2013 Attempted murder 25 years’ 18-month community imprisonment corrections order

(i) The Commentary provided on page 184 of the Majority’s Final Report where admissions are made that doctors kill and know that they are doing it, makes me ask the following questions: (i) Is this whole inquiry orchestrated to assist doctors, and complaints about patient pain a pretense? (ii) Is the avoidance of Belgium being done to avoid consideration of doctors killing? (iii) Are “values” being considered to distract attention from Doctor’s killing? Refer Final Report, page 184: “Dr Edward Brentnall, MBE, OAM, told the Committee in his submission that he and other doctors act to end patients’ lives: Many doctors have acted to end patients’ lives when their suffering is due to an incurable illness. I have certainly done so.739” Refer Final Report, page 184: “Professor Hal Swerissen of the Grattan Institute agrees that people are assisted to die all the time: We currently allow voluntary euthanasia, but we have it hidden. It happens all the time, in fact, that people are assisted to die.740”

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I have prepared this table basically for one reason and one reason only, that reason is as follows: If the non-compliance has happened once, then it can happen again and often – even in Victoria and NSW.

Table of Assessment of the MAP Final Report’s Recommendations Particulars Implementation Issue Overseas ## Implementation Failure Recommendation 1 This goes without saying, and, This attitude of the value of human That the following principles cuts both ways. That is, even a life has not stopped family coercion are included in the legislation person who is ill, costly to or doctors from not bothering to N 01 to help guide interpretation: maintain in their old age or ill give advice as to alternatives to • Every human life has equal health is equally valuable as the dying. value. rich person who pays lots of tax. Recommendation 1 This sounds like a choice is This sounds like choice is N 02 • A person’s autonomy paramount and presumes an paramount no matter the should be respected. outcome. implications or the cost. Recommendation 1 “about medical treatment The alternative treatment is not at • A person has the right to be options,” can be interpreted all valuable if it is not pushed by the supported in making properly benignly or malignantly I will doctor or if the alternative is so informed decisions about give the MAP the benefit of the expensive that the person decides to their medical treatment and doubt on this clause. die instead. Consider the Wagner N 03 should be given, in a manner case. Consider Oregon where health that they understand, insurance covered death but not information about medical treatment. treatment options, including comfort and palliative care. Recommendation 1 And Doctor should not take it Oregon alternatives are often • Every person approaching upon themselves to kill their considered too expensive. the end of life has the right to patients. Holland and Belgium is moving N 04 quality care to minimise their towards involuntary euthanasia. suffering and maximise their This ideal does failed to prevent quality of life. Kate Cheney. Recommendation 1 This relationship should not be Oregon, there is an appalling lack of • The therapeutic relationship abused. doctor involvement. between a person and their N 05 health practitioner should, wherever possible, be supported and maintained. Recommendation 1 No problem with open Oregon, there is an appalling lack of • Open discussions about discussions. doctor involvement. Dialogue has death and dying and peoples’ The emphasis on “values” not saved. N 06 preferences and values appears to be trying to justify Oregon, Canada and Washington, should be encouraged and autonomy and choice as dignity, lack of reporting cannot prove this promoted. like the Final Report. occurred. Recommendation 1 This implies “decisions” should Oregon, there is an appalling lack of • Conversations about be supported which is subtle doctor involvement. Dialogue has treatment and care speak about decision for not saved. preferences between the euthanasia should be supported. Oregon, Canada and Washington, N 07 health practitioner, a person lack of reporting cannot prove this and their family, carers and occurred. community should be supported.

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Recommendation 1 This is the recommendation that Oregon, there is an appalling lack of • Providing people with SINKS the TITANIC. There is doctor involvement. Dialogue has genuine choices must be very little need for euthanasia not saved. balanced with the need to and the FINAL REPORT even Oregon, Canada and Washington, N 08 safeguard people who might admits the same. So does the the lack of reporting leads to the be subject to abuse. HEALTH MINISTER. reasonable conclusion that there is more abuse than we really know. This overbalances the reality towards more abuse and benefit. . Recommendation 1 This is values again, and this can Oregon, Holland, Belgium, Canada, All people, including health be seen as the MAP taking who said that the respect was shown practitioners, have the right dictation from other policy of to the people who did not even get N 09 to be shown respect for their the Andrew Labour their deaths accurately recorded, culture, beliefs, values and Government, spoken and/ or who knows what happened to make personal characteristics. written policy. them feel they are best to die. Recommendation 2 This will be ignored as and Oregon, Holland, Belgium – see That to access voluntary when convenient to do so or failures of these models. N 10 assisted dying, a person must when a doctor wishes to do so meet all of the following for philosophical reasons. eligibility criteria: Recommendation 2 That is what they said in Oregon, Holland, Belgium – see N 11 • be an adult, 18 years and Belgium. failures of these models. over; and Recommendation 2 That is what they said in Oregon, Holland, Belgium – see • be ordinarily resident in Oregon. People will move and failures of these models. N 12 Victoria and an Australian others will claim discrimination citizen or permanent and encourage VAD in other resident; and states to avoid prejudice. Recommendation 2 I should hope so. The capacity Oregon, Holland, Belgium – see • have decision-making will be reduced when they are failures of these models. N 13 capacity in relation to depressed but that will see voluntary assisted dying; and euthanasia happen still. Recommendation 2 That is how it starts. Like a new Oregon, Holland, Belgium – see • be diagnosed with an relationship, both people are on failures of these models. N 14 incurable disease, illness or best bahaviour at first. medical condition, that: Recommendation 2 Advanced, like D-Day less 12 Oregon, Holland, Belgium – see N 15 – is advanced, progressive months, that is not imminent. failures of these models. and will cause death; and Recommendation 2 Advanced, like D-Day less 12 Oregon, Holland, Belgium – see – is expected to cause death months, that is not imminent. failures of these models. N 16 within weeks or months, but The most costly 12 months and Oregon, is only 6 months. Oregon not longer than12 months; burdensome 12 months!!!! rejected 12 months. Recommendation 2 This is subjective to the person, Oregon, Holland, Belgium – see – is causing suffering that and that is easily able to be failures of these models. cannot be relieved in a pressured by family who want to N 17 manner the person deems see the dying person finish off tolerable their live so they can live with theirs. Recommendation 3 The 12 months is so excessive Oregon, Holland, Belgium – see That the capacity test in the that the threshold is very low. failures of these models. N 18 Medical Treatment Planning and Decisions Act is used to

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assess a person’s decision- making capacity in relation to voluntary assisted dying. Recommendation 4 Doubt can be over ridden by a Overseas has doctor shopping to get That when an assessing doctor who does not act medical opinions. medical practitioner is in correctly including when The pro-euthanasia lobby groups doubt about whether a person pressured to so act. like C&C direct patients to doctors has decision-making capacity who will support the choice for N 19 in relation to voluntary dying. assisted dying, a referral must be made to an appropriate specialist for assessment. Recommendation 5 But mental illness will be a Overseas has doctor shopping to get That mental illness does not motivator for doctors who take a medical opinions. satisfy the eligibility criteria compassionate approach to The pro-euthanasia lobby groups for access to voluntary justifying killing their patient. like C&C direct patients to doctors N 20 assisted dying, nor does Mental illness is reason for who will support the choice for mental illness exclude a atheists wanting to committee dying. person from eligibility to infanticide – see Dr access voluntary assisted Woolnough’s 1973 paper. dying. Recommendation 6 But disability will be a Overseas has doctor shopping to get That disability does not motivator for doctors who take a medical opinions. satisfy the eligibility criteria compassionate approach to The pro-euthanasia lobby groups for access to voluntary justifying killing their patient. like C&C direct patients to doctors N 21 assisted dying, nor does Mental illness is reason for who will support the choice for disability exclude a person atheists wanting to committee dying. from eligibility to access infanticide – see Dr voluntary assisted dying. Woolnough’s 1973 paper. Recommendation 7 So what, the pressure or Kate Cheney, pressure and coercion. That a request for access to coercion is going to predate this voluntary assisted dying, or request even if it the request is C&C can and do can pressure for information about not made by those who are people into making this request. N 22 voluntary assisted dying, can applying the pressure for the only be initiated by the person to die. That is, the C&C can and do direct patients to person. Requests cannot be request may be made under the doctors who will take any comment initiated by others, including influence of pressure that is as a request and induce the request. family and carers. unseen by the doctor. Recommendation 8 So what, the will. Especially if Kate Cheney, pressure and coercion. That a health practitioner they are known for offering this cannot initiate a discussion option. C&C can and do can pressure about voluntary assisted people into making this request. dying with a person with This safeguard will be redundant whom they have a when a patient will go to the C&C can and do direct patients to therapeutic relationship. doctor because they know that doctors who will take any comment N 23 Policy intent that doctor is a killing doctor. as a request and induce the request. To ensure a person is not coerced or unduly influenced One may even foresee and a into accessing voluntary manipulative family member assisted dying and to may make the introduction to a demonstrate the request for known killing doctor. voluntary assisted dying is

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the person’s own voluntary decision. Recommendation 9 Does that mean that the rules for Kate Cheney, pressure and coercion. That a request for a request do not apply information about voluntary C&C can and do can pressure assisted dying does not people into making this request. N 24 constitute a first request. C&C can and do direct patients to doctors who will take any comment as a request and induce the request. Recommendation 10 Should hope the request can be Kate Cheney, pressure and coercion. That the person may withdrawn and this should be withdraw from the voluntary done without any fees or C&C can and do can pressure assisted dying process at any penalties. people into making this request. time. When the person withdraws from the C&C can and do direct patients to N 25 voluntary assisted dying doctors who will take any comment process, they must as a request and induce the request. commence the process from the beginning if they decide to make a subsequent request for voluntary assisted dying. Recommendation 11 If this means ensuring clear Kate Cheney, pressure and coercion. That the legislation support communication and nothing access to voluntary assisted more then that is to be advised. C&C can and do can pressure dying for people who are people into making this request. from culturally and Coercion knows no cultural linguistically diverse barriers. C&C can and do direct patients to backgrounds and for people doctors who will take any comment N 26 who require alternative as a request and induce the request. means of communication, by allowing appropriately accredited, independent interpreters to assist them to make verbal and written requests for voluntary assisted dying. Recommendation 12 “independent” – does that mean Doctor shopping is a problem. That two medical sight unseen with the other C&C can and do can pressure practitioners must undertake practitioner’s assessment so they people into making this request. N 27 independent assessments of a cannot tick the same boxes C&C can and do direct patients to person’s eligibility for together. This is not ever going doctors who will take any comment voluntary assisted dying. to work as legislated. as a request and induce the request. Recommendation 13 The definitions are noted, C&C can and do can pressure That the roles of the two however, the definition itself is people into making this request. assessing medical not a safeguard. In reality, thse practitioners be clearly doctors can be people who the C&C can and do direct patients to N 28 defined as: patient does not know, and the doctors who will take any comment • the coordinating medical doctors can be unaware of the as a request and induce the request. practitioner; and reality of what has been • the consulting medical happening in the patient’s life. practitioner.

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Recommendation 14 Noted. Do qualifications make Doctors qualifications are not That both the coordinating the system infallible? Nope!! relevant when nurses have taken medical practitioner and the This requirement will be over the role of administering and N 29 consulting medical skipped. not report the same. practitioner must be qualified as Fellows of a College (or vocationally registered); and Recommendation 14 Noted. Do years of experience C&C can and do can pressure • at least one of the medical make the system infallible? people into making this request. practitioners must have at Nope!! N 30 least five years post This requirement will be C&C can and do direct patients to fellowship experience; and skipped. doctors who will take any comment as a request and induce the request. Recommendation 14 Noted. Does specialization make C&C can and do can pressure • at least one of the medical the system infallible? Nope!! people into making this request. practitioners must have This requirement will be N 31 expertise in the person’s skipped. C&C can and do direct patients to disease, illness or medical doctors who will take any comment condition. as a request and induce the request. Recommendation 15 Noted. Special training make the C&C can and do can pressure That both the coordinating system infallible? Nope!! people into making this request. medical practitioner and the This requirement will be consulting medical skipped. C&C can and do direct patients to practitioner must complete doctors who will take any comment N 32 specified training before as a request and induce the request. undertaking an assessment of a person’s eligibility for access to voluntary assisted dying. Recommendation 16 Noted. Special training make the C&C can and do can pressure That the specified training system infallible? Nope!! people into making this request. comprise of obligations and This requirement will be N 33 requirements under the skipped. C&C can and do direct patients to legislation including: doctors who will take any comment as a request and induce the request. Recommendation 16 Noted. Special training make the C&C can and do can pressure • assessing the eligibility system infallible? Nope!! people into making this request. criteria under the legislation; This requirement will be N 34 skipped. C&C can and do direct patients to doctors who will take any comment as a request and induce the request. Recommendation 16 Noted. Special training make the Oregon has seen depressed people • assessing decision-making system infallible? Nope!! killed under its legislation. capacity in relation to This requirement will be N 35 voluntary assisted dying and skipped. identifying when a referral The doctors will blame the may be required; and training, the trainers will blame the doctors. Recommendation 16 Noted. Special training make the Oregon has seen depressed people • assessing the voluntariness system infallible? Nope!! killed under its legislation. N 36 of a person’s decision to This requirement will be request voluntary assisted skipped.

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dying and identifying risk The doctors will blame the factors for abuse. training, the trainers will blame the doctors. Recommendation 17 Noted. C&C can and do can pressure That the coordinating people into making this request. medical practitioner or the person may request that the C&C can and do direct patients to role of the coordinating doctors who will take any comment N 37 medical practitioner for the as a request and induce the request. voluntary assisted dying process be transferred to the consulting medical practitioner. Recommendation 18 For now. Let us see the This has not been guaranteed in That a health practitioner legislation. Canada. may conscientiously object to participating in the C&C can and do can pressure provision of information, people into making this request. N 38 assessment of a person’s eligibility, prescription, C&C can and do direct patients to supply or administration of doctors who will take any comment the lethal dose of medication as a request and induce the request. for voluntary assisted dying. Recommendation 19 This can so easily done under C&C can and do can pressure That the person must make pressure and coercion. people into making this request. three separate requests to access voluntary assisted C&C can and do direct patients to N 39 dying: a first request, doctors who will take any comment followed by a written as a request and induce the request. declaration of enduring request, and then a final request. Recommendation 20 Noted That the formal process for N 40 requesting voluntary assisted dying proceeds for the person as follows: Recommendation 20 This can so easily done under Oregon, Canada and Washington • The person makes their first pressure and coercion. where reporting is poor does not N 41 request to a medical reveal how all requests were made. practitioner. Recommendation 20 This can so easily done under C&C can “assist” in ways that gets • The person undergoes a pressure and coercion. the result they want. N 42 first assessment by the coordinating medical practitioner. Recommendation 20 This can so easily done under Oregon, Canada and Washington • The person undergoes a pressure and coercion. where reporting is poor does not second independent reveal how all requests were made. N 43 assessment by the consulting medical practitioner.

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Recommendation 20 This can be done under the Oregon – the lack of knowledge of • The person makes a initial pressure. the person’s situation by someone witnessed written declaration who knows the person sees this be a N 44 of enduring request to the mere rubber stamp and they do not coordinating medical know what coercion has previously practitioner. occurred to make voluntary. Recommendation 20 This can be done under the Oregon, the lack of connection • The person makes a final initial pressure. between the doctor and patient request to the coordinating prevents this final request being a N 45 medical practitioner. safeguard. Also groups like C&C will direct the person to the doctor who will agree to the request without raising queries. Recommendation 21 This can be done under the Oregon, the lack of connection That the coordinating initial pressure. between the doctor and patient medical practitioner and the prevents this final request being a N 46 consulting medical safeguard. Also groups like C&C practitioner must ensure that will direct the person to the doctor the person is properly who will agree to the request informed of: without raising queries. Recommendation 21 That they will die in 12 months. The 12 months is seen as too long • their diagnosis and Says the doctor who is now by Oregon. C&C has directed N 47 prognosis; going to do VAD. Sounds a lot patients do doctors who will agree like jury and executioner. with all requests. Recommendation 21 This sounds very grand but can Oregon, the lack of connection • treatment options available be very self serving and between the doctor and patient to them and the likely explained to make VAD sound prevents this final request being a N 48 outcomes of these more attractive than other safeguard. Also groups like C&C treatments; options. will direct the person to the doctor who will agree to the request without raising queries. Recommendation 21 This sounds very grand but can Oregon, Washington, people need • palliative care and its likely be very self serving and have not been provided with N 49 outcomes; explained to make VAD sound sufficient access where they do not more attractive than other meet life expectation addition options. requirements. Recommendation 21 This sounds very grand but can Oregon, labels have had very little • the expected outcome of be very self serving and effect, indeed people obtain drugs in N 50 taking the lethal dose of explained to make VAD sound the mail, and hold them until they medication (that it will lead more attractive than other want to take them, more than 6 to death) options. months after receipt of the same. Recommendation 21 That they may die – “if Oregon, labels have had very little • the possible risks of taking symptoms persist, please see a effect, indeed people obtain drugs in N 51 the lethal dose of medication; doctor” the mail, and hold them until they want to take them, more than 6 months after receipt of the same. Recommendation 21 Too little too late if they are at Kate Cheney, pressed by family to • that they are under no this point and they see that their the point of suicide. obligation to continue with family want them gone from this N 52 their request for voluntary world. I thought that all people assisted dying, and that they were of equal value. may withdraw their request at any time; and

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Recommendation 21 Too little too late if they are at Kate Cheney, pressed by family to • any other information this point and they see that their the point of suicide. N 53 relevant to the person’s family want them gone from this C&C and similar groups will press needs. world for the full action to be completed. Recommendation 22 The independence will not be Oregon C&C direct the actions of so That the coordinating worth a pinch of salt if the many requested suicides. medical practitioner and the doctors are known supporters of N 54 consulting medical euthanasia and are on groups practitioner undertake like C&C’s panel of preferred independent assessments to doctors. form a view as to whether: Recommendation 22 This is not going to be enforced Oregon C&C direct the actions of so • the person meets the and will not be complied with. many requested suicides. N 55 eligibility criteria; Distlemens. Oregon has allowed depressed people to die. Recommendation 22 This is little comfort. You are Oregon C&C direct the actions of so • the person understands the going to die many requested suicides. N 56 information provided; Oregon has allowed depressed people to die. Recommendation 22 The people applying pressure Oregon C&C direct the actions of so • the person is acting will be smart enough to conceal many requested suicides. N 57 voluntarily and without it from the doctor. Oregon has allowed depressed coercion; and people to die. Recommendation 22 The request should be repeated Lack of records in Oregon, • the person’s request is each and every time that they Washington, Canada, Holland and N 58 enduring. request. Belgium shows this is not always able to be proven. Recommendation 23 Ten days is too short – people Lack of records in Oregon, That the final request may can be in depression for much Washington, Canada, Holland and N 59 only be made after a period longer than that, and make bad Belgium shows compliance with of at least 10 days has passed decisions whilst in a state of this this is not always able to be since the first request. depression. proven. Recommendation 24 No there should not. Ten days, Lack of records in Oregon, That there is an exception to nothing less. Washington, Canada, Holland and the 10 day requirement when Belgium shows compliance with the coordinating medical this this is not always able to be practitioner believes that the proven. N 60 person’s death is likely to occur within 10 days and this is consistent with the prognosis provided by the consulting medical practitioner. Recommendation 25 Records can be backdated and Lack of records in Oregon, That the final request cannot forward dated. Washington, Canada, Holland and N 61 be made on the same day that Belgium shows compliance with the second independent this this is not always able to be assessment is completed. proven. Recommendation 26 The two persons are the two Lack of records in Oregon, That a person’s written people who team up to remove Washington, Canada, Holland and N 62 declaration of enduring the person who is to die. Belgium shows compliance with request must be in writing, be this this is not always able to be signed by the person, and be Minimum of four witnesses. proven.

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witnessed by two persons in the presence of the coordinating medical practitioner. The two witnesses must certify that the person appears to be voluntarily signing the declaration, to have decision- making capacity, and to understand the nature and effect of making the declaration. Recommendation 27 Family members can call in Lack of records in Oregon, That one of the witnesses to help. Washington, Canada, Holland and the written declaration of Family members should be Belgium shows compliance with enduring request must not be witnesses in court. this this is not always able to be N 63 a family member. The two Family members who break this proven. witnesses must be 18 years law may not know this law and over and cannot be: exists until after the person is dead. Little comfort for the dead person. Recommendation 27 This will be almost impossible Do the Swiss enforce this similar • a person who knows or to enforce. law? believes that they are a beneficiary under the will of Was Daniel Andrews a This safeguard is of very little the person making the beneficiary? comfort there where so many are N 64 written declaration of foreigners so not likely to be enduring request, or a Was Jill Hennessey a needed. recipient, in any other way, beneficiary? of a financial or other Little comfort to the person who is material benefit resulting Was Brian Owler a beneficiary? dead. from the person’s death; or Recommendation 27 This is of little comfort. See Kate Cheney, she was happiest • an owner or operator of any most when she was in full time care health care or They would want the person to in a nursing home with people who accommodation facility at live, as they get money to treat/ loved and valued her. N 65 which the person making the care for the living, not the dead. written declaration of enduring request is being These people would know better treated or any facility in than most who is abusing which the person resides; or patients. Recommendation 27 This is of little comfort. See kate Cheney, she was happiest • directly involved in most when she was in full time care providing health or They would want the person to in a nursing home with people who professional care services to live, as they get money to treat/ loved and valued her. the person making the care for the living, not the dead. N 66 written declaration of enduring request. These people would know better than most who is abusing patients.

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Recommendation 28 Allows or makes mandatory. C&C and such groups will assist the That the written declaration People who can write should be preparing of such statements to of enduring request allows required to do so as a mandatory assist the person dying to die. N 67 the person to make a requirement. personal statement about their decision to access voluntary assisted dying. Recommendation 29 This will not happen. C&C and such groups will assist the That the person appoint a The task will be delegated and preparing of such returns to assist contact person who will take no one will care. the person dying to die. responsibility for the return Thirty days is a long time for of any unused lethal poison to be around. The evidence is that the medication N 68 medication to the dispensing is held onto for far too long, in pharmacist within 30 days Oregon more than 6 months and the after the person has died and pharmacist does not ask whey act as a point of contact for nothing has been returned. So any the Voluntary Assisted requirement is a farce. Dying Review Board. Recommendation 30 Of course they will say yes. Lack of records in Oregon, That, to conclude the No one will easily admit to non Washington, Canada, Holland and assessment process, the compliance if that amounts to Belgium shows compliance with coordinating medical murder. this this is not always able to be practitioner complete a proven. N 69 certification for authorisation to confirm in writing that they are satisfied that all of the procedural requirements have been met. Recommendation 31 The authorisation will be freely Lack of records in Oregon, That the prescription of the given without care as to proper Washington, Canada, Holland and N 70 lethal dose of medication procedure. Belgium shows compliance with requires an authorisation this this is not always able to be process. proven. Recommendation 32 Noted That in Oregon, legal prescriptions That at the point of are not being used in less than 180 dispensing the lethal dose of days and the pharmacists who medication, the dispensing administered these does not follow pharmacist must: up states there is laxity and N 71 safeguards on them will not be complied with and lack of compliance monitored let alone punishments dispensed against them. Recommendation 32 Labels cannot force compliance. That in Oregon, legal prescriptions • attach labels clearly stating are not being used in less than 180 the use, safe handling, days and the pharmacists who storage and return of the administered these does not follow medication; and up states there is laxity and N 72 safeguards on them will not be complied with and lack of compliance monitored let alone punishments dispensed against them.

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Recommendation 32 Most likely outcome – death. If That in Oregon, legal prescriptions • provide the person with symptoms persist, please see are not being used in less than 180 information about the your doctor. The alarming thing days and the pharmacists who administration of the is that symptoms may persist if administered these does not follow medication and the likely there is complications and the up states there is laxity and N 73 outcome. person may die of the safeguards on them will not be underlying illness. complied with and lack of compliance monitored let alone punishments dispensed against them. Recommendation 33 Just like guns, for the same Oregon, this the lack of compliance That the person be required reason, because they both kill. will make this “safeguard” not N 74 to store the lethal dose of enforced and therefore worthless. medication in a locked box. Recommendation 34 The health practitioner should Oregon, the number of instances That the legislation not be present because of: where the patient has a physician in preclude health practitioners compliance reasons, to deal with attendance is very, very low. When from being present when a complications, and, to see what they do, they may be called upon to N 75 person self-administers the their handiwork is doing to their finish the job that the drugs started lethal dose of medication if patient. by tipping more pills into the this is the preference of the person’s mouth. person. Recommendation 35 This is what is wanted by This is unnecessary, the reality is That there be protection in medical practitioners. This is a that the best protection is the failure the legislation for health get out of jail card. to report of all non-compliances. practitioners who are present This is the standard practice in at the time a person self- Oregon, Holland, Belgium, N 76 administers the lethal dose of Washington and Canada. medication, including that the health practitioner is Again, this is cheapening the deaths under no obligation to of human beings. provide life-sustaining treatment. Recommendation 36 This is seemingly likely to See references where doctors in That not being able to self- approve the intervention of Oregon killing their patients by their administer is defined as doctors doing the final action to own intervention. N 77 being physically unable to kill their patient. self administer or digest the lethal dose of medication. Recommendation 37 No. Not acceptable. This can be This is no longer the Oregon model That if the person is not able used by medical practitioners to but is the European model. to self-administer, the say, this person could not self This is doctors killing their patients. N 78 coordinating medical administer, so I did it for them. This will not doubt not be reported practitioner may administer Killing them. as it is not reported overseas. the lethal dose of medication. Recommendation 38 No. Not acceptable. This can be This is no longer the Oregon model That, in the rare used by medical practitioners to but is the European model. circumstance the person say, this person could not self This is doctors killing their patients. loses the capacity to self- administer, so I did it for them. This will not doubt not be reported N 79 administer the medication Killing them. as it is not reported overseas. after it has been prescribed, they must return to their coordinating medical

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practitioner if they wish to proceed with voluntary assisted dying. After the previously prescribed medication has been returned to the pharmacist, the coordinating medical practitioner may undertake the process to administer the medication. Recommendation 39 Should hope so. Legal challenges have been needed That, in the rare to enforce this right in Canada as it circumstance where both the This is likely to be challenged was not plain in the legislation. coordinating and consulting by medical practices who medical practitioners require employed doctors to do Groups like C&C want this to be conscientiously object to or quit. made mandatory especially where administering the lethal dose there is a claimed human right to of medication, the die. coordinating medical practitioner can refer the See Euthanasic Prevention Coalition N 80 person to a new consulting newsletter No 176 from July 2016. medical practitioner willing to administer the medication. The new consulting medical practitioner must conduct their own independent assessment, after which the coordinating medical practitioner may transfer the role of coordinating medical practitioner to them. Recommendation 40 Of Couse the person will give an The C&C will be happy to provide a That, if the coordinating affirmative report. This is an convenient witness. medical practitioner easy cover up and not a administers the lethal dose of safeguard at all. The lack of reporting overseas will medication, a witness who is see this be ignored and no one will independent of the know. N 81 coordinating medical practitioner must be present. The coordinating medical practitioner and the witness must certify that the person’s request appears to be voluntary and enduring. Recommendation 41 This is avoiding stigmatizing This is really done overseas for the That the death certificate of a and will affect the recording of purpose of insurance, and is a person who has accessed euthanasia probably to make the whitewashing of the problem and is voluntary assisted dying use of euthanasia not look as a cover-up of the number of deaths N 82 identifies the underlying bad in future years. and prevents the accurate reporting disease, illness or medical of the number deaths and then condition as the cause of allows non compliance to be death. covered up.

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Recommendation 42 Oh, yes it should. It is for the Oregon, this is a major concern for That accessing voluntary insurance industry to determine the lack of accurate statistics. N 83 assisted dying should not this not the legislature. affect insurance payments or other annuities. Recommendation 43 This will not happen 100% as All jurisdictions are accused of That the medical practitioner requested. reporting laxity, this reporting will who certifies death must not prevent deaths being done notify the Registrar of Births, unlawfully. Jail time by reporting to Deaths and Marriages if they the police will be a better option. are aware that the person has N 84 been prescribed a lethal dose of medication or if they are aware that the person self- administered a lethal dose of medication under the voluntary assisted dying legislation. Recommendation 44 Noted. Does not mean that the All jurisdictions are accused of That the Registrar of Births, number of deaths will be 100% reporting laxity, this reporting will Deaths and Marriages and properly recorded. not prevent deaths being done N 85 the Voluntary Assisted unlawfully. Jail time by reporting to Dying Review Board share the police will be a better option. information relating to voluntary assisted dying. Recommendation 45 This is a big if, and all non All jurisdictions are accused of That a death by means of compliances will be covered up reporting laxity, this reporting will voluntary assisted dying in so no deaths will be reported not prevent deaths being done accordance with the and all will take on an unlawfully. Jail time by reporting to N 86 legislative requirements not appearance of being 100% the police will be a better option. be considered a reportable compliant. death for the purpose of the Coroners Act. Recommendation 46 This will be staffed by pro Belgium is a prime example of what That a Voluntary Assisted euthanasia staff members just happens when these boards are set Dying Review Board be like in Belgium. up and euthanasia enthusiasts get established under statute to employed to run them. All acts of N 87 review every case of euthanasia are approved, none one voluntary assisted dying and is prosecuted and loved people die. report on the operation of voluntary assisted dying in Victoria. Recommendation 47 This will be staffed by pro Quite simply – Belgium, That the role and functions of euthanasia staff members just N 88 the Voluntary Assisted like in Belgium. Dying Review Board be: Recommendation 47 This will be staffed by pro Quite simply – Belgium, • reviewing each case of euthanasia staff members just voluntary assisted dying and like in Belgium. N 89 each assessment for voluntary assisted dying to ensure the statutory

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requirements have been complied with; Recommendation 47 This will be staffed by pro Quite simply – Belgium, • referring breaches of the euthanasia staff members just statutory requirements to the like in Belgium. appropriate authority to N 90 investigate the matter such as Victoria Police, the Coroner, or the Australian Health Practitioner Regulation Agency; Recommendation 47 This will be staffed by pro Quite simply – Belgium, • collecting information and euthanasia staff members just data, setting out additional like in Belgium. data to be reported and N 91 requesting additional information from medical practitioners or health services, for the purpose of performing its functions; Recommendation 47 This will be staffed by pro Quite simply – Belgium, • monitoring, analysing, euthanasia staff members just N 92 considering and reporting on like in Belgium. matters relating to voluntary assisted dying, Recommendation 47 This will be staffed by pro Quite simply – Belgium, • supporting improvement by euthanasia staff members just facilitating and conducting like in Belgium. research relating to voluntary assisted dying and maintaining and N 93 disseminating guidelines to support the operation of the legislation, in collaboration with other agencies and professional bodies and services; and Recommendation 47 Define good practice. That will Quite simply – Belgium, • any other functions be as defined by those who want N 94 necessary to promote good to escape liability. practice. Recommendation 48 The health minister, who is pro- Quite simply – Belgium, That the membership of the euthanasia. Voluntary Assisted Dying Health minister in Canada is Review Board be appointed A Health Minister who wants to desperate to show that there is no by the Minister for Health, show everyone that the problems introduced by the N 95 and that the appointments legislation run by the health government. Will continue to reflect the appropriate minister’s department is not whitewash all problematic evidence. knowledge and experience killing everyone and is as safe as required for the Board to the health minister promised. perform its functions.

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Recommendation 49 This is too much delay given the Oregon, Washington, Belgium and That there is mandatory 10 day period for the whole Holland and Canada, all have reporting by medical process to take place. There difficulty in forcing their medical practitioners to the Voluntary needs to be time for the Board to practitioners report non- N 96 Assisted Dying Review receive and review the compliances. No one wants to hear Board within seven days of: documents, not much good of it, no one wants to have the reviewing if the person is media hear ofit. Note also role of already dead. C&C in blocking information Recommendation 49 When this document is received, As above. • completing the first when it is read and when it is N 97 assessment (regardless of the acted on if deemed unacceptable outcome); could be too late. Recommendation 49 When this document is received, As above. • completing the second when it is read and when it is N 98 independent assessment acted on if deemed unacceptable (regardless of the outcome); could be too late. Recommendation 49 When this document is received, As above. • completing the certification when it is read and when it is for authorisation (which will acted on if deemed unacceptable N 99 incorporate the written could be too late. declaration of enduring request and appointment of contact person forms); and Recommendation 49 Non Compliance a bit late to As above. • when the lethal dose of investigate if the person is N 100 medication is administered already dead. by a medical practitioner. Recommendation 50 How much will all of this As above. That, in order to monitor the administration cost the tax lethal dose of medication, payer. Seven days too long to do N 101 there is mandatory reporting anything effective to prevent an within seven days to the abuse. Voluntary Assisted Dying Review Board: Recommendation 50 What is done with the report? As above. • by the Department of How will the report be used to Health and Human Services stop any abuse? Will there be N 102 when the prescription is power to say “stop”? authorised; Problem with apathy of individuals. Recommendation 50 What is done with the report? As above. Oregon, pharmacists have • by the pharmacist when the How will the report be used to not been following up the 180 day prescription is dispensed; and stop any abuse? Will there be limit to take the lethal medications, N 103 power to say “stop”? and ask why medications have not Problem with apathy of been returned. Their action is no individuals safeguard at all. Recommendation 50 What is done with the report? As above. Oregon, pharmacists have • by the pharmacist when How will the report be used to not been following up the 180 day unused lethal medication is stop any abuse? Will there be limit to take the lethal medications, N 104 returned by the contact power to say “stop”? and ask why medications have not person. been returned. Their action is no safeguard at all.

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Problem with apathy of individuals Recommendation 51 Does mean that they are Overseas jurisdictions have forms That reporting forms are set annexures to the legislation in included as schedules to the out in the legislation to schedules? This will state what legislation. That does not help the N 105 provide certainty and form is required, nothing more. level of compliance or guarantee transparency about the Does not give enforcement. compliance overseas and will not information that is collected. guaranteed compliance here in That these forms include a: Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • first assessment report a safeguard. The smallest non- included as schedules to the (which includes record of comply must be seen as criminal legislation. That does not help the N 106 first request); liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • second assessment report; a safeguard. The smallest non- included as schedules to the comply must be seen as criminal legislation. That does not help the N 107 liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • written declaration of a safeguard. The smallest non- included as schedules to the enduring request; comply must be seen as criminal legislation. That does not help the N 108 liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • appointment of contact a safeguard. The smallest non- included as schedules to the person; comply must be seen as criminal legislation. That does not help the N 109 liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • certification for a safeguard. The smallest non- included as schedules to the authorisation; comply must be seen as criminal legislation. That does not help the N 110 liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms • dispensing pharmacist a safeguard. The smallest non- included as schedules to the report; comply must be seen as criminal legislation. That does not help the N 111 liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 The standardized of forms is not Overseas jurisdictions have forms N 112 a safeguard. The smallest non- included as schedules to the

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• administration by medical comply must be seen as criminal legislation. That does not help the practitioner report; and liability. level of compliance or guarantee compliance overseas and will not guaranteed compliance here in Victoria or New South Wales. Recommendation 51 How can the community be sure Overseas jurisdictions have forms • return of medication that the amount stated on the included as schedules to the notification form is the amount that was legislation. That does not help the N 113 used by the deceased and the level of compliance or guarantee whole of the balance was compliance overseas and will not returned. guaranteed compliance here in Victoria or New South Wales. Recommendation 52 This is wrong, it must be six The reporting will be whitewashed That the Voluntary Assisted monthly forever. The two year as they all are. Dying Review Board report period will only be the period of to Parliament: every six adjustment to where people are There is likely to be little follow up months in the first two years worried about the deaths, then, from any reports. after commencement, and after people have turned their thereafter annually. minds to other things and moved Health Minister will only give N 114 on from the debate, the abuses favorable evidence. being annual will go unnoticed as no one is looking and not Oregon’s annual reports are looking as often. Also, a year is constantly critcised for not a long time for a mal practice to explaining unexplained anomalies not be seen by Parliament. The and for not reporting all relevant report will be white washed in issues. any event. Recommendation 53 Cancellation after five days. Oregon, Belgium and Holland this That the voluntary assisted There should be no enactment means loosening the requiremnts N 115 dying legislation be subject and no renewal. each time the legislation is to review five years after considered. That would be the Commencement. slippery slope. Recommendation 54 good faith – this means the That the legislation provides absence of bad faith, and is a Elsewhere and in Australia, clear protection for health very low threshold. enforcement is not a “happening practitioners who act in good thing” Everyone knows it. faith and without negligence without negligence – is this a to facilitate access to negligent murder charge being voluntary assisted dying enacted. This mans that murder under the legislation. will be determined not by there mere breach of the legislation but by tortious negligence. This THIS IS A LEGALLY is not acceptable and will be N 116 PROBLEMATIC disputed and may allow doctors RECOMMENDATION to get away with killing patients.

Negligence should not be This negligence will be assessed the standard for criminal by an equivalent standard of liability. conduct by other medial practitioners, that means if what the accused doctor did was proper for doctors, then the doctors and not the legislature will determine what is

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acceptable to comply with and what is not. That will reduce the threshold for compliance and avoid safeguards. Recommendation 55 This will never happen. Mates That a health practitioner do not “dob” on mates. Police in Elsewhere and in Australia, must notify the Australian Queensland needed His Honour enforcement is not a “happening Health Practitioner Chief Justice Sir Laurence Street thing” Everyone knows it. N 117 Regulation Agency if they AC KGMG QC to bring charges believe that another health against another policeman. practitioner is acting outside the legislative framework. Recommendation 56 This will be hard for a lay That any other person may person to navigate and the Elsewhere and in Australia, notify the Australian Health administration will be self enforcement is not a “happening Practitioner Regulation serving and protective of the thing” Everyone knows it. N 118 Agency if they believe that a doctor. health practitioner is acting outside the legislative framework. Recommendation 57 This is has difficult to prove as That there be offences for: fraud. This has a strong mental Elsewhere and in Australia, • inducing a person, through (intention) element. This will be enforcement is not a “happening dishonesty or undue unsuccessfully prosecuted in thing” Everyone knows it. influence, to request most cases and bargained voluntary between prosecution and This will not prevent groups like N 119 assisted dying; defendant. C&C from acting to encourage euthanasia. Government resources will be needed as to costly for Will charges really be brought individuals and the DPP will against Rodney Symes? I doubt it. only run cases with good prospects. Recommendation 57 This is has difficult to prove as Again, this seems tobe the Swiss • inducing a person, through fraud. This has a strong mental model, but no one will care about dishonesty or undue (intention) element. This will be enforcement enough to charge influence, to self-administer unsuccessfully prosecuted in someone. the lethal dose of medication; most cases and bargained between prosecution and N 120 defendant.

Government resources will be needed as to costly for individuals and the DPP will only run cases with good prospects. Recommendation 57 Too little too late when the Records need to be submitted and • falsifying records related to person is dead. This will require actually reviewed which is the main voluntary assisted dying; and expert hand writing evidence problem. See Oregon, Holland, N 121 and evidence as to facts, matters Canada and elsewhere. and circumstances that lead to the creation of documents. No one is going to investigate if a record is false.

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Government resources will be needed as to costly for Will a false record really motivate a individuals and the DPP will crown prosecutor to show the only run cases with good legislation trumpeted by the health prospects. minister as safe has caused a person to be murdered? Recommendation 57 Too little too late when the Records need to be submitted and • administering a lethal dose person is dead. This will require actually reviewed which is the main of medication to a person expert hand writing evidence problem. See Oregon, Holland, who does not have decision and evidence as to facts, matters Canada and elsewhere. making capacity and circumstances that lead to the creation of documents.

Is this going to be a strict liability offence.

This should be life N 122 imprisonment.

Perhaps better to not legalise euthanasia as many doctors may end up in jail and leave society without doctors.

Government resources will be needed as to costly for individuals and the DPP will only run cases with good prospects. Recommendation 58 “existing safety and quality Once it is in, even if there is a delay, That the implementation of processes” this sound jargonistic the murder-a-thon will begin. No voluntary assisted dying and does not create a safeguard. matter the preparation time. First a should occur within the trickle, then when people context of existing care intellectually acclimatize to their N 123 available to people at the end loved ones dying by suicide or of life, and ensure voluntary doctors killing them, there will be assisted dying activity is more and more. Again, slippery embedded into existing slope. This has occurred in all safety and quality processes. jurisdictions. Recommendation 59 Who is going to pay for this Once it is in, even if there is a delay, That work to establish the board? the murder-a-thon will begin. No Voluntary Assisted Dying matter the preparation time. First a Review Board begin at least There should be processes in trickle, then when people 12 months before the place before the first patients intellectually acclimatize to their commencement of the seek to die. loved ones dying by suicide or legislation and is supported doctors killing them, there will be N 124 to develop a clear work plan The setting up of processes does more and more. Again, slippery to meet its legislated not guarantee that they will stay slope. This has occurred in all obligations including in place. jurisdictions collection requirements and processes for receiving and Disasters happen with processes recording data, procedural and quality is not followed, and requirements related to its processes and quality are never review, reporting and quality

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functions, and protocols for 100% followed given time, engaging and sharing stress, money to employ people. information with other partners (such as the Department of Health and Human Services, Safer Care Victoria, and services and providers) for quality improvement purposes. Recommendation 60 Who is going to pay for this The taskforce will be branch That the Department of board? stacked like Belgium. Health and Human Services establish and support an There should be processes in Once it is in, even if there is a delay, Implementation Taskforce to place before the first patients the murder-a-thon will begin. No investigate and advise on the seek to die. matter the preparation time. First a development of voluntary trickle, then when people assisted dying. The The setting up of processes does intellectually acclimatize to their N 125 Implementation Taskforce not guarantee that they will stay loved ones dying by suicide or should have the coordinating in place. doctors killing them, there will be role in overseeing and more and more. Again, slippery facilitating the work set out Disasters happen with processes slope. This has occurred in all in these implementation and quality is not followed, and jurisdictions recommendations. processes and quality are never 100% followed given time, stress, money to employ people. Recommendation 61 A “gap report” meaning another Reporting gaps and other gaps are That the functions proposed report to find out the areas never closed. This is in all by the Parliamentary where there is no compliance or jurisdictions. Committee for End of Life systems developed to interface N 126 Care Victoria be subject to a and various agencies. This is a The enforcement gap, the judicial gap analysis in relation to system that the Final Report determination and jury existing entities and their called “robust” yet the processes determination of guilt for murder is functions to determine a clear are not final. the biggest gap. These never take role for the proposed agency. place like they ought and never will. Recommendation 62 This is an ideal not a process Reporting gaps and other gaps are That appropriate workforce never closed. This is in all support, information, clinical How will this work? jurisdictions. and consumer guidelines, protocols, training, research How will this be “robust”? The enforcement gap, the judicial and service delivery determination and jury frameworks to support the What will the final form look determination of guilt for murder is operation of the legislative like? the biggest gap. These never take framework are developed in place like they ought and never will. N 127 a partnership between Safer Will Wim Distlemans be a Care Victoria, the Voluntary systems development or ISO Assisted Dying Review 9000 consultant? Board and the Department of Health and Human Services in consultation with key clinical, consumer and professional bodies and service delivery organisations.

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Recommendation 63 This is an ideal not a process Reporting gaps and other gaps are That the Implementation never closed. This is in all Taskforce establishes a How will this work? jurisdictions. collaborative coordination process across responsible How will this be “robust”? The enforcement gap, the judicial agencies to periodically determination and jury N 128 review the resources and What will the final form look determination of guilt for murder is frameworks that support the like? the biggest gap. These never take operation of voluntary place like they ought and never will. assisted dying. Will Wim Distlemans be a systems development or ISO 9000 consultant? Recommendation 64 This is an ideal not a process Reporting gaps and other gaps are That the Implementation never closed. This is in all Taskforce provide advice to How will this work? jurisdictions. the Department of Health and Human Services on How will this be “robust”? The enforcement gap, the judicial engaging with a university to determination and jury N 129 undertake research on the What will the final form look determination of guilt for murder is best practice identification like? the biggest gap. These never take and development of place like they ought and never will. medications for use in Will Wim Distlemans be a voluntary systems development or ISO assisted dying. 9000 consultant? Recommendation 65 “Collaborative research Reporting gaps and other gaps are That a collaborative research program” is jargon. never closed. This is in all program is developed with jurisdictions. existing research entities to This is an aspiration. identify key clinical, policy The enforcement gap, the judicial and practice issues and align This will cost a lot of money to determination and jury N 130 research with these priorities. fund. determination of guilt for murder is the biggest gap. These never take This research would need to be place like they ought and never will. better than the research done to create the majority of the Final Words like collaborative are Report. administrate jargon to fill space in a report but achieve nothing. Recommendation 66 Noted. I would prefer a fifty Once it is in, even if there is a delay, That, in order to prepare for year period. the murder-a-thon will begin. No implementation, there is an matter the preparation time. First a 18-month period between the trickle, then when people passage and commencement intellectually acclimatize to their N131 of the voluntary assisted loved ones dying by suicide or dying legislation. doctors killing them, there will be more and more. Again, slippery slope. This has occurred in all jurisdictions. PDX = Oregon, US, 1997; WA = Washington, US, 2009, VT = Vermont, US, 2013, CA -= California, US, 2016, CO = Colorado, US, 2016 CAN = Canada, 2016

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Annexure 1.: My Response to the Substantive Questions in the Discussion Paper

1. For completeness, I have reproduced the objections I have to the Discussion Paper and the answers I provided to the specific questions in this report.

2. I am not medially trained and I naturally focused on practical and legal issues which are far more important than any technical medical excuse to end a person’s life.

3. I considered that it would useful to include my original reasons as people outside the MAP and the Parliament of Victoria have not been able to seen my original reasons as submitted to the MAP.

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason 2. The person Is the existing decision- Not an adult, not eligible Children too easily manipulated by parents. making capacity test in Those under 21 years not eligible Three more years gives more maturity. legislation such as the Medical Mentally impaired not eligible. Non est factum also applies to contract to Treatment Planning and Victorian continuously for 12 months with real die. Decisions Act 2016 sufficient? connection to Victoria. Shows mental capacity to live somewhere for 12 months. 3. The person In what circumstances should Psychiatric assessment in all circumstances A person who is trained in physical and a psychiatric assessment be mental health can see the interrelation required? Are there any other between the two parts of the person. specialist referrals that would The treating psychiatrist must be registered as be appropriate for assessing an opponent of euthanasia. A referral is only as good as the impartiality decision-making capacity? of the medical practitioner. 4. Access and Is greater specificity required Yes. The more specific, the narrower the scope eligibility to identify what constitutes a of people who may be included in this person being at the end of life legislation’s ambit. and, if so, how should that specificity be worded? Worded as a negative list. A single phrase may not be sufficient.

The wording should reflect that death must be If assisted death must come in, and I do not imminent. say it must, it should only be for imminent death, not death that is months away. 5. Access and How should a ‘serious and Serious eligibility incurable condition’ be “Serious” should not be used “Serious” is a word that is used by TV defined? “critical” also should not be used. reporters on the news “… reported as being in a serious/ critical but stable condition in hospital” “Serious” in this context is self-defeating/ self- evident and therefore irrelevant. If the person is going to die from the condition, then, it is serious The word should be “proximity of death” and “incurable” The pro-euthanasia rhetoric usually states that this is a solution for people suffering There should be grading of estimation of time pain in the last days (then slip in “months”). left to live.

Grade 1 One day

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason Grade 2 a few days The proximity to death must not be given Grade 3 A week for Grade 2 or higher – I would prefer not Grade 4 A month at all. Grade 5 A month to a year Grade 6 More than a year. Sentiments like, “could be cured, but at a high price which this hospital or health fund Incurable cannot afford as it will mean travel to a hospital/ specialist overseas” are not The cost of the cure should not be considered. acceptable and should not change curable to incurable.

Early detection can and does save lives, however, sometimes that is not a luxury Incurable can mean, incurable of a treatable people have. condition if it had been found earlier. Sometimes, a condition can take the life of Incurable can mean a condition which was a person after a long drawn out battle. This detected earlier for which there was a known is sad but the fight leads to an incurable and regularly successful cure loss.

Incurable should be slowly determined. This is based on medical knowledge at the time and by experienced doctors. 6. Making a What safeguards are necessary 1. The ethos of the doctor declared. 1. Doctors should disclose euthanasia request to ensure that a request is 2. The request must be recorded on audio biases. voluntary? How should this be 3. The request must be recorded on video 2. Transparency, evidence, psychiatric assessed? 4. The request must be written and signed on assessment. audio and video. 3. Transparency, evidence, psychiatric assessment. 4. Transparency, evidence, psychiatric 5. Request to be enduring assessment. 6. Request to be revocable at any time 5. Per recommendation 7. Advertised in a major newspaper for not 6. Per recommendation less than 60 days 7. This is modelled on probate after a 8. Increase the number of witnesses: one person is deceased to allow all policeperson, one lawyer, one counsellor, interested parties to comment and make society aware.

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason one family member for and one against the 8. Many witnesses who do not know each euthanasia and then some. other and even oppose each other gives 9. Mandatory exclusion from the will of a greater certainty that the person is beneficiary who supports to the wanting to die and is not manipulated. euthanasia; 9. This removes the right of a person who 10. What a person feels comfortable with in encouraged the death to benefit from telling others about their intentions is not the death – shows they are thinking of for them to determine. the deceased not themselves. 10. The unscrupulous who want to see the person die for the unscrupulous’ own benefit will target the “comfort” levels and use this to cloak their own actions of manipulation in secrecy. This mischief must be avoided by forcing the person to tell others about the decision. This person may also trust a police officer. 11. The coroner can determine if they do or do not believe and also know what 11. Mandatory registration of the request with paper work is being supplied by doctors the coroner upon the request being made. who seem report a lot of requests but no deaths – helps avoid underreporting. 7. Making a Should there be a prescribed Again, depends on the grading above. The more time a person “has” to live, the request time period that must pass more notice should be given. between the first and final request and, if so, what period? 8. Making a Should there be specific Yes, in all circumstances and to the doctor, the Each should be liable severally, not jointly request offences for those who fail to pharmacist, the mental health investigators. unless a joint enterprise is proven. comply with the requirements in the Act or are the offences That said, the law should be designed to of homicide make sure each party cross checks the other party to ensure the others have complied. This should be a strict liability offence. This is a very easy process to get correct, and, any breach of the process must have

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason been from an intent to not comply. Further, this is a legislative killing, and, where the legislation is not complied with, it is a killing that is not lawful. 9. Making a or aiding or abetting suicide Homicide – the doctors know what they are doing. request appropriate and sufficient? As long as the number of years is the same, the punishment will be just as great and the deterrent still potent. 10. Properly Should the legislation include Yes, there should be a mandatory disclosure Yes, and it must be in plain language, informed prescribed information that a document. There will be arguments as to the content. medical practitioner must provide to a person requesting No. What is included under the “Parliamentary What is in the “box” is not sufficient as it voluntary assisted dying and, committee recommendations” is not sufficient. does not really say what the options are. if so, is the list recommended Further, it does not disclose the full range by the Parliamentary of options. Committee in the box above sufficient? It does not disclose the unsavory ethos of the person giving the advice. 11. Properly What resources should be A clear statement of the person’s self worth to Clarity please. informed developed to support the community even though they do not feel it. legislative obligations to provide information that would be useful in practice? 12. Properly Who should undertake the Quite easily, a judge of the Supreme Court of This needs to be subject to court informed assessments and provide Victoria, who, may delegate this task to one supervision. The external reference needs to information? doctor on a list of doctors who are accredited. report back to the Victorian Supreme Court.

13. Confirming a Should the legislation A specialist who answers to the Supreme Court Court Supervision please. request prescribe specialist expertise of Victoria. required for medical practitioners to participate in voluntary assisted dying? 14. Confirming a Should there be a requirement No. Supervision refer back to the Supreme Court Supervision please. request for a palliative care specialist Court of Victoria. referral or consultation?

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason 15. Conscientious How should conscientious Statutory indemnity to all who refuse requests Never know who may want to cause trouble objections objection to voluntary assisted from patients who ask for assisted dying that and make a million dollar claim for pain dying operate? they may not be sued for their refusal to give and suffering against a doctor who refused “treatment” if one can call assisted dying to give treatment. Who knows, they may “treatment”. even use that litigation to provoke more doctors to give the legal drinks to patients, forcing doctors into a situation where they either help people die or face a law suit based on a landmark case that says doctors are liable for that suffering. 16. Conscientious Should health practitioners No. No obligation. To force an obligation would be tantamount objections who conscientiously object be to forcing that objecting practitioner to required to refer patients to assist by facilitating the next step rather other health practitioners? than being able to be a roadblock that the patient has to go around. That doctor would need to live with the guilt

“I referred patient X to Doctor Y, and Doctor Y killed patient X. Patient X would still be alive but for my referral.” 17. Conscientious Should health practitioners Required by law. No. That is oppressive and contrary to the objections who conscientiously object be autonomy of the practitioner. Practitioners required to declare their are grown up enough to make this know – objection? If yes, when should sign on the front door or in conversation. this occur? 18. Administering Are additional safeguards Yes, more safeguards. If the person is unable The reason speaks for itself. a lethal dose of required when a medical to do act themselves, the Supreme Court of medication practitioner administers Victoria must be notified. the lethal dose of medication If the action is to be continued with, it should and, if so, what safeguards be done in hospital and the whole action would be appropriate? should be video recorded and the doctor should ask and have the recording asked, five times, if the person wants to die. 19. Administering Where should a medical At hospital under video surveillance. The reason speaks for itself. a lethal dose of practitioner administer the medication lethal dose of medication, and

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason what practical and other I would have the maximum dosage of any one That means that any goes astray then the challenges would this create? bottle/ tablet, syringe so low that 20 or more amount lost will not be fatal to those for are needed. whom it was intended. Also means a dying person needs to actively take a lot of steps to take enough in to kill themselves. 20. Monitoring the How can a prescribed lethal Penalties, penalties, penalties. People can cook the books no matter what use of a lethal dose of medication be Enforcement. Enforcement. Enforcement. system you have. dose of effectively monitored without A big stick to clobber those who do wrong medication placing undue burdens or will be the best deterrent. pressure on people accessing or using the medication? 21. Attendance Should a health practitioner be Yes. Video record it. The reason speaks for itself. allowed to be present at the time the person self- administers the lethal dose of medication? If so, what should their role and obligations be? 22. Lethal dose of What should the obligations of No obligation. If the person lies half dead for a The experience of seeing the person suffer medication not a health practitioner be to treat long time, then that is the risk the person took. as a result of euthanasia will no doubt scar effective a person who has chosen to The medical practitioner is going to incur post the medical practitioner – funny that, I ingest a lethal dose of traumatic stress disorder I am certain of this. thought this was to prevent the suffering of medication? those who see the dying person suffer. What a sad situation. 23. Lethal dose of What is the best way to Over dose. Give enough to kill an elephant if I hope that the medical practitioner is not medication not indicate that a person has you really must do this at all using guess work. effective chosen to take a lethal dose of This is not the type of drug where clinical medication? trials can be done to measure the correct dose for people given their age, sex, height, weight etc. What a sad situation. 24. After a person What safeguards are necessary Video the death and video all that has No matter what happens, people who want has died to determine whether or not happened after the death. to intercept the delivery of the excess drugs the person has ingested the to use to kidnap and have drugs available to lethal dose of medication and Get a one way box, that you can put items into kill the person they kidnap will still to destroy the medication if it and not open until it gets to a destruction place. intercept the return delivery. has not been ingested? No safe use of this drug.

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason 25. After a person What should be recorded as Suicide, drug name, supervised, the medical Record all details. No euphemisms about has died the cause of death for a person practitioner’s name, the name of all witnesses. this euthanasia. It is suicide. who has ingested the lethal dose of medication? 26. After a person Should death as a result of Yes. I am concerned that people would think has died voluntary assisted dying be a otherwise. reportable death? 27. Oversight What information should a Who, what, when, why, who supervised, the All that gives transparency. medical practitioner be drug used, the efforts to counsel. required to report to an oversight body such as the Assisted Dying Review Board? 28. Oversight At what stage should medical Ongoing, ahead of time, and at the time. Supervision practitioners or pharmacists be required to report to the Assisted Dying Review Board? 29. Oversight When should an oversight Whenever there is the smallest breach of Unlawful must be construed very narrowly body be required to refer a legislation. and a murder charge brought. matter to another agency? 30. Oversight Should an oversight body All the powers they need. We do not want another toothless tiger of a have any investigatory government Committee. powers, or should this be conducted by other agencies? 31. Oversight Should a stand-alone review A police unit. They know how to investigate and bring board be established? What charges. are the alternatives? For example, would it fit within the investigative role of the Coroner’s Court or the quality and safety mandate of a consultative council? 32. Additional Does the Parliamentary Supervision by the Victorian Supreme Court. The court is respected and has inherent safeguards Committee’s framework jurisdiction etc to do what needs to be done

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“Table “C” David Foletta’s Responses to the Specific Questions of the Discussion Paper” Item “Key Issue” Questions to consider David Foletta’s Response Reason provide sufficient protection and can inject doctors from taking any to vulnerable people? further steps. 33. Additional What other additional Abstinence No one dies unlawfully if euthanasia is not safeguards safeguards could be performed at all. considered? 34. Liability and What protections would be Generally this is not an insurance issue. It is a A court decision is what the insurance insurance necessary for health lawful/ criminal issue. industry will look for to see if they are practitioners who act in liable. accordance with the new If a person dies unlawfully, the family who legislation in good faith and opposed the death may seek revenge against Doctors make income from this action, without negligence? the doctor who assisted. They may have a go at therefore like any other action, this should seeking compensation for the dead person, be reflected in the premiums they pay their which would go to that dead person’s estate. insurance provider. If the cost of insurance There could be insurance issues there. is too high, then they should not practice this form of service. 35. Liability and How should insurance and No change. If there is a waiting period for There should be no financial reward for insurance other annuities of people who suicide, that should stay. suicide. access voluntary assisted dying be protected? 36. Conclusion Are there any further issues See Category 2 Criticisms below. In addition to the “Category 1 Criticisms” related to the Parliamentary set out in Table A, I consider there to be Committee’s recommended numerous “further issues” which I have set framework that require the out below as Category 2 Criticisms. Ministerial Advisory Panel’s consideration?

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Annexure 14.: Culture, Social Values and Inappropriate Justifications for Euthanasia 1. The culture and values of a society is not to be considered. This is for the following reasons: (a) The values being relied upon are subject to the preferential and self serving interpretation; (b) Even if some people want something that does not mean it is good for society to have; (c) People often prefer what is convenient in the short term and no accountability for their actions, this must be legislated AGAINST not for the support of (d) The values of people who campaign for change will inspire people vote for change and for that agitator’s self-interest – including to propel their own political ideology 2. The Majority of the committee did not correctly assess the values of the state of Victoria because: (a) They counted people and organisations with the same one for one weighting; (b) This was not ever described as an inquiry about “people’s values” (c) The values asserted by the majority of the Committee are alleged to be supportive of euthanasia but do not clearly state what that finding of values being supportive was actually based on. 3. It appears to me that the Andrew’s labour government’s preference for “choice” including choice on who to marry is what is the value system being preferred by the Majority of the Committee. This is an act of including irrelevant material, and which was not put to the people who made submissions. This was not even a part of the Committee’s terms of reference. (a) The first term is the most likely to provide means for “values” but it still fails.

“assess the practices currently being utilised within the medical community to assist a person to exercise their preferences for the way they want to manage their end of life, including the role of palliative care;” (First Term)

(b) The First Term talks about the medical community, it does not ask for the values of the community as a whole; and (c) The First Term talks about management of end of life it does not speak of euthanasia. 4. I therefore say that the whole point of “The importance of Victorian culture and values” in paragraph 8.5.2 on page 217 of the final report is irrelevant and should not be considered. 5. Please see below what I think about the merits of comparing all of Australia to Portland Oregon.

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Annexure 15.: Not Binding But Persuasive NO POWER TO BIND

1. My research has not revealed any way to bind the Committee to legal principles that I have set out in the following annexures regarding administrative law.

2. I have referred the whole of the report making process to the Ombudsman for Victoria, Deborah Glass OBE, who’s office declined jurisdiction via telephone and has not provided written answers. I have since learned that their decision was probably correct and that, that office is entitled to not intervene.

3. That there is no written obligation for a Committee to the proper preparation of reports, reading all evidence, providing proper reasons, as I have called for, is not to the credit either of the Majority of the Committee or the Parliament of Victoria.

4. I have written to the Honourble Mr Bruce Atkinson to ask him to intervene in his capacity of President as I understand he has some responsibility and there is some scope of a Committee being answerable to him, the degree of answerability must be considered low if he does not have the power to strike down Recommendation 49. Honourble Mr Bruce Atkinson has acknowledged my emails. I do not include them in this report because to do so would be disrespectful to him.

5. As stated above, there is no credit to the Parliament of Victoria, indeed to the State of Victoria, to have a majority of a Committee of the Parliament of Victoria who have an attitude unto themselves:

“We can write a report like this, as long as we have a report, there is no ability to block or not accept our report, and we can say Recommendation 49 does have a report to base it on”

COMPARISON WITH THE SPIRIT AND COMMUNITY PROTECTIONS OF OTHER LEGISLATION

6. In order to overcome the lack of ability to bind the majority of the Committee, I have used comparison with the spirit of:

(a) other legislation: and

(b) the intent and good counsel of Supreme Court and Supreme Court of Appeal justices in Victoria and New South Wales.

7. In my view, all members of the Parliament of Victoria should agree to set aside Recommendation 49 for the reasons set out in judgments I have provided. These judgments set out principles which would otherwise make the decisions made at entirely void and prevent any action taking on that decision.

8. In my submission, the comparisons I have made should be reason enough and would, in any other issue which is not so politically driven, be enough to motivate a person thinking honestly and objectively, agree to set that decision aside and question why the decision was made in the first place. However, I consider that some may even question the merits or the need to even act within the guidance of the legal principles and judicial

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decisions I have provided. That is of great concern to me – if the legislature does not care about such things, then nor will anyone who practices euthanasia – who do what they do privately away from the public eye.

NO RETROSPECTIVE FIXING

9. I do not agree that a bad report can be retrospectively fixed by the MAP. The Recommendation 49 must stand on its own merits.

10. Even if one wanted to believe that the MAP can design “robust” measures to fix the Final Report (which I do not agree with), I do not believe that the MAP has even done that. This is for the following reasons:

(a) the MAP sets out a lot of ideals and aspiration, it dies not say “how to”;

(b) the MAP allows for systems to be designed by others, not give final solutions that will be fool proof;

(d) the MAP does not discuss how the law has been changed in Belgium;

(e) the MAP does not say how it will or can prevent the law being changed in the future; and

(f) the administration and creation of a new Board is going to be staffed by pro-euthanasia enthusiasts.

WHS LEGISLATION

11. The comparison to administrative law is in addition to my comparison to WHS legislation. Likewise, WHS legislation is not binding on the committee but the major principle of do not introduce fatal risks, and eliminate them don’t control them, should be considered.

IMPROPER WEIGHT BEING GIVEN TO EVIDENCE

12. In addition to the above, once again whilst not binding at law or according to any standing order for committees, the Parliament of Victoria should, and is encouraged by me, to consider that it is impossible to give proper weight to the problems in Belgium when the Majority does not even consider them. Therefore the finding that there was “no evidence” of the slippery slope is unacceptable. Such incorrect weighting to the changes in the law and non-compliance in Belgium results in:

(a) Not giving Belgium enough weight; and

(b) Giving other issues such as alleged safeguards too much weight.

STRUCTURE OF THE FOLLOWING ANNEXURES

13. I have structured the following annexures setting out the principles as though they applied as a binding legal principle, this shows how the Majority of the Committee’s action would be in breach of that principle if the principle was binding.

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Annexure 16.: Administrative Law Requirements Further Detailed WHY “ADMINISTRATIVE LAW” ISSUES ARE SO IMPORTANT

1. Administrative law is the law of government power and how it is controlled to prevent vested interests and arbitrary exercises of power.

2. The tenants of administrative power are well documented.

3. All lawyers are custodians of administrative law and we, including me, must oppose all abuse of administrative law especially where:

(a) the abuse is being done for political gain;

(b) a consequences will see thousands of innocent Australian people killed;

(d) a consequences will be a the creation and introduction of a risk which is not currently in existence in Australia; and

(e) a consequences will be that a law will be introduced which evidence overseas says should never be introduced into Australia and that was not properly dealt with by the majority of the Committee.

4. In my view, it is immaterial that section 23 of the Ombudsman Act 1973 (Vic) does not apply to the Committee.

5. The principles set out in section 23 of the Ombudsman Act 1973 (Vic) are formulated because everyone in Victoria (and throughout Australia and the world) need these principles adhered for the following reasons:

(a) The Committee are the eyes and ears of the people of Victoria in asking questions and investigating the overseas jurisdictions;

(b) The Committee are needing to think on behalf of the people of Victoria and do the assessment that people in Victoria are not able to do for reason of: lack of time, lack of expertise, lack of intelligence and lack of exposure to what the Committee has seen and heard;

(c) The people of Victoria will are entitled to expect that the Committee will have considered all of the evidence and made a decision to keep them safe;

(d) The people of Victoria will are entitled to expect that the Committee considered the question on euthanasia being:

(i) necessary and have reasons why; or

(ii) not necessary and have reasons why not.

The majority of the Committee failed in acting on behalf of the people of Victoria.

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(e) Like all people, the people of Victoria need clear, intelligible reasons that they comprehend no matter what their station or giftedness of intellect or knowledge is. This is basic and is fundamental of being properly informed about government legislation/ policy. The majority report in the final report has failed to give the people of Victoria the reasons they need to evaluate the conclusions in the majority report.

ADMINISTRATIVE LAW ISSUES

“Front End” and “Back End” Administrative Law Errors

6. In my respectful submission, the Final Report, the Final Report: Summary Booklet and the Discussion Paper are all in breach of administrative law requirements in both:

(a) The procurement of the “evidence” (front end); and

(b) The publishing of the “findings” (back end).

Basis for Administrative Errors

7. This outcome is a result of all of the following:

(a) The fettering of discretion;

(b) Failure to consider relevant facts/ information;

(d) Denial of natural justice to those who oppose euthanasia; and

(e) Breach of its own stated jurisdiction.

Void for Breach of Administrative Law Requirements

8. Further, I must respectfully submit that because of the failings of the Final Report, the Final Report: Summary Booklet and the Discussion Paper to comply with administrative law requirements the following consequences have arisen and are insurmountable and are not capable of rectification:

(a) The Final Report is void;

(b) The Final Report: Summary Booklet is void;

(d) The Parliament of Victoria is not entitled to rely on the Final Report;

(e) The Final Report cannot be used by jurisdictions outside Victoria as it is flawed;

(f) No further evidence can be called upon to rectify the Final Report, the Final Report: Summary Booklet or the Discussion Paper because:

(i) The attitude of the Committee has been revealed and it is not impartial; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 75

(ii) The attitude of the ALP that wants to support an initiative of the Victorian Premier who has gone on the public records as supporting euthanasia has been revealed and it is not impartial.

9. No legislation to grant euthanasia or even assisted dying is permissible on “evidence” which is flawed and of no merit.

Lack of Procedural Fairness

10. In my respectful submission, the Committee failed to give procedural fairness in the following ways:

(a) Lack of a fair hearing:

(i) It did not give equal hearing to people who oppose euthanasia;

(ii) The face to face hearing time in Australia and overseas was dominated by supporters of euthanasia;

(iii) Numerous opponents of euthanasia were not called to give testimony hence:

(iv) Reasons for opposing were not examined; and

(v) Reasons for opposing were not fully considered.

(b) Making decision in the Committee’s own cause;

(i) The Committee elected what it wanted to admit as evidence; and

(ii) The Committee found in accordance with evidence it admitted and refused to admit.

(i) The evidence considered must be real and must not be speculation; and

(ii) It is “speculating” to conject what is happening in overseas jurisdictions without considering facts or entirely ignoring those jurisdictions which are likely to give unfavorable evidence.

(d) Breach of the “duty to give reasons”:

(i) The absence of adequate reasons is almost always evidence that there was no good reason for the finding reached; and

(ii) The mere reference to “swayed”, or loose references to opposing submissions are not real reasons. There must, should have been but were not, have been express reasons why one argument was preferred over the other.

Ultra Vires

11. The issues of ultra vires are broadly categories as an improper use of the power which is given to the decision maker. In my respectful submission, the Committee failed to act within power (i.e. avoid falling into ultra vires):

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12. In my respectful submission, the majority of the Committee has perpetrated an abuse of power in the following ways:

(a) Irrelevant Considerations;

(i) The question of why we should have or should not have is not answered by a copy-cat like behavour just because someone else is doing it; and

(ii) The question of should someone else (in Canada, Portland Oregon, Netherlands etc) doing something is not reason to say we should, but, the Health Minister has said Victoria “must” do it.

(b) Manifest unreasonableness;

(i) The testimony of watching the suffering of dying loved ones is manifest unreasonable to accept and consider superior to those reasons who oppose euthanasia;

(1) Reliance on subjective impressions of the suffering;

(2) Reliance on the unexamined veracity of the alleged suffering;

(3) Reliance on uncorroborated evidence, of a dead person’s suffering;

(ii) The arguments that a small people are so badly off in their last days of life and racked with unquenchable pain and the proposal to allow euthanasia/ assisted dying;

(1) Have been overlooked; and

(2) Dismissed as not factual without any factual investigation being made;

That the result will be an unreasonable outcome that gives permission on an unreasonable quantum of potential damage and abuse compared to the number of people assisted dying would “help”, and this ignorance of the evidence produces a manifestly unreasonable outcome.

(i) There was four reasons for counter arguments against opponents of euthanasia, yet only one counter argument supporting the counter arguments supporting opponents of euthanasia;

(ii) The summary of reasons given in various text sizes was bigger for the supporters than the opponents of euthanasia;

(iii) The quotes from certain people which found their way into the Final Report are clearly dominated in favour of the pro-euthanasia camp;

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(d) No evidence.

(i) How did the Committee:

(1) Take into its own knowledge information about Belgium;

(2) Assess the knowledge it has about Belgium;

(3) Consider the change in euthanasia laws in Belgium;

(4) Consider the statistics in Belgium: and

(5) Consider the statistics in Elsewhere.

13. In my respectful submission, the majority of the Committee has perpetrated a failure to exercise power:

(a) Fettering discretion;

(i) The Committee did not consider Belgium;

(ii) The Committee did not give reasons for why opponents of euthanasia/ assisted dying is wrong; and

(iii) The Committee found “no evidence” for slippery slope when they did not look where the evidence should have been obtained.

(b) Acting on a policy

(i) Euthanasia is an expressly stated policy of the Australian Greens;

(ii) The Premier of Victoria, Mr Daniel Andrews, is a supporter of euthanasia

(iii) The following Premier’s expressly stated position and preference to support the introduction of euthanasia appears to be a statement of policy; and

(iv) The Committee found in favour of the Premier’s position and preference.

(i) The Committee appears to be acting on an emphasis given to it by the:

(1) Premier,

(2) the Victorian branch of the ALP; and

(3) the organisation “Dying with dignity” Victoria.

(ii) The dictation appears to arise by:

(1) the emphasis on pain and suffering as the sole dominate issue;

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(2) placing more emphasis on the private submissions of individuals who say they experienced loved ones suffer and die;

(3) self-serving emotive words (“horrible” etc) within the Final Report to describe and give emphasis to the need for euthanasia; and

(4) the mode of arguing of excess reliance on person testimony of seeing loved ones die being that as suggested by pro euthanasia organisations.

14. The above administrative issues are in addition to issues of actual and perceived bias.

WHAT SHOULD THE REASONS HAVE LOOKED LIKE

15. In my respectful submission, it would perhaps even be a bit on the unfair side (or at the very least incomplete) if I was to complain about the lack of reasons and not give some examples of how the reasoning should have looked. Some examples of the style of reasoning are:

Model of a Proper Reason: Sample 1

I have read the following comments, and in relation to the claim that in 2014, some 550 babies were killed by doctors in the Netherlands, and we have determined that

XX number of babies were killed; and the reason for the deaths were as follows.

Model of a Proper Reason: Sample 2

I have read the following comments, and in relation to the claim as to how many people would be:

1 Terminally ill and benefit from this legislation in the last 48 hours of their life – because palliative care cannot help their pain;

2 Terminally ill and benefit from this legislation in the last six months of their life – because palliative care cannot help their pain;

3 Will seek this because of a condition which cannot get better because there is no known cure.

4 The likely number of people who would be included if the laws were to include people who do not want to live anymore as they are unhappy

And then do modelling of numbers and set out reasons for those numbers.

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The presumption in the absence of actual numbers is that the numbers are so small that the majority of the committee knows that publishing them would defeat their own argument for want of a genuinely sufficient need for the law. Therefore they do not publish unfavorable and challengeable material. THIS OMISSION ALONE GIVES A REAL REASON TO DEFEAT THE WHOLE MAJORITY REPORT AND RECOMMENDATION 49.

Model of a Proper Reason: Sample 3

I have read the report of X who works with the ACME Institute, who said that …. However Y who works at the Smith Institute says that …… These statistics are interesting and the Committee finds that there is some veracity despite the divergence between both sets of statistics, however, one can make the following conclusions:

(a) … is happening;

(b) … is happening;

(c) Something is happening, though not to the extent that people may have believed, but more than the Committee had thought.

Model of a Proper Reason: Sample 4

The Committee has heard the oral testimony of, which was contradicted by, we believe that and this is for the following reasons,

(a) The X report says,

(b) The Y report says; and

Model of a Proper Reason: Sample 5

We have heard oral testimony of many witnesses, people who had fear and who had pain, and we balanced that with the evidence of how many people are likely to be in this position, and made a decision as to what emphasis we give the oral testimony.

Model of a Proper Reason: Sample 6

We have found that euthanasia allows for a peaceful ending to a person’s life like was wanted in the following submission

“It is that person’s choice – to be able to pass away peacefully, maybe surrounded by loved ones and at one’s own choosing, is the kindest act society could allow for someone in unmanageable pain. Prue and Max Beck, personal submission” (Cited by the majority at 8.5)

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We heard competing arguments about assisted dying being a pain free experience and an experience that still has some pain involved and emotional pleas as such as come from Prue and Max Beck who we believe to be genuine in believing what they believe, and:

X, said there is no pain in euthanasia, that was based on the following

Y said there is still a real chance that some patients will suffer after taking/ doing …

We have considered the allegations of X and Y and personal accounts and we have decided that ………… We decided that because the evidence of X and Y caused us to believe that …….

ANDREW DENTON EXPLAINED THE COMMITTEE’S LACK OF REASONS

16. There is very little comparing and contrasting the competing evidence. The majority’s decision pre-held position of favoring euthanasia was given self serving justification by focusing on emotional testimony.

17. Mr Denton even said so in his speech to the National Press Club. Dying with Dignity – of whom Mr Neil Francis was a leader – even encourages the use of fact avoiding emotional testimony. This is despite the fact that in his written submissions, Mr Neil Francis says that he does not like the use of emotional argument and wants to stick to factual arguments.

18. I have set out the administrative law criticisms of the majority report in the “Final Report” in the table included in “Annexure 10: Victorian Inquiry Part 2: Majority Final Report: List of Administrative Law Errors”.

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Annexure 17.: The Ombudsman Act 1973 (Victoria); THE SPIRIT OF THE OM ACT

1. The spirit and intent of section 23(1) (below) of the OM Act is still applicable to anyone who wishes to make an assessment on whether the Final Report is good evidence to recommend and reason for Recommendation 49.

23 Procedure on completion of investigation (1) Where as a result of an investigation conducted under this Act (other than an investigation conducted under Division 1A or 2) the Ombudsman is of the opinion that the administrative action to which the investigation relates— (a) appears to have been taken contrary to law; (b) was unreasonable unjust oppressive or improperly discriminatory; (c) was in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory; (d) was taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations; (e) was a decision that was made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given; (f) was based wholly or partly on a mistake of law or fact; or (g) was wrong— the Ombudsman shall take action as set out in subsection (2). (2) Where in a case referred to in subsection (1) the Ombudsman is of the opinion— (a) that the subject-matter of the investigation should be referred to the appropriate authority for further consideration; (b) that action could be, and should be, taken to rectify or mitigate or alter the effects of the action to which the investigation relates; (c) that any practice in accordance with which the action was taken should be varied; (d) that any law in accordance with which or on the basis of which the action was taken should be reconsidered; (e) that reasons should be given for the action; or (f) that any other steps should be taken— the Ombudsman must report the Ombudsman's opinion and the reasons for it to the principal officer of the authority or, if there is no principal officer, to the responsible Minister for the authority, and may make any recommendations the Ombudsman thinks fit.

2. In my submission, it is clear that the spirit and intent of section 23(1) (below) of the OM Act is that no legislation should be made based on Recommendation 49 where it is based on faulty evidence, faulty lack of consideration of evidence and having taken into account relevant issues – which is a great way to describe the majority report in the Final Report.

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MR DENTON CANNOT ARGUE AGAINST THE USE OF ADMINISTRATIVE LAW

3. In light of Mr Denton’s derision of all people who oppose euthanasia for religious reasons, I have decided to look further afield to objective ways to show that we religious people are not panic stricken idiots.

4. As a lawyer, I was fully aware of principles of administrative law being acceptable to the religious and non- religious alike. I therefore turned to the Ombudsman Act 1973 (Victoria) (OM Act) which sets out the exact same legal principles, obligations, requirements and expectations that I have complained about.

MY COMPLAINT TO THE VICTORIAN OMBUDSMAN

5. On 9 April 2017, I tested the waters with a complaint to the Victorian Ombudsman, Mrs Deborah Glass OBE.

6. I had no previous experience with the OM Act and was keen to make an application in the event that the Victorian Ombudsman could find some jurisdiction.

7. In early May 2017, I was advised that the Ombudsman does not have jurisdiction to set aside or enquire about the Final Report.

8. The rejection by the Ombudsman was further inspiration for me to write a full length letter. I also wanted to address the substantive issues which I was not able to consider in my earlier writings, having missed the boat on the opportunity to do so in Victoria by almost two (2) years.

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Annexure 18.: Judicial Opinion on Providing Reasons NO VALIDITY OF THE REPORT MEANS RECOMMENDATION 49 IS NOT VALID

1. In my respectful submission, the weight of judicial authority is very much against the validity of the actions of the majority of the committee and the majority report in the Final Report therefore:

(a) The final report is not valid;

(b) Recommendation 49 is not valid;

(d) The Discussion Paper where is relates to Recommendation 49 is invalid;

(e) Any legislation based on Recommendation 49 is not valid;

(f) The action of the majority committee will see the deaths of people based on an invalid recommendation and subsequent invalid law.

2. For the reason that the conclusions reached by the majority in the majority report are:

(a) assertions dressed up as conclusions;

(b) conclusions which are unsupported by the facts;

(d) conclusions reached without being based on reasons; and

(e) conclusions which are mere “catch all” phrases.

3. In my respectful submission, there is good judicial authority to show that what has been produced by the majority of the Committee is not inclusive of satisfactory reasons for the conclusions they assert they found through their research. Whilst, it is true that the Committee is not a “court” and not an “adjudicator” under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“BACISOPA”) under which many of the cases I now provide have their focus. However, I can tell you, the expectations for proper reasons is no different to what anyone in the street would expect, and, quite rightly so.

4. Xuereb v Viola (1988) 18 NSWLR 453, Cole J said at 469:

“Quite apart from Pt 72, r 11(c), natural justice requires that a referee give reasons for his opinion. This is not just to permit the court better to exercise its functions under Pt 72 r 13. The deeper reason is that it enables the parties and the disinterested observer to know that the opinion of the referee is not arbitrary, or influenced by improper considerations but is the result of a process of logic and the application of a considered mind to factual circumstances. I adopt, with respect, the passage in the judgment of Samuels JA in Strbak v Newton (Court of Appeal, 18 July 1989, unreported), in speaking of the requirements for reasons in the judgment of a District Court

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Judge, as being an appropriate statement of principle applicable to the statement of reasons required by a referee:

... “it is going too far to suggest that in every case a judge must submit the material before him or her to the most meticulous analysis and carry into judgment a detailed exposition of every aspect of the evidence and the arguments. What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion.

(Emphasis mine)

Cited by McDougall J in A and P Parkes Constructions Pty Ltd v Como Hotel Holdings [2004] NSWSC 588 (8 July 2004)

5. In Hughes Bros Pty Ltd v Minister for Public Works (unreported) per Rolf J, the reasoning process must be seen and comprehensible – the reasoning in the Final Report is not. The reasoning in the Final Report states what was wanted and then includes self serving excerpts from personal testimonies that support the desired outcome:

14 In Hughes Bros Pty Ltd v Minister for Public Works (55011/1991, 17 August 1994, unreported; BC 9402885), Rolfe J said (adopting the BC pagination) at 13-14:

“In my opinion the Court must be able to see and follow a reasoning process. That does not, in my view, impose an unnecessary burden upon the Referee. The nature of what is required is that a reasoning process be disclosed, or sufficiently disclosed, to satisfy the Court that the finding was one based upon such an intellectual exercise. The performance of that task is not fulfilled by ultimate conclusions unsupported by reasoning. ...

Cited by McDougall J in A and P Parkes Constructions Pty Ltd v Como Hotel Holdings [2004] NSWSC 588 (8 July 2004)

In my respectful submission, the Final Report is filled with “ultimate conclusions” but lacks how the evidence was used, considered, adopted or discarded. It also does not explain how oral testimony overtook statistics of unlawful killings.

6. Ciciwill Pty Ltd v Consumer Claims Tribunal (1997) 41 NSWLR 737, Hulme J determined that a failure to give reasons or adequate reasons gave rise to the inference that the tribunal (or in our case a Parliamentary Committee) did not “turn its mind” to the facts, but merely went on its own devices. More will be said about this issue in the next annexure.

7. SZDCJ v Minister for Immigration [2004] FMCA 1050 (20 December 2004) at paragraphs 10 – 12 per Jacobson J – where there is contention as to facts, the decision maker must give reason why one set of facts is to

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preferred over the other set of asserted facts. None of this was done. It was all based on the bold assertions that there was “no evidence” for arguments contrary to those arguments that supported Recommendation 49.

10. The duty of a Judge or Magistrate to state reasons was recently described by the NSW Court of Appeal in Wiki v Atlantis Relocations Pty Ltd [2004] NSWCA 174 ("Wiki"). There, at [56] – [59], Ipp JA, with whom Bryson AJA and Stein AJA agreed, held that a miscarriage of justice can arise where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done, citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431 (per Mason P).

11. Ipp JA found at [59] that it is well settled that a judge does not need to refer to all the evidence in the proceedings or to indicate that the evidence is accepted or rejected. As observed by Mahoney JA in Tatmar at 386, "the reasons given need not be elaborate, for an elaborate argument may not require an elaborate answer". The extent of the duty to give reasons depends upon the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (per Samuels JA, with whom Clarke JA and Hope AJA agreed).

12. Ipp JA quoted, with approval, the observations made in Archibald v Byron Shire Council [2003] NSWCA 292; (2003) 129 LGERA 311 per Sheller JA (with whom Beazley JA agreed) at [54]:

"Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the court and to an explanation by the judge as to why the judge prefers one case over the other."

8. Fletcher Construction Australia Limited v Lines MacFarlane & Marshall Pty Ltd [2002] VSCA 189 (29 November 2002), this is from the Victorian Supreme Court of Appeal. This case makes clear that were strong cases have been put based on evidence, such as to oppose euthanasia, then, those who have made submissions, must not be dismissed out of hand, and, conclusions like there was “no evidence” are just plain inadequate.

The nature and content of the judge's obligation to give reasons

101 In any case in which reasons are required, the necessary content will depend upon the circumstances of the particular matter. In Beale, Meagher, J. suggested[44] that while reasons need not necessarily be lengthy or elaborate, there were three fundamental elements of a statement of reasons, as follows -

"First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the

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matter and is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. ... [W]here findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. ... Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance ... Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well."

102 In Sun Alliance, Gray, J. identified two criteria for determining the adequacy of reasons saying[45] that the reasons will be inadequate if -

"(a) the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or (b) justice is not seen to have been done."

Later, Gray, J. turned to consider whether justice was seen to have been done, and stated his view that it was not, saying -

"The defendant, having led a weighty body of incriminating evidence was entitled to have the evidence weighed by the Court and, if rejected, the grounds of its rejection expressed in reasoned terms. To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant."

103 The failure of a judge to refer to particular evidence has drawn attention in a number of cases. In Yendall v. Smith Mitchell & Co. Ltd.[46] Sholl, J. said -

"The true principle, I think, must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to the matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what is said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw that inference, and the magistrate will have no cause to complain if it does so."

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In Sun Alliance Gray, J. said[47] of the omission in that case that -

"The failure to make a single reference to evidence of such importance to the defendant leads to a strong suspicion that it was overlooked or ignored."

Then in Mifsud v. Campbell[48] Samuels, J.A. said -

"... it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only `disappointed' but `disturbed' ... it tends to deny both the fact and the appearance of justice having been done."

104 Fletcher placed particular reliance, in this regard, on the decision of the New South Wales Court of Appeal in NRMA Insurance Ltd. v. Tatt[49], where the Court held that the trial judge's failure to take into account a number of aspects of the evidence also vitiated his findings as to the credit of the witnesses. Samuels, J.A.[50] stated -

"Certainly it cannot be said that the learned judge gave no reasons; but in my judgment he failed to provide those findings and reasons which enable `a proper understanding of the basis upon which the verdict entered has been reached'. That point is to my mind sufficiently taken by grounds of appeal which complain that the judge failed `to give any sufficient or any consideration to', amongst other things, the evidence of Mr Carmody and Mr Dowling and the cause of the fire and `failed to take into account' a number of aspects of the scientific evidence. By recording only one side of the judicial equation he has deprived this Court of the opportunity of assessing the weight to be given to the finding on credit, which might thus be accorded far greater cogency than in the whole of the context it properly deserves. It is, to my mind, impossible for a judge to make a finding on credit in a vacuum, as it were, without relating the witness' evidence, demeanour and particular circumstances to the other material evidence in the case."

(Emphasis mine)

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9. In the case of Conder v Silkbard [1999] NSWCA 459, a lack of reasons was reasons for concern.

22 In my opinion, the trial judge's reasons do not satisfy the judicial obligation to give reasons. Firstly, he did not make findings of fact on the two critical matters which were central to the appellants' case that, as a matter of its discretion under s 209C, the court should not order them to deliver a bill of costs. Those matters were the conduct of the respondent prior to June 1994 and whether the parties had reached an agreement in June 1994. Nor did he refer to or make any findings as to the numerous other circumstances upon which each party relied to persuade his Honour to exercise his discretion one way or the other. I do not intend to convey that his Honour was required to refer to every fact and circumstance relied upon by the parties. However, it was incumbent for him to deal with the central contentions advanced by the parties and indicate, even in general terms, whether and why he accepted or rejected those matters.

10. In the case of Shell Refining (Australia) Pty Limited v A J Mayr Engineering Pty Limited [2006] NSWSC 94 (6 March 2006), Her Honour, Justice Bergin of the New South Wales Supreme Court expressed concern when reasons are generic and baseless and nothing but a “catch all” phrase or reasons to show some semblance of having considered the evidence – when they really did not. In her Honours words

27 It is perhaps understandable that some adjudicators whose determinations have been the subject of administrative law challenge may regard it as appropriate to utilise a catch- all statement, similar to the one used in the Determination, to fend off an allegation that they have failed to consider a relevant matter. Notwithstanding the somewhat pressure cooker environment in which adjudicators provide their determinations, it seems to me that it would be unhelpful for adjudicators to develop such a practice

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Annexure 19.: Judicial Opinion on “turning one’s mind” DID THE MAJORITY OF THE COMMITTEE “TURN ITS MIND” TO THE EVIDENCE AGAINST EUTHANASIA

The Obligation to “turn its mind” to all of the Evidence

1. In addition to the above judicial decisions, I also draw your attention to the issue of what it means to turn one’s mind to making a decision. This decision is from the New South Wales Supreme Court and was handed down by His Honour Justice McDougall in the case of Timwin Construction v Facade Innovations [2005] NSWSC 548 (1 June 2005) – this is specifically relating to an adjudicator’s determination under the BACISOPA, but the same principles I submit are universal.

37 The adjudicator referred to none of this. Insofar as one can gather from reading the determination, he appears not to have read the submissions at all. He certainly does not indicate that he has gained any enlightenment as to the argument in relation to variations from Façade's submissions. Further, when dealing with the other reasons given by Timwin in support of its claim that it was not liable to pay, he dealt only with the arguments raised in the payment schedule.

38 There has not been any decision to my knowledge elaborating the requirement of good faith to which Hodgson JA pointed in Brodyn. Clearly, I think, his Honour was not referring to dishonesty or its opposite. I think he was suggesting that, as is well understood in the administrative law context, there must be an effort to understand and deal with the issues in the discharge of the statutory function: see, for example, the speech of Lord Sumner in Roberts v Hopwood [1925] AC 578, 603, where his Lordship said that a requirement to act in good faith must mean that the board "are putting their minds to the comprehension and their wills to the discharge of their duty to the public, whose money and locality which they administer.”

39 That construction of the requirement of good faith is supported by the provisions of s 22(2), requiring an adjudicator to "consider" certain matters. A requirement to consider, or take into consideration, is equivalent to a requirement to have regard to something: see Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 at 602 (Spigelman CJ, with whom Meagher and Beazley JJA agreed).

40 As his Honour emphasised, the requirement to “have regard to” something requires the giving of weight to the specified considerations as a fundamental element in the determination, or to take them into account as the focal points by reference to which the relevant decision is to be made. His Honour relied on the tests expounded in The Queen v Hunt; ex parte Sean Investments Proprietary Limited [1979] HCA 32; (1979) 180 CLR 322 (Mason J) and in Evans v Marmont [1997] NSWSC 331; (1997) 42 NSWLR 70, 79-80 (Gleeson CJ and McLelland CJ in Eq).

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41 In the present case, I think that an available, and better, inference is that the adjudicator did not consider, in the sense that I have just explained, the submissions for the parties in which the ambit of the dispute that was intended to be raised in relation to variations was explained. Had he turned his mind to those submissions, he would have known what it was the parties understood the dispute to be; what it was that they were arguing. Because he did not, as it appears, turn his mind to those submissions, he did not deal with the real dispute.

42 It is of course apparent that the adjudicator turned his mind to the submissions for Timwin. However, did he so in the context of dismissing them (on this issue) because of s 20(2B). Had he read, and given consideration to, the submissions for Façade, he could not reasonably have done this. That, to my mind, supports rather than denies the drawing of the inference that the adjudicator did not have regard to, or consider, the relevant submissions.

43 I therefore conclude that the adjudicator did not attempt in good faith to exercise the power given to him by the Act because he did not attempt in good faith to consider the submissions put by the parties to understand what, in relation to variations, the real dispute was.

44 I will note that Timwin did not put its case on the basis of denial of natural justice, but it would follow from what I have said that, in disregarding Timwin's submissions for the reason that he gave, the adjudicator denied it natural justice.

Conclusion

45 I therefore conclude that the determination is void. It follows, no discretionary considerations having been advanced save for one to which I will turn, that Timwin is entitled to the relief sought in its summons.

THE TRUE MIND OF THE MAJORITY OF THE COMMITTEE

2. In my respectful submission, the majority of the Committee’s mind was at all materialised focused the immediate nature of the suffering and not whole of the other issues which were raised. This is shown in the following passage from the Final Report, page 216, 8.5 Overview of proposed assisted dying framework

Finally, the Committee believes that the needs of the patient must be squarely at the centre of an effective framework. Ensuring that the rights of patients are respected depends on the expertise and judgment of those working within the framework, particularly doctors.

In saying this, the Committee supports the words of eminent palliative care specialist Professor Ian Maddocks AM:

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(Emphasis Mine)

3. I submit that the squarely at the centre means both:

(a) To have a system of euthanasia rather than not have such a system; and not merely

(b) at the centre of the system that is introduced.

4. This is even more evident where one considers the extracts of personal submissions that are included in this 8.5 which are all self serving and say as follows:

It is that person’s choice – to be able to pass away peacefully, maybe surrounded by loved ones and at one’s own choosing, is the kindest act society could allow for someone in unmanageable pain.

Prue and Max Beck, personal submission

5. And then, another self serving quotation

A small proportion of cases fail to obtain relief of pain and distress by those [palliative care] means. Their plea for assistance to die with dignity before the loss of control of bodily functions and when still able to farewell family and friends, requires legal approval.

Halina Strnad, personal submission

6. In my respectful submission, from the very get go, the majority of the Committee never deviated from its intention to bring in euthanasia and found solace for its pre-existing attitude in the above submissions.

FURTHER EVIDENCE THAT THE MAJORITY OF THE COMMITTEE DID NOT “TURN ITS MIND” TO THE EVIDENCE

7. In my respectful submission, in addition to the objections I make throughout these submissions, I draw the Advisory Panel’s attention to the following table where I have set out instances where I consider there the reasoning was not sufficient. I note that when I consider reasons, I look at what was and what was not said by the majority of the Committee in the reason or no reason as the case may be.

8. In my respectful submission, all people should see from this list of objections that the Committee:

(a) Admits that it did not try set out proper reasons of the for and against;

(b) Relied on “Victorian values” – without considering those people in Victoria who do not want or value euthanasia;

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(d) Based its “no evidence” by looking at reports that favoured its own purposes;

(e) Did not show proper weight to arguments against euthanasia;

(f) Likes to assert that it looked at evidence, but, did not say how it looked or considered the evidence.;

(g) Likes to use catch all phrases like “robust”, “clear” etc as conclusions which are unsupported and are not actually a explanatory reason; and

(h) Showed a lot of reliance on emotional testimony of patients and their families – uses of words like horrific;

(i) Placed an over emphasis on dying at home, while admitting that it is the norm today not to do so;

(j) Included irrelevant factors, such as legal issues of doctors not knowing where the law is on treatment that inadvertently kills, as justifying the introduction of euthanasia, lets use a more polite and politically correct phrase “assisted dying”;

(k) Admitted that the number of people who want euthanasia is very small – but did not try to see that the risk of the proposed cure is far greater than the “problem”;

(l) Admitted that there are genuine concerns, yet, found that there was “no evidence” of slippery slope or reason for thinking that additional people will be abused. In the absence of reasons, it is not possible for this reasoning to be understood and this is a self serving conclusion based on willful blindness of the evidence. This is even seen in statistics where there are annual laminations of the numbers of people ending their lives through euthanasia. Does this admission by the Committee that Mr Denton should not call Christians’ concerns FUD?; and

(m) Appendix 7 is close to useless. It does little more than list out the competing arguments. It even admits it does not try and find a decision on the competing arguments. It also places greater emphasis on the pro-euthanasia arguments, and even places greater emphasis on the pro-euthanasia counter arguments. This is all an act of bias. It is not possible to read Appendix 7 and understand the flow and logic and reasons for the weight placed by the Committee on the issues it chose to be determinative of its decision to recommend the introduction of euthanasia into Victoria.

The Majority of the Committee’s reasons show it didn’t “turn its mind” to the Facts

Item Ref Comment to which I object

<1> CF While these jurisdictions differ significantly in their assisted dying models, what they all have in common is robust regulatory frameworks that focus on transparency, patient-centred care and choice. We found no evidence of institutional corrosion or the often cited ‘slippery slope’

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The Majority of the Committee’s reasons show it didn’t “turn its mind” to the Facts

Item Ref Comment to which I object

<2> CF Given the conflicting evidence regarding practices and occurrences in these jurisdictions, the trip was very important for developing an understanding of the facts about how these systems work.

<3> CF In recommending an assisted dying framework for Victoria, the Committee has sought to adopt the best elements of these jurisdictions and mould them to the Victorian context.

<4> CF sufficiently robust eligibility

<5> CF comparatively small number of Victorians will die using the assisted dying framework

<6> CF We were deeply moved by those who, despite suffering serious illness, had the courage to tell their personal stories.

<7> ExSum Everyone’s end of life care needs differ. It is important that Victoria has a system in place to cater for the needs of individuals, whilst ensuring that there are safeguards in place to protect vulnerable people.

<8> Core These values are based on what the Committee has learned throughout the Inquiry values process.

<9> ExSum It shows that the nature of dying under Victoria’s end of life legal framework for people with a serious and incurable condition can be difficult and sometimes Cptr 7 harrowing for individuals, their families and communities.

<10> ExSum While the existing legal framework is not an obstacle to good medical practice for most people at the end of life, it does not accommodate the needs of all. Cptr 7

<11> ExSum The effect of the end of life legal framework on the lives of Victorians and on the practice of medicine and the law signifies that it does not reflect our contemporary Cptr 7 society’s values.

<12> ExSum The objective of the recommendations in the Report are to not only enable patients’ end of life wishes to be respected, but also to protect patients, particularly vulnerable Cptr 7 people, from abuse and coercion.

<13> ExSum The recommendations also aim to increase transparency around end of life medical practice and to improve clarity on end of life law so that health practitioners can be Cptr 7 confident knowing where the boundaries of legal medical practice lie.

<14> ExSum The Committee is of the view that the existing end of life legal framework needs reform. Cptr 7

<15> ExSum is a result of consideration of the advice provided to the Committee during an extensive research and consultation process. Cptr 8

<16> ExSum The Chapter discusses the Committee’s reasons for making these recommendations.

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The Majority of the Committee’s reasons show it didn’t “turn its mind” to the Facts

Item Ref Comment to which I object Cptr 8

<17> ExSum While several submissions suggested that all pain and suffering can be alleviated through the provision of better palliative care, the Committee heard from health Cptr 8 practitioners that not all pain can be alleviated. Palliative care cannot always be the solution to managing pain and suffering at the end of life.

<18> ExSum head-in-the-sand Cptr 8

<19> ExSum next to no evidence Cptr 8

<20> ExSum The Committee heard next to no evidence that a lack of prosecutions for assisted dying is a failure of the current legal system. Cptr 8

<21> ExSum plight Cptr 8

<22> ExSum The Committee’s research in Victorian and international jurisdictions has satisfied it that the methods used in assisted dying are medically sound and help that small cohort Cptr 8 of patients who want this option to achieve a peaceful death.

<23> ExSum The evidence is conclusive that assisted dying can be provided in a way that guards against abuse and protects the vulnerable in our community in a way that unlawful and Cptr 8 unregulated assisted dying does not.

<24> ExSum The Committee chose not to focus solely on the arguments for and against legalising assisted dying. These are well known and have been addressed in many different Cptr 8 reports and research papers, both in Australia and internationally. The arguments put forward in evidence to the Inquiry reflected these and were consistent with arguments the Committee examined during its research process.

<25> ExSum The Committee’s recommended assisted dying framework allows for adults with decision making capacity who are at the end of life, and suffering from a serious and Cptr 8 incurable condition which is causing enduring and unbearable suffering that cannot be relieved in a manner the patient deems tolerable to request assisted dying.

<26> ExSum The framework also includes a robust oversight Cptr 8

<27> 8.1 The proposed framework is a result of the Committee’s extensive research and consultation process during the Inquiry.

<28> 8.1 discusses the Committee’s reasons for making this recommendation, i

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The Majority of the Committee’s reasons show it didn’t “turn its mind” to the Facts

Item Ref Comment to which I object

<29> 8.1 In explaining this framework, the Committee chose not to focus solely on arguments for and against legalising assisted dying.

<30> 8.1 The Committee made this decision for a number of reasons.

<31> 8.1 First, the various arguments put by supporters and opponents are well known and have been addressed many times in many different reports and research papers, both in Australia and internationally.

<32> 8.1 The arguments put forward in evidence to the Inquiry reflected these and were consistent with arguments the Committee found during its research process.

<33> 8.1 Concerns raised in arguments against legalising assisted dying — such as the inability to implement and maintain effective safeguards — have not eventuated in jurisdictions where assisted dying is legal.

<34> 8.1 The Committee did not find compelling evidence to support the negative consequences predicted by these claims.

<35> 8.1 Rather, these jurisdictions highlight the importance of establishing a framework that suits a particular jurisdiction’s medical and legal culture and of providing the appropriate safeguards within that framework.

<36> 8.1 The Committee has provided a summary of arguments for and against legalising assisted dying in Appendix 7. This is drawn from the evidence provided in submissions to the Inquiry.

<37> 8.2 The Committee has considered the wealth of information provided to it directly in evidence to the Inquiry

<38> 8.2 as well as in existing literature and reviews, arguing for and against legalising assisted dying.

<39> 8.2 The Committee has also considered the evidence of medical practitioners, academics, and other experts describing the way some people are dying under our current legal system.

<40> 8.2 The evidence presented by the Coroner’s Court of Victoria was highly persuasive, and revealed some disturbing examples of the hidden damage that occurs.

<41> 8.2 The evidence highlighted some of the horrific ways people are currently dying under our current law,

<42> 8.2 particularly frail, elderly and vulnerable Victorians.

<43> 8.2 This led the Committee to further investigate this issue, including how the criminal justice system deals with those who break the law.

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Item Ref Comment to which I object

<44> 8.2 The Coroner’s Court told the Committee that some Victorians are ending their lives in dreadful ways

<45> 8.2 While several submissions suggested that all pain and suffering can be alleviated through the provision of better palliative care,808 the Committee heard from health practitioners that not all pain can be alleviated.809

<46> 8.2 The Committee endorses better palliative care, however, the evidence is clear that this may not always be the solution to all pain and suffering at the end of life. This is discussed at length in Chapters 2 and 3.

<47> 8.2 Some Victorians are dying terribly at the end of a terminal illness. They are spending the last days and weeks of their lives in pain which cannot be relieved. They are ready to die. They are determined to end their suffering. Some choose starvation or dehydration as their only option to end their life.

<48> 8.2 These people want what we all want; a good death. Our current medical and legal system can provide this for most Victorians. But for some, it is out of reach.

<49> 8.2 Because of the way our medical and legal systems are currently regulated, we do not have the data to see the full picture of how people die in Victoria. Practices are not transparent, nor are they adequately recorded.

<50> 8.2 Some Victorians are being prosecuted for acts of love and compassion towards their relatives and loved ones that violate our criminal law. However, our criminal justice system is showing extraordinary leniency in dealing with them. Without exception, police, prosecutors and judges have used their discretion to ensure those prosecuted for helping loved ones to die do not face the full effects of the law. Whilst this may be a desirable outcome on a case-by-case basis, it threatens to bring the law into disrepute and undermine public confidence in the administration of justice.

<51> 8.2 Some Victorians are being assisted to die by doctors. This is happening without regulation, without support, without transparency or accountability, and from the evidence received, sometimes without their consent. In short, the current legal framework is not serving Victorians well.

<52> 8.2 The Committee recognises people’s suffering and resolved to consider what legislative action, if any, should be taken to best serve Victorians at the most difficult time of their lives.

<53> 8.3.1 The Committee rejects this as an inadequate, head-in-the-sand

<54> 8.3.1 The Committee heard next to no evidence in favour of increasing efforts to enforce our current law.

<55> 8.3.2 Law enforcement officers working in the field did not suggest that stronger enforcement was appropriate.

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Item Ref Comment to which I object

<56> 8.3.2 The Committee has described the existing problem of some doctors’ fear and hesitancy in giving adequate pain relief.811 The Committee does not believe an approach that exacerbates this problem benefits our health practitioners, nor the Victorians they serve.

<57> 8.3.2 The Committee does not know what the precise outcome of more strict enforcement of Victoria’s current laws would be. However, outcomes the Committee can predict with relative confidence include: greater certainty of the consequences of breaking the law an increased climate of ‘defensive medicine’ as described by Professor Magnusson above incarceration of doctors and loved ones for crimes ranging from inciting suicide to murder812 continued lonely, horrific suicide by people who experience irreversible deterioration in physical health. The Committee does not see fostering these outcomes as best serving Victorians.

<58> 8.3.3 Change the law The Committee heard extensive evidence supporting legalising assisted dying through regulatory or legislative change. This could be achieved through various legal reforms:

<59> 8.3.3 Creating a new statutory framework to allow and regulate assisted dying under certain conditions. See for example the approach taken in Oregon and other states in the United States, the Canadian province of Québec, the Netherlands and soon Canada.815

<60> 8.3.3 The Committee has considered these approaches carefully, through its examination of experiences of jurisdictions where these approaches exist,816 and the arguments presented by witnesses and in submissions.

<61> 8.3.3 Similarly, creating a defence to prosecution in existing criminal law is an inadequate response to the problems raised in this Inquiry.

<62> 8.3.3 The Committee does not believe that prosecution of assisted dying is in the public interest, nor does it align with the Victorian community’s values.

<63> 8.3.3 Further, the existing evidentiary obstacles and reluctance of law enforcement authorities to prosecute doctors as discussed in Chapter 7 would remain. Assisted dying would be no more transparent or accountable if a criminal defence to prosecution was created. Transparency in assisted dying practice is an important goal for the Committee.

<64> 8.3.3 While each approach has its advantages and disadvantages to be taken into consideration, any Victorian response must also be tailored to best fit with Victorian culture and values.

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Item Ref Comment to which I object

<65> 8.3.3 Accordingly, the Committee has reached a decision which it believes best addresses the negative outcomes resulting from Victoria’s current law relating to assisted dying. This response takes into consideration the vast evidence provided to the Committee, and provides a positive step forward.

<66> 8.4 At present in most jurisdictions in this country any person, suffering more than he/she wishes to bear can refuse to accept any treatment and virtually commit suicide.

<67> 8.4 It is surprising that we as a community can watch the patient slowly die but cannot help to bring a swift end to that life. I find that baffling. To me that is not compassion, it is cruelty. Ranjan Ray, personal submission

<68> 8.4 The Committee has examined a wealth of academic research and other publications investigating assisted dying. My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<69> 8.4 Many of these were published by eminent academics in respected journals, some were produced by committees performing inquiries similar to this one. My Comment – selection of what evidence too admit directs the outcome

<70> 8.4 These publications often examined the arguments presented for and against legalising assisted dying, and it was through examining these that the Committee gained a solid understanding of the issues at hand.817 My Comment – selection of what evidence too admit directs the outcome

<71> 8.4 Recent publications from Canada, the United Kingdom, and here in Australia provided an overview of the issues surrounding assisted dying both from an academic and ethical standpoint, and a practical implementation standpoint. My Comment – selection of what evidence too admit directs the outcome

<72> 8.4 At the time of writing Canada is considering its own assisted dying legislation. While this is the result of a legal decision by Canada’s Supreme Court,818 it is informed by a body of publications from the past five years that closely investigated assisted dying. These publications include academic papers and reports from: My Comment – selection of what evidence too admit directs the outcome

<73> 8.4  the Royal Society of Canada Expert Panel819

<74> 8.4  the Québec National Assembly Select Committee on Dying with Dignity820

<75> 8.4  the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying821

<76> 8.4  the University of Toronto Joint Centre for Bioethics Task Force on Physician-Assisted Death822

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Item Ref Comment to which I object

<77> 8.4  the External Panel on Options for a Legislative Response to Carter v Canada823

<78> 8.4  the Canadian Parliament’s Special Joint Committee on Physician-Assisted Dying, including a dissenting report.824

<79> 8.4 In 2011 the UK Commission on Assisted Dying released its report titled ‘The current legal status of assisted dying is inadequate and incoherent…’. The report reviewed the existing legal and policy approach to assisted dying in England and Wales. Led by Lord Falconer, with research from Demos and financial support from Sir Terry Pratchett and Bernard Lewis, the Commission’s report was comprehensive, covering all aspects of the assisted dying debate in the UK.825 My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<80> 8.4 In January 2013 not-for-profit research organisation Australia21 and Queensland University of Technology held a roundtable on the question ‘How should Australia regulate voluntary euthanasia and assisted suicide?’. My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<81> 8.4 The roundtable resulted in a report which detailed the differing views of those involved.826 The background paper to the discussion, also titled ‘How should Australia regulate voluntary euthanasia and assisted suicide?’827 was written by Professors Benjamin White and Lindy Willmott of Queensland University of Technology. My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<82> 8.4 This paper summarised Australian law on assisted dying, arguments surrounding the issue, as well as laws and data from jurisdictions that allow some form of assisted dying. My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<83> 8.4 The Committee has also focused on describing how medicine and the law shape end of life experience for Victorians, and how this can be improved. My Comment – this is an irrelevant consideration to the issue of euthanasia. It may be relevant to other legal issues but not euthanasia.

<84> 8.4 The Committee recognises that there are a number of Victorians who wish to have the option of choosing assisted dying. My Comment – multiple repetition of this does not make euthanasia right.

<85> 8.4 The Committee’s Inquiry has led it to conclude that this option would reduce the extraordinary suffering they encounter at the end of life, and the toll this takes on loved ones.

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Item Ref Comment to which I object My Comment – what is the basis for this conclusion.

<86> 8.4 Research into Victorian and international jurisdictions has satisfied the Committee that the methods used in assisted dying are sound and help that small cohort of patients who want this option to achieve a peaceful death. My Comment – what is the reason for the satisfaction. The evidence form overseas jurisdictions is contentious. The judicial authorities I have provided state that where the evidence is contentious, there is an additional duty to provide sound reasons.

<87> 8.4 The evidence is clear that assisted dying can be provided in a way that guards against abuse and protects the vulnerable in our community in a way that unlawful and unregulated assisted dying does not. My Comment – wrong, not clear. This is “white washing” the bad evidence. My Comment – what is the reason for the satisfaction. The evidence form overseas jurisdictions is contentious. The judicial authorities I have provided state that where the evidence is contentious, there is an additional duty to provide sound reasons.

<88> 8.4 The Committee is satisfied, through its research into international jurisdictions, that assisted dying is currently provided in robust, transparent, accountable frameworks. My Comment – wrong, not clear. This is “white washing” the bad evidence. My Comment – what is the reason for the satisfaction. The evidence form overseas jurisdictions is contentious. The judicial authorities I have provided state that where the evidence is contentious, there is an additional duty to provide sound reasons.

<89> 8.4 The reporting directly from such frameworks, and the academic literature analysing them, shows that the risks are guarded against, and that robust frameworks help to prevent abuse. My Comment – wrong, not clear. This is “white washing” the bad evidence. My Comment – what is the reason for the satisfaction. The evidence form overseas jurisdictions is contentious. The judicial authorities I have provided state that where the evidence is contentious, there is an additional duty to provide sound reasons.

<90> 8.4 The Committee travelled to jurisdictions that allow assisted dying to better understand how it operates in practice. In discussions with experts in the Netherlands, Canada, Switzerland and Oregon, the Committee developed a strong understanding of how and why these frameworks have, for many years, met the needs of those seeking another option at the end of life, in the context of robust medical systems. My Comment – Belgium. Belgium. Belgium.

<91> 8.4 The Australian Christian Lobby,828 the Catholic Archdiocese of Melbourne,829 Doctors Opposed to Euthanasia,830 the Australian Catholic Bishops Conference,831

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Item Ref Comment to which I object and the Australian Family Association,832 amongst others, suggested that safeguards in assisted dying frameworks cannot provide adequate protection for the vulnerable. My Comment – How were these views considered. How were Christian values considered?

<92> 8.4 The Committee also met with opponents from overseas jurisdictions where assisted dying is legal, who expressed similar concerns.833 My Comment – a teleconference with Belgium. I expect no attempt was made to facilitate the travel of any representative from Belgium since the Committee was not going to Belgium.

<93> 8.4 While their concerns about the safety of vulnerable people and the need for them to be protected are valid and should inform the design of any assisted dying framework, the Committee did not find evidence to support these concerns. My Comment – “no evidence” needs to be clarified with reasons.

<94> 8.4 The Committee met with doctors, medical and legal experts, palliative care specialists and disability rights groups in jurisdictions where assisted dying is legal and who highlighted the rigorous safeguards, monitoring procedures and high levels of compliance in their jurisdictions.834

<95> 8.4 Critically, as detailed in Chapter 7, Victoria’s existing legal framework on assisted dying does not provide adequate protection of vulnerable people. My Comment - Chapter 7 does not lead me to this same conclusion

<96> 8.4 The Committee appreciates that there are diverse views on the issues this Inquiry addresses and believes that Victorian law can reflect this diversity. The Committee considers that Parliament is best placed to represent such views and to enact reform to improve the end of life options for Victorians. My Comment – recognition does not equate with justifying why euthanasia should be accepted. Indeed when social policy issues are put forward that override the right of the individual to make bad mistakes, why are they not considered.

<97> 8.4 The law should enable the small percentage of eligible Victorians who want help to end their suffering to die surrounded by loved ones, without fear of prosecution.

<98> 8.4 The decision to recommend that Parliament enact an assisted dying framework is not one that the Committee makes lightly.

<99> 8.5 The decision to recommend that Parliament enact an assisted dying framework is not one that the Committee makes lightly.

<100> 8.5 The Committee has thoroughly investigated the issues and been circumspect in its deliberations. It is profoundly indebted to all who made contributions to this work: every person and organisation who wrote to the Committee, those who sat before the

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Item Ref Comment to which I object Committee and told their stories and the experts who shared a wealth of knowledge and experience.

<101> 8.5 A clear and transparent legislative framework is necessary to ensure access to assisted dying for those, and only those, who meet the eligibility criteria. On this point, the Committee supports the statement made in the United Kingdom’s Commission on Assisted Dying Report: My Comment – how objective are the UK Commission on Assisted Dying Report

<102> 8.5 Assisted dying should be incorporated into existing end of life care processes in order to protect and support patients and ensure sound medical practice. Ensuring high standards of patient care requires that health practitioners and regulatory authorities work together in implementing an assisted dying framework. My Comment – This is an irrelevant factor. If people are being killed unlawfully, then, that means those who do this killing should be brought to justice. This sounds awfully like the legalization of drugs arguments – which California and Colorado have gone for. The argument is basically like, “so many people are doing drugs, so rather than make it illegal and sending it underground, legalise it and control it.” This is systemic of a community that has given up protecting itself. Oh, and the State makes so much money of taxing the sale of drugs.

<103> 8.5 The Committee’s research of jurisdictions that allow assisted dying shows that robust oversight, review and reporting will guard against abuse of the framework. The data from these jurisdictions, the academic literature, and what the Committee learned by meeting with doctors and other experts shows that the concerns about abuse have not eventuated. The eligibility criteria and safeguards are restricting access to only those who qualify, and protecting vulnerable people. My Comment - “Robust” is not a reason, it is mere political rhetoric and is not a guarantee of a safeguard. It is not a logical reason.

<104> 8.5 Robust oversight, review and reporting processes will also help to provide more detailed information about end of life experiences so the Victorian Government and the health care sector can provide better outcomes for all Victorians at the end of life, regardless of their treatment preferences. My Comment - “Robust” is not a reason, it is mere political rhetoric and is not a guarantee of a safeguard. It is not a logical reason.

<105> 8.5 Finally, the Committee believes that the needs of the patient must be squarely at the centre of an effective framework. Ensuring that the rights of patients are respected depends on the expertise and judgment of those working within the framework, particularly doctors. My Comment - See my comments above on how little I think of this comment.

<106> 8.5 In saying this, the Committee supports the words of eminent palliative care specialist Professor Ian Maddocks AM: Rather than fighting a rear-guard action, I suggest the proponents of palliative care join forces with advocates of assisted dying, and with mutual respect and dialogue ensure

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Item Ref Comment to which I object that enabling laws are framed with a care and precision that allows no abuse and promotes best outcomes.838 My Comment - See my comments above on how little I think of this comment.

<107> 8.5.1 The assisted dying framework the Committee has developed incorporates the lessons it learned during the Inquiry and reflects the values of the Victorian community at large.My Comment – This is based on self serving evidence.

<108> 8.5.1 The framework has been significantly informed by the Committee’s discussions with stakeholders during its research into international jurisdictions

<109> 8.5.1 It incorporates what the Committee considers to be the best aspects of these frameworks in the context of Victorian culture and values.

<110> 8.5.1 Giving people the right to choose, or not choose, maintains our dignity and humanity. It allows some to avoid some very, very terrible end of life situations. It is the greatest kindness when facing death. Alana Hadfield, personal submission

<111> 8.5.1 This section will explain how the lessons the Committee learned from its research into international jurisdictions informed the recommended framework. Details of the eligibility criteria and safeguards recommended are below at sections 8.6 and 8.7. Details of the oversight, review and reporting mechanisms recommended are below at section 8.9.

<112> 8.5.2 The Committee’s research into international jurisdictions was informative in understanding what safeguards and oversight mechanisms work well and what could be improved. The Committee also observed that an assisted dying framework must reflect the values and culture unique to a particular jurisdiction. Certain elements of each framework are effective precisely because they reflect this uniqueness.

<113> 8.6.1 Assisted dying should in the vast majority of cases involve a doctor prescribing a lethal drug which the patient may then take without further assistance. The singular exception is where people are physically unable to take a lethal drug.

<114> 8.6.1 am now almost 86 years old and I want the peace of mind that the knowledge of a legal option of medically assisted dying would give me and my family, if my dying were to become too distressful and prolonged. Anne Kotzman, personal submission

<115> 8.6.4 Assisted dying should be accessible only to those who are:  at the end of life (final weeks or months of life), and  suffering from a serious and incurable condition which is causing enduring and unbearable suffering that cannot be relieved in a manner the patient deems tolerable. My comment – this does not justify assisted dying.

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Item Ref Comment to which I object

<116> 8.9 The Committee recognises that there are genuine concerns about protecting vulnerable people and ensuring safeguards are followed in an assisted dying framework. My comment – if this is recognised, then is that not correct that Andrew Denton is not justified in calling Christian’s concerns FUD

<117> 8.9 The Committee shares these concerns, and looked to the international jurisdictions that allow assisted dying to discover what oversight, review and reporting mechanisms they use. This included investigating how well mechanisms work, and what changes people working within the jurisdictions would make to improve their own framework.

<118> 8.9 Accordingly, the Committee’s recommended framework includes a robust oversight, review and reporting structure for the assisted dying framework itself, and end of life care more generally.My Comment - “Robust” is not a reason, it is mere political rhetoric and is not a guarantee of a safeguard. It is not a logical reason.

<119> 8.9 A theme that emerged during the Inquiry was that reliable and consistent data in current end of life care in Victoria is lacking. My Comment – We all know that the people who kill will not keep records to evidence their handywork.

<120> App7 Appendix 7 Arguments for and against legalising assisted dying summary

<121> A7.1 The arguments for and against legalising assisted dying are extensively covered in academic literature, and public and political debate. The Committee learned that these arguments are largely consistent across a variety of jurisdictions. My Comment – no one reading this Final Report is able to see what the mind of the of those in the majority of the Committee thought of these academic literature, and public and political debate. If these academic literature, and public and political debate are so conclusive that everyone knows them, why spend 10 months and a million dollars or so travelling and holding hearings – perhaps as a pretense to normality and pretense as to due process. Did the Committee simply do an exercise of verifying academic writings? If so, then which academic writings and why some not others. Why only those in favour of euthanasia?

<122> A7.1 This pattern was reflected in evidence the Committee received. There were some arguments raised, or formulated in a particular way, in submission and hearing evidence that were not represented as strongly in academic literature. However on-the-whole the submission and hearing evidence the Committee received aligned with the broader arguments on assisted dying.

<123> A7.1 The arguments are summarised here based on Inquiry submissions and witnesses. They summaries are informed by four recent investigations into assisted dying, described below. This summary is not exhaustive, nor does it offer a critique of the arguments. Rather it shows the most common arguments the Committee encountered through its submission and hearing process and in the academic literature.

<124> A7.2 ‘How should Australia regulate voluntary euthanasia and assisted suicide?’ Benjamin White and Lindy Willmott (2012):861

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 105

The Majority of the Committee’s reasons show it didn’t “turn its mind” to the Facts

Item Ref Comment to which I object My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<125> A7.2 Québec Select Committee on Dying with Dignity Report (2012):862 My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<126> A7.2 ‘The current legal status of assisted dying is inadequate and incoherent…’ Report of the UK Commission on Assisted Dying (2011): My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<127> A7.2 ‘End-of-life decision-making in Canada: The report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making’ (2011):865 My Comment – selection of what evidence too admit directs the outcome The Committee looked at reputation of the author not the contents of the report.

<128> A7.3 Before presenting the arguments for and against assisted dying, it is important to note the use of the term ‘dignity’. My Comment – this is sociological, theological as well as “peaceful” No clear argument for the exclusion of sociological, theological was provided. If so, that may mean that peaceful is not the sole criteria for what is a dignified death. Bravery in the face of pain is very dignified. Shows fortitude of character which is respectable.

<129> A7.3 Arguments in the assisted dying debate often use the term ‘dignity’ or ‘human dignity’. Submissions to the Inquiry used the term both as an argument for, and an argument against, legalising assisted dying. Academic literature also recognises the difficulty surrounding use of the term.866

<130> A7.4.9 There is a long-standing history of strong public support for assisted dying in certain circumstances. In Australia, opinion polls have consistently shown public support for assisted dying. My Comment – what about Christians who live in Victoria. Actually, as I mention it, how about people who are Muslima or Jewish, not just us Christians.

Legend: CF = Chair’s forward ExSum = Executive Summary

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 106

Annexure 20.: Use and Abuse of State Supreme Courts Reason for drafting this annexure

1. I have seen the draft New South Wales legislation which called for resorting to the New South Wales Supreme Court for intervention to protect the integrity of the process and act as an additional safeguard. I would not be surprised if many a politician, and maybe many a person on the street, would see this as a worthy outlook

Objections to Using the Supreme Court to Intervene

2. I object to an state Supreme Court being used as a backstop in euthanasia implementation legislation for the following reasons: (a) It is not the role of any supreme court or any court to act as a supervisor in any dispute. This is clear from decisions over long periods of time. The role of a court is to decide cases and to give orders that are final orders to deal with matters, not, to act as a police officer – this is especially if specific performance is being ordered. (b) The granting of permission for people to die may force Judges to make decisions as to end of life that they do not wish to be involved in making; (c) the need for judicial supervision is tantamount that a system will fail and that people will be abused if but for the intervention of the court, good reason not to have euthanasia in the first place. (d) court resources will be stretched because decisions will need to be made very quickly before the person dies; (e) the cost of going to court will be very expensive for someone who wants justice to protect the person that they love; (f) the duty judge will have his or her capacity stretched, and other urgent matters seeking injunctions will be “not reached” because of a life and death injunction application – unless another duty judge is employed (at the taxpayer’s expense).

WHY THE COURT IS NOT A SUPERVISOR

3. In relation to the issue of the court not being a supervisor see the case of Ryan v Mutual Tontine Association [1893] 1 Ch 116 which was later modified in Posner v Scott-Lewis [1987] 3 All ER 513. 4. It will be up to the Supreme Court to determine if it wishes to be involved, however, the legislature likes like it is willing to force an obligation onto the Supreme Court. 5. Where parties to the euthanasia are needing to repeatedly return and appear before the court with updated information in affidavit form, the displeasure of the Supreme Court will be duly received by them, and this will be an example of that court being abused for a system with is otherwise incapable of being “safe” as the proponents of the system with everyone to believe.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 107

Chapter 4: Philosophical Arguments Annexure 21.: The falsehood of the “we do not treat pets this way” arguments 1. I do not agree with the line of reasoning, that says, in various wordings:

“We don’t treat our pets this way. We put them out of their misery, so why do we not put people who we love out of their misery”.

2. The first person in the world to die under legislation that allowed voluntary assisted dying, Mr Dent, in the Northern Territory, in AUSTRALIA, as having expressed this outlook and justification for his own death.

3. Another example on national television in Australia is where Mrs Nikki Gemmel on Q and A, where I was in attendance said:

“NIKKI GEMMELL No, I feel it was like a slanting of what I was trying to say and it was taking all the emotion out of it and this is a deeply emotional situation. I feel like I’ve been on the coalface of euthanasia now. We don’t do this to our animals, to our pets. We don’t see them suffering like this.”

4. In answer to this argument, I reject the line of thinking it is entirely for the following reasons:

(a) We treat pets as disposable, we put them down because they are disposable. People are not;

(b) So often, we put pets down because they are too expensive to give proper treatment to them. This is not the basis for euthanasia (not officially, though probably some economic rationalists have had this thought);

(c) To be treated as a disposable pet would be to reduce human dignity, not esteem human dignity which is the official line for justifying euthanasia;

(d) Pets are not always put down for “incurable pain”, as is the claim for humans being put down.

(e) The death of a pet does not have the wide reaching relationships and impact on society that the death of human has – unless the pet is famous and the human has no friends; and

(f) The death of a pet has no social degradation like that of a human being killed does.

5. Also, humans are made in the image of God, our pets are not.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 108

Annexure 22.: What is human Dignity? What is dignity for the dying? 1. The issue of “dignity” is very important in this euthanasia debate. Indeed, the most vocal of organisation uses the word dignity in their name (“dying with dignity”). This “Annexure 14: Substantive Issues Part 4 –Dignity, Dying and Suffering” will consider the concept of “dignity” and propose the argument that euthanasia does not give dignity.

Expert opinion Honourable William Cox AC, RFD, ED,QC, former Chief Justice of the Supreme Court of Tasmania

2. I believe that struggling through adversity is very dignified. I am therefore very much in agreement with the words of, Honourable William Cox AC, RFD, ED,QC a former Chief Justice of the Supreme Court of Tasmania, where His Honour wrote as follows:

27 July 2009

The Secretary, Joint Standing Committee on Community Development Parliament House Hobart

Dear Sir or Madam,

I write to express my opposition to the Dying with Dignity Euthanasia Bill.

The very title proceeds from a false premise namely that one who dies at his own hand or enlists the aid of another for that purpose dies with dignity. On the contrary, it is my submission that one who accepts the disabilities, mental or physical, which may precede death and who resists the temptation to avoid them by this drastic course dies with true dignity. His or her dignity is never diminished by even the most intolerable pain, the feeling of helplessness arising from not being able to control one's bodily functions or the inability to recognise loved ones and the other afflictions of mental deterioration.

…

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 109

While I have the deepest sympathy for those to whom the Bill professes to offer comfort and a solution to their problem, the legalization of what has for centuries been regarded (properly in my view) as Murder can never be justified.

Expert opinion Dr Kristi Giselsson re Honourable Justice Sam Filer

3. An example of where fear of death and not physical pain has motivated suicide and set a terrible precedent as to justifying the ending of life is set out in the following example in a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009, Dr Kristi Giselsson Doctor of Philosophy and Honorary Research Associate, University of Tasmania – accessed at the Realdignitytas website included in the links at the end of this letter:

And surely a fear of what might happen is not an adequate excuse for killing yourself or another human being, for we may never actually experience that which we fear as the horror or agony we will anticipate it to be – as we often experience in our daily lives and as clearly evidenced in the case of the Honourable Justice Sam Filer. Justice Filer, an American, suffered from Amyotrophic lateral sclerosis (ALS); a degenerative disease of the spinal cord that leads to total paralysis and where the sufferer can eventually only breath artificially via a ventilator. It has been argued that allowing such sufferers to continue living via a ventilator is futile, given that the patient will eventually die nonetheless, but Justice Filer himself spoke publicly – via a voice synthesiser – at a conference regarding his condition. He is quoted as having said that: “Throughout the ALS process, I have learned many things. I have learned that ALS does not necessarily mean a death sentence, that I am not living with a life-threatening disease, but rather with a life-enhancing condition.”[11] Clearly, a terminal illness does not automatically mean that the sufferer will be in such intolerable mental or physical agony that the only option is to have them ‘put down’ as we might an animal, and legalising euthanasia would only serve to enshrine as law the erroneous fear that this is indeed so. Rather than enhancing a person’s dignity, worth and humanity, I suggest that such a move would actually reduce humans to the status of animals.

In light of the above objections, I urge you with all my heart to oppose the legalisation of euthanasia in Tasmania.

[11] Bach and Barnet, 19995, as cited in Kerridge, Lowe, McPhee, 2005, p. 253.

CONCEPT OF DIGNITY

4. In my view (and one does not have to be a Christian for form this view), the concept of dignity is better derived not from:

(a) Avoidance of pain;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 110

(b) Evasion of pain; and/ or

5. In my view, a person, be they sick and/ or elderly can, should, must and must be encouraged to, find dignity in all of the following sources:

SCENARIO NO. 1 DIGNITY FOR THOSE WHO ARE ILL BUT NOT IN THE FINAL FEW DAYS

6. To people who are dying and in the situation where they are ill, (including dementia etc), but not in the final few days, I say, they need to find and be encouraged to find dignity in the following ways:

(a) Human dignity tells a person “I have a right to self-esteem”;

(b) Human dignity tells a person “I do not have to listen to people who want to attack my self esteem”

(d) Human dignity tells a person “no one can tell me I have no right to live”

(e) Human dignity tells a person “my achievements not being as much as others does not mean I have no value, therefore, my dying affects no one”

(f) Human dignity tells a person “I have a right to love from others”

(g) Human dignity tells a person “I am worth more than my money”

(h) Human dignity tells a person “I have the right to food and medical care”

(i) Human dignity tells a person “I have the right to practical help to function and live”;

(j) Human dignity tells a person “I have a right to operate on a day to day basis just as much as anyone else does, even if I am sick and/ or old”.

7. A person who is dying’s self esteem (and feeling of dignity) will be increased when society, their friends and family show that person that:

(a) In the carer’s eyes, that person’s life is precious;

(b) In the carer’s , that person’s remaining time is not a burden;

(d) In the carer’s , assisting that person’s in their difficult circumstances is a chance to return the favour extended to them when that person was able bodied and of sound mind;

(e) In the carer’s , the person offering the care is emotionally rewarded by expressing love;

(f) That the carer’s do not isolate the individual; and

(g) That the carer’s do not complain and are able to show the individual that that person is “worth the effort”.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 111

8. A person who is dying’s self-esteem (and feeling of dignity) will be increased when that person is encouraged to realise:

(a) That they have many achievements in past life to be proud of;

(b) That feeling vulnerable due to illness and aged frailty is a normal feeling;

(d) That they are setting an example to others for struggling through times of trial;

(e) That their enjoyment of life is seen by others, and, is reason for others to be inspired.

9. I am highly critical of the large number of celebrities who are in support of Dying with Dignity. In particular the female celebrities. In many ways, they set a false and unrealistic notion, because for them, their legacy is national and how they are remembered is going to be very public. In particular, where that woman was very beautiful, to not want to suffer the affects of cancer on a previously beautiful body when that person could otherwise have lived is an act of capricious vanity. The dignity for that person is based on an artificial and skin deep value system which fades with age in any event. People who are more ordinary, including myself, that standard is inapplicable and should not be considered as a worthwhile measure of dignity.

10. They need to set an example of looking after oneself whilst young and able to make a difference to one’s health;

11. They need to feel rewarded for putting effort into other people’s lives in previous days when the dying person was healthy and strong;

12. They need to see that kids and others need to earn the inheritance by looking after the dying person in the dying person’s hour of need;

13. By enjoying the contribution that they have made in the past to society, family, friends and looking back on that as reason to enjoy life now at a slower pace, knowing it is someone else’s turn to take responsibility; and

14. We must not let ourselves be dominates by a society that values “youth and beauty” over the weak, old and frail. When a society does value “youth and beauty” to excess, those who do not or no longer possess the “youth and beauty” that they see on the television screens, in movies and elsewhere will feel valueless and not worthy of living, or depressed and not wanting to live. But when there is so much money to be made on beauty products and fashion, the almighty dollar will prevent a move away from “youth and beauty” as a social value.

SCENARIO NO. 2 DIGNITY FOR THOSE WHO ARE ILL, AND ARE IN THE FINAL FEW DAYS

15. To people who are dying and in the situation where they are ill, and are in the final few days, I say, they need to find and be encouraged to find dignity in the following ways:

(a) As for Scenario 1; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 112

(b) that they are almost at the finish line, and that finishing a race strongly is of great strength and very dignified, no matter the level of pain (I should know, I have done 5 marathons and 42 half marathons).

(c) In a consumer society where convenience and cash are kings, we must not allow ourselves to treat each other like other people should appear and disappear (die) with the convenience of ordering food on “menu log” or any other smart phone “app” or online website.

GOD IN THE PICTURE

16. It goes without saying, that when a person has faith that Jesus is in the picture for them, then, dying and pain are not undignified, that person’s dignity comes is dependent on the love of God in Christ, and that hope and assurance is of great comfort in the shortness of life I the last days of a person’s life and is of comfort to know when a person faces a battle to stave of cancer or other illness over an extended period.

“DYING WITH DIGNITY” AND THE CONCEPT OF DIGNITY

Wrong Comment No. 1

17. On their website, the NSW Branch of Dying With Dignity on web page titled “Key Questions” and in answer to the Key Question “How many people are affected by the issue?” they say:

Nearly 150 000 people die in Australia each year. More than half of those deaths occur in hospitals in painful and undignified circumstances. Medical science is continually finding ways to extend life into older age but that does not make death any more peaceful, and possibly it increases the average time taken to die.

For each person dying there are friends, relatives and medical staff who are affected by a painful and undignified death.

18. According to this comment, euthanasia should be administered to over 75,000 Australians annually.

Wrong Comment No. 2

19. On their webpage “Australians Want Change” Dying with Dignity NSW, show as much as I can find about their definition of dignity.

…voluntarily end their life in a humane and dignified manner. As a consequence they may be forced to suffer

 physically,

 emotionally and

 existentially (whatever that is supposed to mean, but it sounds believable as it is a big word).

…individuals sometimes resort to

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 113

 violent,

 undignified (whatever that means)

methods to end their lives. These methods are very distressing for the ill person, as well as for their loved ones.

 …to die with dignity

 in a manner acceptable to themselves

Wrong Comment No. 3

20. NSW Branch of Dying with Dignity, ask the following question on the webpage titled “key Questions”

How can I be sure voluntary euthanasia legislation won’t be abused?

VE laws lay down stringent conditions that have to be met before a doctor will agree to a patient’s request for help to die.

A typical example of legislative safeguards is in the Belgian Act on Euthanasia 2002. The physician must ensure that the patient’s request for euthanasia is “voluntary, well-considered and repeated, and is not the result of any external pressure.”

Other common safeguards ensure that two doctors confirm that:

 the patient is mentally competent (and not suffering from clinical depression), and

 the patient is informed of all other options, including palliative care.

21. This is misleading and deceptive conduct, this comment is literally six (6) years out of date and is entirely not a truthful representation of the law in Belgium as it now stands. Those safeguards have been broken down.

22. Dying with Dignity NSW quite simply does not define what dignity is. Only, that it has some connection with pain. If that is the only cause of a lack of dignity, then, there are so few examples of where palliative care cannot assist the patient, then that results in the conclusion that the new legislation would be more than is ever going to be necessary to prevent the problem.

23. Dying with Dignity NSW, and mutatis mutandis Dying with Dignity around Australia are again using emotion, fear and what I call the “downward looking, sad faces with a dramatic overacted and monumental grimace” (as the classic pose on all people who appear in photos for organisations such as Dying with Dignity NSW) to aggrandise the alleged suffering, and words to say that the whole Australian population will be suffering each and every time one of us dies, it that over 75,000 Australians will suffer an undignified death with paid – which is not the case.

24. There is the well documented case pro-euthanasia advocates producing videos “me before you” to encourage euthanasia as an option for disabled people which goes against the concept of fostering dignity:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 114

A 14-year-old Chilean girl, who asked the Chilean President, to allow her to die by euthanasia, has now changed her mind and wants to live.

Valentina Maureira, who lives with cystic fibrosis, created a YouTube video last month asking the Chilean President, Michelle Bachelet, to allow her to die by euthanasia. She got the idea from Brittany Maynard’s assisted suicide campaign.

Valentina has changed her mind after meeting with a family from Argentina.

He said Valentina was given hope by meeting someone who had survived beyond age 20 with the disease.

Valentina’s story is emotionally charged. If Valentina had died by euthanasia, her options, potential treatment and opportunity to change her mind would have ended.

PARLIAMENT OF VICTORIA’S COMMITTEE AND THE CONCEPT OF DIGNITY

25. The Parliament of Victoria’s Committee treated the idea of “dignity” by deciding not to define it other than to say dignity is about “choice”, and therefore allow an open ended viewpoint on what “dignity” is – except those interpretations of dignity which did not match what they wanted to determine.

Appendix 7 Arguments for and against legalising assisted dying summary

A7.3 Dignity — Difficulty in using the term in the assisted dying debate

Before presenting the arguments for and against assisted dying, it is important to note the use of the term ‘dignity’.

Arguments in the assisted dying debate often use the term ‘dignity’ or ‘human dignity’. Submissions to the Inquiry used the term both as an argument for, and an argument against, legalising assisted dying. Academic literature also recognises the difficulty surrounding use of the term.866

Extracts from two of the reports described above867 demonstrate that others investigating these issues have encountered the same phenomenon.

The Report by the Royal Society of Canada Expert Panel on End-of-Life Decision-Making includes a detailed discussion of the term based on historical sources, Canadian Supreme Court decisions, and recent moral philosophy, concluding:

… the same pattern running through all three, namely a tendency to make dignity mean one thing and its opposite, and to cloak potentially controversial moral consideration – individual autonomy on the one hand, and some quality inherent within agents, in virtue of their being human on the other – in the pleasing language of dignity. In light of this conclusion, the Panel asserts it is best that debate about moral issues, such as assisted death, absent discussions of human dignity; rather, the values that lie behind this concept, on both sides of the debate, be explicitly considered.868

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 115

Australian experts on health law reach a similar conclusion:

Because human dignity is a concept which is potentially relevant to both sides of this debate, it has not been included in the above outline of arguments for and against VE [voluntary euthanasia] and AS [assisted suicide]. Instead, in the arguments supporting reform, dignity is considered in the narrower context as part of the justification for allowing individual choice in decision-making at the end of life. On the other side, dignity is relevant in advancing the argument concerning the sanctity of life, and the need to protect human life.869

This Appendix will therefore avoid using the term ‘dignity’ focusing instead on the arguments it is used to espouse, as explained in the extracts above.

866 See for example Todd TW Daly, ‘Whose dignity? Reflections on a deceptively difficult term in bioethical debates’, Ethics and Medicine, vol. 29, no. 3, 2013.

867 See section A7.2

868 Udo Schüklenk, et al., ‘End-of-life decision-making in Canada: The report by the Royal Society of Canada expert panel on end-of-life decision-making’, Bioethics, vol. 25, no. s1, 2011.

869 Benjamin P White and Lindy Willmott, ‘How should Australia regulate voluntary euthanasia and assisted suicide?’, Journal of Law and Medicine, vol. 20, no. 2, 2012.

26. I submit that this annexure to my letter:

(a) the Majority of the Committee asserting:

“dignity is considered in the narrower context as part of the justification for allowing individual choice”

Is not

(i) a neutral position to take;

(ii) is a pro-euthanasia position to take;

(iii) is a self serving position to take; and

(iv) needs to be supported by reasons as to why “choice” is the supreme determinate as to why euthanasia should be permitted.

(b) has a fundamental problem that “choice” is by definition unlimited, therefore, for the choice determinate to be freely and fully exercised, then the parliament, acting only on “choice” will, if it is consistent, have no human right to limit that “choice” to the terminally ill whose death is imminent, ie in the next couple of days. For this reason, the majority of the Committee has given its deemed approval to:

(i) alcoholics choosing to die;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 116

(ii) people with depression choosing to die;

(iii) people with years to live with a disease choosing to die;

(iv) people with decades with a non-live threatening but permanent injury choosing to die; and

(v) anyone else who wants to, to choose to die.

The Majority Report is gutless and irresponsible and avoids one of the most critical questions, on the basis of not wanting to rule against itself on the most basic principle, in the Final Report says as follows (emphasis mine):

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 117

Annexure 23.: “Autonomy’ of the individual ABSOLUTE AUTONOMY IS ABSOLUTELY DANGEROUS

1. I am concerned when people do what they want in the absence of care of the consequences:

(a) on themselves;

(b) on their families and immediate associates; and

DIGNIFIED USE OF AUTONOMY

2. In my view, a person who wants to maintain dignity and kill themselves should, in the interests of being consistent, also be concerned about their maintenance of dignity:

(a) That they have: and

(b) That they show the world they have

In the way that use their autonomy in a dignified way.

3. I suggest that the way a person in 2 above can show the world that they use their autonomy in a dignified way is as follows:

(a) Continuing to live;

(b) Being there for others;

(d) All the other demonstrations of dignity set out in this letter.

UNDIGNIFIED USE OF AUTONOMY

4. In my view, if “pain” and dignity go hand in hand, then there is one very unavoidable conclusion, which is:

“If a person uses their autonomy that causes pain to themselves or others, then, by virtue of the pain that is caused and experienced, the use of that autonomy is undignified. If that pain is caused by death, then, that is an undignified death.“

Sort of defeats the point of euthanasia doesn’t it.

DR CHRISTOPHER NEWELL AM 5. A more learned opinion on this issue than what I have is provided by Dr Christopher Newell AM, Associate Professor and Lecturer in Medical Ethics, University of Tasmania, in his paper titled “Medical killing and people with disability” submitted to the Joint Standing Committee on Community Development on the Dying with Dignity Bill 2009

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 118

Death and Autonomy Exercising a claimed "right to die" could also lead to an interesting situation. Proponents of euthanasia seem to presume that death is a more desirable state than living with the illness or disability described in either the case studies or other circumstances that they describe. Yet, how can we know this? There would appear to be either a presumption that the state of death is a state of nothingness (presumably for the atheist) or that it is a positive state.

Yet how can we know what life will be like when we are dead? It might well be that it is horrendous. It could be a state of indescribable pain or suffering, or some form of intermittent variation on this. We really don't know. Yet, in most other instances when we claim a right to autonomy, or self-rule, we would also claim the right to be able to rectify a situation where we have made a mistake. For example, even with permanent medical procedures, there is still either a presumption of ongoing autonomy or a desire for this to occur. We can change our mind. Death would appear to be a rather different state about which it is difficult to change our mind. Hence, we face the logical contradiction of constraining autonomy in the name of pursuing it.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 119

Annexure 24.: “Choice’ of the individual LESSONS FROM TASMANIA

1. In the words of the Honorable Ray Groom, former Premier of Tasmania and Chairman of Southern Cross Care, In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Aged care - protecting the vulnerable”, where the former Premier of Tasmania said:

7. 1998 COMMITTEE REPORT The Community Development Committee, then differently constituted, did examine a similar Bill during the course of 1997 and 1998 and after an exhaustive enquiry made the following principal finding:

…

"5.29 The Committee found that the legislation of voluntary euthanasia would pose a serious threat to the more vulnerable members of society and the obligation of the State to protect all its members equally outweighs the individual's freedom to choose voluntary euthanasia."

GENERAL DISTRUST OF THE RHETORIC OF “CHOICE”

2. In my respectful submission, I generally distruct the ambiguous word of “choice”. I generally associate this with people who are keen to see the legalization of same-sex marriage. Ie

“that people should have the choice on who they marry”.

3. I see this as closely akin to the human right to die argument – and subject to all the same detractions.

4. I also see this word choice as being easily manipulated by the pro-euthanasia as a want that they tell people that they should have when, in my view people who are suffering can well do without.

5. I also see this as being a “comfort” to “know it is there if I need it”. This is fear of dying and fear of pain being encouraged by people who are in favour of euthanasia. In reality, the problem is either going to or not going to affect the person in their end of life no matter if euthanasia is lawful or not.

IS THE CHOICE REALLY A “FREE CHOICE”

6. I question if a choice is really a free choice, even if it is voluntary and with a person who has capacity. The person who wishes to die will still:

(a) be taking advice from family;

(b) be taking advice from doctors – often the wrong doctors from the wrong medical discipline;

(d) be supervised by nurses;

(e) be supervised by bureaucrats;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 120

(f) be encouraged by anyone who has an interest in the death;

(g) in the case of a disabled person, the people who are paid/ obliged to look after them; and

(i) by legislation.

7. I question if a choice is a free choice when that free choice is, or shuold be, constrained by the soon to be deceased’s responsibilities and obligations.

DR CHRISTOPHER NEWELL AM 8. A more learned opinion on this issue than what I have is provided by Dr Christopher Newell AM, Associate Professor and Lecturer in Medical Ethics, UTAS in his paper titled “Medical killing and people with disability” submitted to the Joint Standing Committee on Community Development on the Dying with Dignity Bill 2009

Choice Proponents of medical killing also use the argument that it is a person's choice. This has certainly included a few people with disability. (See for example, Hwang, 1995). Yet, if social policy were to recognise such an unfettered right to autonomy why should we constrain that choice to a medical practitioner?" Current formal medical training does not cover how to kill someone, although certainly that could easily be rectified. In other areas of life, we allow important decisions and rituals to be administered by officials that have some standing in life. For example, nurses, and the types of people who can witness signatures or invigilate examinations: not just medical practitioners, but ministers of religion, school teachers and the like. It would be cheaper and easier and perfectly feasible to have tablets or injections freely available, if that is to be deemed someone's right. Alternatively, specially trained people could be provided and at a lower cost to the community or individuals than a GP. Indeed, why should that claimed right be constrained by judgments about disability or a likely time before we die?

In addition, the involvement of the medical profession in administering death according to some form of bureaucracy may be a barrier to the "good death" that we all seek. Such an issue is highlighted by those who speak of the development of suicide pacts with the active assistance of medical practitioners. The regulatory hoops provided by the Northern Territory (1995) legislation, as amended, which requires certification by three medical practitioners who meet various criteria, can hardly be seen as conducive to the "good death" we all seek. [5] It is also pertinent to consider that one of the aims of the disability rights movement in Australia has been to remove ourselves from needless "medical dominance", yet the bureaucratic regulation of death could actually be far from liberating in effect.

The Northern Territory situation also suggests that rights have not been well protected by a process

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 121

which saw parliamentary debate and proposal many amendments continuing until the early hours of the morning, and great uncertainty for some days as to the exact nature of the legislation that had been passed. As many commentators also noted the Act was unworkable and needed to be amended due to poor research as to the current qualifications of psychiatrists. (Manne, 1995)

Further, such regulation as offered by the Northern Territory (as amended this year) also allows and requires medical practitioners to make decisions as to who they or their colleagues will kill. It relies upon the judgments of professionals who are unlikely to have direct experience of having serious disability or terminal illness. In such circumstances it seems an unwarranted form of paternalism for doctors to decide who merits euthanasia and who doesn't.

9. It must be said, that just because people want something, it does not automatically mean that they should get it or be given it. When people want something that is bad for them and for society, even though it has instantaneous gratification, the long term benefits must be assessed. When people have a tendency and coincidence towards the immediate relief without considering the need for delayed gratification (ie a stable society where people are protected) then laws need to be in place to guide people away from short term solutions that have long term consequences.

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Annexure 25.: A human right to die ITS MY RIGHT? OR IS IT? 1. This is a pretty bleak outlook on life if one wants to die, just because they can.

2. Whilst a person does have a bare right, that “right”, in my opinion, when exercised is done so in the absence of all of the following:

(a) a dignified use of wisdom;

(b) a dignified use of personal fortitude;

(c) a dignified use of modelling to others that the person who suicides is of strong moral fibre and to be respected as a person who is so;

(d) a dignified use of compassion for others to “stick around” longer and care for others;

(e) a dignified sense of self worth, that the person esteems themselves enough to say:

“I have the dignity that says I deserve to stay around as long as I damn well can, who cares what others want me to do”.

If a person cannot say that about themselves, then no amount of pain avoidance by an early death will give them dignity.

LOWEST COMMON DENOMINATOR

3. Whilst I may be called an over energetic person, perhaps that is true, I cannot work out why Australia should determine its values and social outlooks by people who want to die. Why cannot Australia focus its values on people who want to:

(a) live a long time;

(b) be positive;

(d) be encouraging.

Rather than focus on the attitudes of people who have a negative outlook and who are so often the victims and find themselves in circumstances that are wrought into existence by their own negative attitudes and who seek to exercise their “right to die” as a means of self-fulfillment as they have nothing else to fulfill them. Granted, not all people who seek euthanasia are the negative type, but, when that is the voice of the person who is calling for change, I think they have more wrong in their attitude than merely calling for the right to die.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 123

DR CHRISTOPHER NEWELL AM 4. A more learned opinion on this issue than what I have is provided by Dr Christopher Newell AM, Associate Professor and Lecturer in Medical Ethics, UTAS in his paper titled “Medical killing and people with disability” submitted to the Joint Standing Committee on Community Development on the Dying with Dignity Bill 2009

A Right to Die?

Certainly, the arguments of proponents of euthanasia have predominantly been formulated to rest upon certain basic claims. The first of these is the claim to a "right to die", which might more accurately be called a claimed "right for another to kill us" where another person is involved. This is based upon a prior right to autonomy or self-rule, which is examined later.

Yet, the claim to a right to die also prompts me to ask a logically prior question – whether or not we have a "right to live" and whether or not that is adequately recognised in law? In Australia and around the world, there are already many human rights violations. While we have the UN Declaration of Human Rights, and anti-discrimination laws, we certainly don't have an adequately articulated "right to live", which is consistently followed in law, policy and everyday practice. Certainly, as a person with disability I routinely encounter many basic violations of my right to live in society. In short the right to live that I might claim is imperfectly articulated and realised in Australian law and practice, and does not adequately protect Australians with disability and others on the margins.

However, we could argue that we have a right to choose to die, since we have a right to choose- or think- many things. The practical question, however, is whether or not we have a right to enact that choice, and to compel or request others to do it as our agent? In addition, will this curtail the rights of others?

He further says

Human Rights

Taking a human rights approach, as spelt out in the UN Declaration of Human Rights, people's rights are held to be inalienable - they cannot be taken away from them. (See for example Fleming, 1995, p.13) For example, I might claim that it is my right to sell myself into slavery. Provided I am single and have no other attachments, at an individual level, this might seem quite reasonable. Yet, the institution of slavery is regarded by many in society as barbaric. In exercising my claim to autonomy or liberty I would also be curtailing that liberty. In this way, the notion of the inviolability of my human rights would be contradicted.

In the same way, I refute that we have a right to die- to violate our inherent human dignity- but would agree that we do have an inherent right to ensure that our persons are not violated, for example by treatment we have refused. [3] We also need to be assured that those rights are protected in law and practice, but I remain to be convinced that we actually have a "right to die". Indeed, which takes precedence for proponents of such a right- the right to live or die? At times they would be in conflict

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 124

Annexure 26.: No Consequences on Others ONE INDIVIDUAL DIES, AND FAMILY AND SOCIETY ARE HARMED 1. I cannot accept that when a person dies, that, that has no affect on others. Some affects may be good, and some may be bad for the person who is so affected by the person’s death.

2. When a person “calls it quits” and ends their life, saying there is no more to achieve, no more to do no more reason to be around, the clearest response from a “loved one” is

“Aren’t I enough reason to stay around for””

3. Further at a most basis level, society needs people to be around, whatever their level of contribution to society. A person need not be a doctor, lawyer, professional of some sort to be valuable to society. That a person chooses to live means:

(a) There is consumer demand;

(b) There are means of production;

(d) There are people who can donate from what they did accumulate;

(e) They can share skills;

(f) They can be people who give dignity to others, rather than focusing on themselves and their own dignity, and help others not want to “call it quits”;

(g) They can be the person who takes care of others; and

(h) there is a community of living people – and that gives people something to be a part of even if the people they see around them are strangers.

4. The family of the euthanised person are shown human misery is treatable only with death and their opinion on life will be degraded, leading to depression, and a cheapening of their own lives, if they see problems answerable by suicide;

5. Society is harmed as suicide becomes the norm, valuable old people are lost prematurely, and the death culture is permissible.

6. Society is harmed when human life is considered to be of little value, that suicide is just as valid as living.

DESTRUCTION OF THE ATTITUDES OF THE YOUNG

7. One can only pity the harmful consequences on the attitudes of the young who witness older people die.

8. I can only see the following happen, to a greater lesser degree, but it would not happen if euthanasia did not cause people to die.

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“Was it my fault that the person chose to die?” – much akin to when children blame themselves for their parents separating and becoming divorced.

“Why should I struggle? Uncle/ Auntie [insert] died, suicided, so I might do the same. I cannot see any way out”

The lesson learned will be what shows up 20 or 30 years later and will not be recorded on any statistics in the short term. But the latent damage will surface long after the cause or the inspiration for the suicide will be untraceable unless ther deceased person tells you – which they will not unless they leave a written note.

THE DISABLED AND “VULNERABLE”

9. The affect of legalization on people who are disabled, vulnerable and those who society now allows doctors to consider not worthy of life will be disastrous, degrading, demeaning and deadly. People who society introduced statue to protect, will receive a fresh round of definitional description as being classes of persons who are ripe for removal. This consequences where it is acquiesced or even actively approved by society is an adverse affect of the dying of people who are so deemed. So called “progressive people” will soon be ask:

”If you have killed one of these people and we say that is okay, why not kill them all? More of the same!!!”

PROFESSOR JEFF MALPAS AND PROFESSOR NORELLE LICKESS

10. Professor Jeff Malpas Doctor of Philosophy, UTAS and Professor Norelle Lickess Clinical Professor, University of Sydney In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Euthanasia and the issue of autonomy” confirm that there is, what some others deny, affects between suicide, legalized killing to bring about suicide, and the immediate affect of the deceased’s absence and also on social norms and values: They wrote as follows:

Much of the argument regarding euthanasia and physician-assisted suicide can be construed in terms of the tension between an insistence on the importance of individual choice and autonomy, often fairly narrowly conceived, and concerns about the broader social and interpersonal consequences of such choices. We believe that there are important questions concerning our conception of individual and social good that are at stake in this discussion. It is easy, however, to overstate the tension between individual autonomy as against social good.

….

The fact that the act of killing or assisting in such killing can itself cause serious harm and distress for those involved is something that is itself directly tied to the value placed on human life and the prohibition against the taking of such life – and as we know from the experience of war, the reduction of the feeling of distress at the involvement in the taking of another’s life can itself lead to a reduction in the value placed on human life and in the force of the prohibition against taking it, and vice versa.

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Chapter 5: The Evidence Annexure 27.: The Northern Territory 1. The euthanasia debate in the Northern Territory has territorial independence at its core and has been fatal, as everyone knows, on four occasions.

(a) 22 September 1996, Bob Dent, 66, died with Nitschke's help. He had prostate cancer. He made the decision based on his own cirmstances and did not consider the social issus invovled hn is death.

(b) On 2 January 1997, South Australian, Janet Mills, 52, died with Nitschke's help. She had a non-fatal, albeit painful, condition called mycosis fungoides

2. Nitschke's ongoing killing of people was only stopped with the assistance of the Federal Government, assisted by some in labour who also opposed the killing of Australians by other Australians being legislated.

3. In 2010, the euthanasia debate threatened to reignite in the Northern Territory, when Julia Gillard, the then Prime Minister approved a conscious vote “restoring the authority of territories to legalise euthanasia”. The following extracts are form the Sydney Morning Herald dated 20 September 2010 by cited by Jewel Topsfield (Topsfield Article)in the article titled PM open to debate on legalising euthanasia

http://www.smh.com.au/national/pm-open-to-debate-on-legalising-euthanasia-20100919-15hyz.html

Fourteen years after the Northern Territory became the first place in the world to legalise euthanasia - only to be overridden nine months later by the Howard government - Greens leader Bob Brown pledged his first priority would be a bill to restore the territories' power to pass euthanasia laws.

''This won't bring in euthanasia, but it will restore the rights of the territorians to be able to legislate for euthanasia the same as everyone in the states,'' Senator Brown, a former GP, told Channel Ten.

4. The Topsfield Article shows that then, as now, the ALP and the Greens are putting together legislation to focus on killing.

ACT Chief Minister Jon Stanhope said he believed euthanasia laws would be passed if introduced to the ACT Parliament, where Labor rules in alliance with the Greens. ''I think … it is quite likely with such a large Green cohort with the balance of power now that it would possibly pass,'' Mr Stanhope said.

Christopher Pyne, the manager of Opposition Business in the House of Representatives, said Parliament would be a shambles with Senator Brown constantly raising Greens' policy such as euthanasia. ''Rather than focusing on the economy, rather than focusing on Australian standard of living, the Greens will ensure that in their alliance with the Labor Party we are pursuing rabbits down every hole,'' he told ABC TV.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 127

Annexure 28.: Victoria 1. In Victoria, the Parliament of Victoria, Legislative Council, Legal and Social Issues Committee (Committee) has omitted to consider certain issues. This Committee was constituted by the following individuals:

(a) In the Majority were (as you are aware, but I write this for people who are not in Victoria):

(i) Hon Edward O’Donohue MLC, Chair, Eastern Victoria;

(ii) Ms Nina Springle MLC, Deputy Chair, South-Eastern Metropolitan;

(iii) Ms Margaret Fitzherbert MLC, Southern Metropolitan;

(iv) Mr Cesar Melhem MLC, Western Metropolitan;

(v) Ms Fiona Patten MLC, Northern Metropolitan; and

(vi) Ms Jaclyn Symes MLC, Northern Victoria.

(b) Separate minority reports were prepared by each of the following Committee members (as you are aware, but I write this for people who are not in Victoria):

(i) Mr Daniel Mulino MLC, Eastern Victoria; and

(ii) Mrs Inga Peulich MLC, South-Eastern Metropolitan

The two minority reports opposed the introduction of euthanasia in Victoria.

2. In my respectful submission, the Final Report

(a) Makes numerous recommendations in relation to end of life care, including palliative care improvements and makes numerous recommendations;

(b) Includes Recommendation 49 (“Recommendation 49”), with is a recommendation to introduce euthanasia into Victoria;

Recommendation 49 states as follows:

“That the Victorian Government introduce a legal framework providing for assisted dying, by enacting legislation based on the assisted dying framework outlined in this Report in Annex 1, Assisted Dying Framework Summary.”

(i) Expressly disavowing any intention of evaluating the merits of euthanasia;

(ii) Not considering all available evidence – did not consider the issues in Belgium.

(iii) Not providing reasons for euthanasia;

(iv) Making bold findings providing reasons for its findings;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 128

(v) Relying on catch all phrases;

(vi) Not correctly defining the concepts it is investigating.

(vii) Not complying with administrative law requirements for making any decision;

(viii) Not comply with its own Terms of Reference;

(ix) Displays an attitude that the majority simply found in favour of their own preconceived intentions.

3. The above issues are shown in more significance when the legal principles are discussed.

4. In my view,

WHERE THE “FINAL REPORT” IS INVALID, RECOMMENDATION 49 IS INVALID AND ANY LEGISLATION BASED ON RECOMMENDATION 49 IS LIKEWISE INVALID.

This factual issues and legal principles of invalidity of Recommendation 49 are set out in further detail in the following annexures 2 through to 41 in these submissions.

EXAMINATION OF THE VICTORIAN HEALTH MINISTER’S ACTIONS AND INTENTIONS.

5. I have numerous objections to the role being played in this euthanasia legislation by the Victorian Health Minister, the Honourable Jill Hennessy MP. Namely the following:

(a) Did the Hon. Jill Hennessy MP act in a way that appears to have been taken contrary to law by:

(i) not correcting the majority of the Committee by asserting that the Majority Report is contrary to administrative law;

(ii) commending the Majority Report to the broader population of Victoria and Australia without advising that the Majority Report is contrary to administrative law;

(iii) her own breach of administrative law by asserting that the committee had complied with the Committee’s own Terms of Reference when they had not done by asserting that all countries had been considered; and/ or

(iv) failing to turn her own mind to evaluate the Majority Report and give reasons for supporting or opposing the Majority Report.

(b) Was the Hon. Jill Hennessy MP unreasonable unjust oppressive or improperly discriminatory for reasons stated in question (a) above.

(c) Was the action of the Hon. Jill Hennessy MP in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory for reasons stated in question 1 above.

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(d) Was action of the Hon. Jill Hennessy MP taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations by;

(i) did the Hon. Jill Hennessy MP accept the conclusions in the Majority Report without exercising her own discretion to make further criticisms only;

(ii) did the Hon. Jill Hennessy MP have an improper purpose in supporting the Majority Report to achieve the actualization of the legislative agenda of the Australian Labour Party;

(iii) did the Hon. Jill Hennessy MP take into account irrelevant considerations that the evidence was sufficient when personal testimony was relied upon and contrary evidence not so; or

(iv) considering purported community values which are ephemeral and intangible then the alleged community values are not:

(1) defined;

(2) evidenced; and/ or

(3) put to the community that community values are to be considered.

(e) Was the decision of action of the Hon. Jill Hennessy MP made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;

(f) I repeat the lack of reasons as errors of administrative law as set out in these Submissions.

(g) Was the action of the Hon. Jill Hennessy MP based wholly or partly on a mistake of law or fact by; or

(i) relying on errors of fact such as:

(1) not contemplating Belgium;

(2) not understanding the correct interpretation of the numbers of submissions for or against is not relevant;

(3) not considering actions of euthanasia resulting in deaths of non-terminal people;

(4) erroneously believing that legislative safeguards will be sufficient.

(5) erroneously accepting that there is a need for euthanasia; and/ or

(6) believing that there is community support for euthanasia when there is not.

(ii) making a decision based on the Majority Report which is unlawful for the following reasons:

(1) failing to comply with obligations to provide reasons;

(2) failing to comply with correct use of discretion; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 130

(3) all other reasons for objecting to administrative decision making set out in these Submissions.

(h) Was action of the Hon. Jill Hennessy MP to support the majority decision in the Final Report wrong because:

(i) I repeat my answer to the (g) question; and

(ii) the conclusion to make Recommendation 49 is not possible based on the errors of fact and law included in these Submissions.

HON. MR EDWARD O’DONOHUE MLC

6. I have numerous objections to the role being played in this euthanasia legislation by the Victorian Health Minister, the Honourable Mr Edward O’Donohue MLC. Namely the following:

(a) Did the Hon. Mr Edward O’Donohue MLC act in a way that appears to have been taken contrary to law by:

(i) failing to act without bias as required by administrative law including but not limited to the following:

(1). selecting predominantly supportive organisations to interview;

(2). selecting predominantly supportive oral testimony to be influenced by, rely on and repeat verbatim un the Final Report;

(3). selecting to not visit Belgium and investigate the reasons for certain individuals and organisations there for having reputations for mis-using euthanasia;

(4). avoiding defining definitions that may lock the Committee into a definition for which the self serving selection of evidence may not support.

(5). placing emphasis/ reliance on community values which are not evidenced or were advertised as being relevant; and

(6). all other administrative law objections set out in my 5 March Submissions.

(ii) failing to act without fettering his discretion as required by administrative law;

(iii) failing to give adequate reasons and sometimes providing no reasons as required by administrative law;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 131

(iv) failing to provide reasons for preferring evidence when contrary evidence has been tendered as required by administrative law;

(b) Was the Hon. Mr Edward O’Donohue MLC unreasonable unjust oppressive or improperly discriminatory by;

(i) drafting the Majority Report in the Final Report to be oppressive against those who disagree with euthanasia by:

(1) not giving equal space in the Majority Report to opposing arguments;

(2) giving larger graphics in diagrams to works and emotive sentences that support euthanasia;

(3) including emotive extracts from individual testimony that speak of suffering which support euthanasia;

(4) carrying implied threats/ accusations that anyone who does not permit/ agree with euthanasia is causing people’s suffering;

(5) carrying implied threats/ accusations that anyone who does not permit/ agree with euthanasia is out of step with Victorian values and therefore “out of date” (however described).

(ii) discriminating against those who oppose euthanasia by not giving voice to reasons for opposing euthanasia.

(iii) unreasonable because the whole scope of change is being made for very few people who may “benefit” by being allowed to end their lives, by the Majority Report’s own admission, as evidence that this perhaps more about politicians serving their own political careers.

(c) Was the action of the Hon. Mr Edward O’Donohue MLC in accordance with a rule of law or a provision of an enactment or practice that is or may be unreasonable unjust oppressive or improperly discriminatory by for the reasons set out in answer to question 2 above

(d) Was action of the Hon. Mr Edward O’Donohue MLC taken in the exercise of a power or discretion, and was so taken for an improper purpose or on irrelevant grounds, or on the taking into account of irrelevant considerations for the reasons set out in my response to question 1.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 132

(e) Was the decision or action of the Hon. Mr Edward O’Donohue MLC made in the exercise of a power or discretion and the reasons for the decision were not, but should have been, given;

(i) I repeat my submissions set out in my 5 March Submissions as to:

(1) the lack of reasons given including but not limited to meaningless bold assertions such as “robust” and “no evidence”; and

(2) the judicial judgements which set out what is meant by reasons.

(ii) I repeat my submissions set out in my 5 March Submissions as to bias included in the procurement and presentation of the “evidence” which emphasis on emotion

(f) Was the action of the Hon. Mr Edward O’Donohue MLC based wholly or partly on a mistake of law or fact; or

(i) the decision on how and from whom to procure the facts to be included in the Majority Report in the Final Report was wholly or partly a mistake:

(1) it was a mistake to select a majority of witnesses who are supporters of euthanasia;

(2) it was a mistake to not investigate Belgium as thoroughly or “robustly” as the Netherlands, Portland Oregon and Canada.

(ii) mutatis mutandis, with 6(a), where there is a legal requirement to so select the correct way to obtain evidence about facts, then, action is based on a mistake of what the law requires the Majority to have done – if it was an honest mistake. I believe that this was a deliberate ploy to sell an opinion.

(iii) the decision on how to present the alleged facts was based on a mistake of fact because:

(1) it is not correct to say that there is “no evidence”;

(2) it is not correct to say that the legislative protections against abuse are “robust”;

(3) it is mistake of fact to based conclusions and make recommendations on incomplete evidence. This complaint is not an investigation or enquiry of the merit of the outcome, but merely an investigation or enquiry as to the process of reaching a conclusion.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 133

(iv) mutatis mutandis, with 6(c), where there is a legal requirement to so present the information in a way that is not a breach of any administrative law, then, action is based on a mistake of what the law requires the Majority to have done in presenting their information – if it was an honest mistake. I believe that this was a deliberate ploy to sell an opinion.

(g) Was action of the Hon. Mr Edward O’Donohue MLC wrong because the conclusion to make Recommendation 49 is not possible based on the errors of fact and law included in these Submissions.

THE OTHER MEMBERS OF THE COMMITTEE

7. I have the same objections to the other members of the committee that I have to Honourable Mr Edward O’Donohue MLC.

8. How could the members of the majority of the committee have not considered the evidence which I now present as included in the affidavit of Professor Montero.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 134

Annexure 29.: South Australia 2016 SA EUTHANASIA BILL

1. In 2016, The Honorable Member Step Key, insert party, introduced a bill to legalise euthanasia in South Australia (“2016 SA Euthanasia Bill”).

2. The 2016 SA Euthanasia Bill was the fourteenth (14th) attempt to bring such legislation into South Australia.

3. On or about 17 November 2016, the 2016 SA Euthanasia Bill was debated in the Parliament of South Australia. The 2016 SA Euthanasia Bill was defeated by one (1) vote.

4. As far as I have been able to assertion, the most recent vote in South Australia is as follows:

Position Labor Liberal Independent In favour Jay Weatherill Steven Marshall Geoff Brock In favour Leon Bignell Vickie Chapman In favour Paul Caica Duncan McFetridge In favour Susan Close David Pisoni In favour Nat Cook Isobel Redmond In favour Annabel Digance Rachel Sanderson In favour Jon Gee Corey Wingard In favour Katrine Hildyard In favour Eddie Hughes In favour Steph Key In favour Stephen Mullighan In favour Lee Odenwalder In favour Chris Picton In favour Dana Wortley In favour Frances Bedford Against Michael Atkinson Troy Bell Martin Hamilton-Smith (Speaker - casting vote) Against Zoe Bettison Sam Duluk Against Tom Kenyon John Gardner Against Tom Koutsantonis Mark Goldsworthy Against Tony Piccolo Steven Griffiths Against Jennifer Rankine Stephan Knoll Against John Rau Adrian Pederick Against Jack Snelling Michael Pengilly

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 135

Position Labor Liberal Independent Against Leesa Vlahos David Speirs Against Vincent Tarzia Against Peter Treloar Against Dan van Holst Pellekaan Against Tim Whetstone Against Mitch Williams

Chronology of Attempts to Legalise Euthanasia in South Australia

5. The history of the previous attempts (as far as I have been able to work it out is as follows):

No Year Title Proposer Proposer’s Result Party 1 John Quirke Labor Rejected 13-31. 1995 Voluntary Euthanasia Bill

2 Hon. Anne Levy Labor 1996 Voluntary Euthanasia Bill Social Development Committee

1996 (which had been) which finally in 1999 tabled its (Drafted by presented by in the Legislative recommendation that active SAVES) Council; voluntary euthanasia and physician-assisted suicide remain criminal offences.

3 Hon Sandra Australian March 2001 committee stage ten 2000 The Dignity in Dying Bill Kanck Democrats votes to nine, but was then and And the harmful ‘Objects of the Act’ Hon Dr Bob Such Independent voted against by 12 votes to 9. 4 Dignity in Dying Bill 2002 Hon Sandra Australian committee stage but the Bill was 2002 Kanck Democrats then ‘railroaded’ and defeated by 8 votes to 13 in 2004. 5 Dignity in Dying Bill 2002 Dr Bob Such Independent withdrawn in 2005 due to the 2003 pending election 6 Voluntary Euthanasia Bill Bob Such Independent Defeated 2006 2006 7 Hon Bob Such Independent Parliament prorogued 2007 Voluntary Euthanasia Bill 2007

8 Bob Such Independent 2008 Voluntary Euthanasia Bill Parliament prorogued Medical

2008 Treatment and Palliative Care Mark Parnell Australian (Voluntary Euthanasia) Greens Amendment Bill 2008

9 Independent Defeated 2010 Voluntary Euthanasia Bill Hon Bob Such. 2010

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 136

No Year Title Proposer Proposer’s Result Party 10 Hon Steph Key Labor The Bill lapsed in the House of 2010 Medical Treatment and Assembly Palliative Care (End of Life Hon Mark Parnell Arrangements) Amendment Bill Australian 2010 Greens 11 Labor Defeated 2011 Criminal Law Consolidation Hon Steph Key. (Medical Defences-End of Life Arrangements) Amendment Bill 2011

12 Hon Dr Bob Such Independent Failed to pass into the Second 2012 Voluntary Euthanasia Bill Reading June 14th 22 votes to 2012 20 13 Hon Dr Bob Such Independent Defeated 2013 Ending Life with Dignity Bill 2013

14 2016 Steph Key Labour Defeated Death with Dignity Bill 2016

SANDRA KANCK

6. A key proponent of euthanasia in South Australia was Sandra Kanck and she became a Committee Member of the SA Branch of Sustainable Population Australia.

7. The presumption is that Sandra Kanck sees euthanasia as a means of having a sustainable population. Get rid of the sick and the old, as keeping them is not sustainable.

MARK PARNELL AND THE SAVES

8. It is clear to me that there is a political interest held by Mr Mark Parnell who has actively assisted the organisation known as “South Australian Voluntary Euthanasia Society”. He has assisted, they say, in the creation of their “FACTSHEET 10: The Facts about Voluntary Euthanasia: Dispelling Myths”. They say on the bottom of the last page:

“Compiled by the South Australian Voluntary Euthanasia Society – assistance from the office of Hon Mark Parnell is acknowledged. “

As seen in the above table, Mark Parnell introduced earlier versions of the euthanasia bills. He is effectively trying to convince politicians and the population of the merits of the lethal legislation he has been introducing.

9. More will be said about the factual inaccuracy of tis factsheet. Including the numbers of people who are allegedly needing this euthanasia done to them.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 137

Annexure 30.: Tasmania 1. There has been three attempts to have euthanasia legalized in the State of Tasmania.

2009 ATTEMPT

2. In 2009, an attempt was made. This was unsuccessful.

3. I am indebted in this letter to the opinions of “eminent Tasmanians” who through the organisation RealDignityTas (which I suspect is a play on the word Dignitas and is the foil to Dignitas in Switzerland) for saying with authority, what I as a nobody, would like to say and giving a formation to my opinions that I could not say without their skills, training and vast experience. This organisation strongly opposed the 2009 attempt to legalise euthanasia, including Physician Assisted Dying.

2013 ATTEMPT

4. On or about 17 October 2013, Tasmania's lower house has rejected voluntary euthanasia by the narrowest of margins. This private members bill, co-sponsored by Labor Premier Lara Giddings and Greens leader Nick McKim, was defeated 13-11. The Speaker Mr Michael Polley for all intents and purposes used his casting vote against it. The Greens deputy speaker Mr Tim Morris, who supported the bill, was acting as the Speaker and therefore not able to cast a vote, The bill was defeated by two votes.

2017 ATTEMPT

5. On or about 24 May 2017, the Tasmanian parliament again voted against euthanasia. The bill was co-authored by Greens party leader Cassy O'Connor used a lot of emotion to address Parliament as follows:

'I was blessed to have been able to look in my dad's eyes before he died and tell him how much I loved him and to thank him for all he gave,' Ms O'Connor said.

6. I agree with Health Minister Michael Ferguson Is reported to have said:

“It would leave vulnerable people exposed to exploitation and remove protections safeguarding the sanctity of life.”

'This is in fact a dangerous bill that will in fact create a different group of cruel tragedies,'.

'We've said every suicide is too many yet before us is a bill that would sanction suicide.

'What about the young ones who are going through intolerable pain? Would anyone of us encourage that person to take that horrible step?'

7. Labor MP David Llewellyn voiced his opposition to the bill, while deputy premier Jeremy Rockliff said he would not support it.

Source See skynews at the following link http://www.skynews.com.au/news/politics/state/2017/05/24/tasmania-s- parliament-to-debate-euthanasia.html

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 138

Annexure 31.: New South Wales 2013 ATTEMPT

1. On or about 23 May 2013, the NSW Parliament defeated the Rights of the Terminally Ill Bill 2013, sponsored by Greens member Cate Faehrmann MLC was defeated in the NSW upper house by 23 to 12 votes. In a prediction of the future, Ms Faehrmann was reported as saying she,

“expects an identical bill to be introduced into the NSW lower house some time soon.”

Source Newsweekly.com.au article titled “Euthanasia: NSW parliament rejects euthanasia bill” by Mr Paul Russell, dated June 8, 2013 (http://newsweekly.com.au/article.php?id=5603).

2. David Clarke MLC, quoted numerous studies referred to by Canadian author Alex Schadenberg, chairman of the Euthanasia Prevention Coalition (EPC) International, in his book, Exposing Vulnerable People to Euthanasia & Assisted Suicide (reviewed in News Weekly, April 13, 2013).

“A number of NSW politicians referred to a recent report, produced by the think-tank Australia 21, which recommended changes to the current law. Some of them quoted a Royal Society of Canada report, which also favoured euthanasia. Both reports in various ways wrongly claimed that the euthanasia laws in the Netherlands and Belgium operated satisfactorily and without risk.”

“The truth is that the euthanasia laws of the Netherlands and Belgium contain a whole string of safeguards which, it was promised, would ensure against abuse of their new euthanasia laws, but this is not what has happened in practice.”

Source Newsweekly.com.au article titled “Euthanasia: NSW parliament rejects euthanasia bill” by Mr Paul Russell, dated June 8, 2013 (http://newsweekly.com.au/article.php?id=5603).

2017 ATTEMPT

3. In New South Wales in 2017, Go Gentle Australia is trying to have Parliament not consider:

(a) morality;

(b) ethics; and with them

This pressure is coming from Ms Shayne Higson, a candidate for Dr Philip Nitschke “Voluntary Euthanasia Party in the 2013 Victorian State election who says the only issue of relevance is “health” saying Parliament in New South wales must support euthanasia on the basis of it allegedly being a “serious public health issue”.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 139

Go Gentle spokeswoman Shayne Higson said the group was glad to hear Mr Ajaka has an open mind but that politicians need to move on euthanasia policy.

"This is a serious public health issue and it is no longer acceptable to oppose these laws on moral or ethical grounds," Ms Higson said on Monday.

"All members of parliament should be willing to approach the upcoming debate on assisted dying legislation with an open mind and be prepared to consider all the evidence."

Per Rebecca Chirichiello Australian Associated Press in her article Euthanasia advocate rejects moral argument January 16, 2017 6:26pm http://www.news.com.au/national/breaking-news/nsw-minister-not-convinced-on-euthanasia/news- story/79ee327cd3d862c880c07f2b12101ae3

(Emphasis Mine)

4. In answer to Shayne Higson I say as follows:

(a) health is but one issue;

(b) the adverse affect to “health” has not been defined by her;

(d) she appears not to want to argue other issues as a gagging of debate;

(e) she has not shown how many people will suffer from this health problem;

(f) she has excluded “choice” as an ethic, and is therefore at odds with the Victorian Inquiry majority report;

(h) she has opened to door ignoring ethical considerations of killing the disabled, mentally ill by closing the door on ethics; and

(i) for reasons (a) through to (h) I form the view that Shayne Higson’s position is:

(i) simply simplistic; and

(ii) simply systemic of the poorly reasoned position taken by the supporters of euthanasia.

5. On or about 21 September 2017, legislation was introduced into the NSW Parliament.

6. The annexure regarding the use and abuse of the Supreme Court was written in response to my brief review of that legislation.

7. I understand that in New South Wales, like California USA beforehand, and also in Victoria, Australia, the Oregon model is highly praised as being safe. This letter/ report has been written with an emphasis on Oregon with a deliberate view of bursting that bubble.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 140

Annexure 32.: Federal Jurisdiction OVERRIDING THE TERRITORIES

1. At a federal level, there is concern that the Rights of the Terminally Ill Act 1995 (NT) with overturned the euthanasia laws that operated for a short time in the Northern Territory. Liberal Democrat Senator Mr. David Leyonhjelm has this as an ambition.

EXPRESS INTENTIONS OF GO GENTLE AUSTRALIA

2. It is also likely, and it is Go Gentle Australia’s express ambition, to target Senator Pauline Hansen’s One Nation party for support for euthanasia. The website of Go Gentle Australia under the heading “Developments from around Australia” dated 6 March 2017, they wrote as follows:

“The growing support for Pauline Hanson’s One Nation party may have an impact on the campaign for VAD in Queensland because One Nation has a policy supporting VAD. It is possible they will win 11 seats in the state election.

LNP MP, Steve Dickson has moved over to One Nation and is now their Queensland leader. He previously opposed VAD, however, he may now be forced to change that position.”

ANDREW LEIGH MP’S SPEECH TO FEDERAL PARLIAMENT

3. At this point, I am reminded of the speech given by the ALP’s Mr Andrew Leigh MP gave a speech titled “Voluntary Euthanasia” in the House of Representatives on 17 August 2015 which commenced as follows:

“Jay Franklin lives in constant pain and has all his life. He has a congenital bowel disease known as Hirschsprung disease. As a result, his pelvic cavity is riddled with infection, even after more than 100 operations. In 2013, the Victorian man announced his plans to buy a one-way ticket to Switzerland where he was to receive life-ending medication. However, because of the severity of his condition doctors were unsure if his digestive system would be able to absorb the drugs that were intended to end his life. They were concerned the drugs might, instead, leave him in a vegetative state. Jay decided not to board the plane to Switzerland. Instead, he became a passionate advocate for voluntary euthanasia in Australia, running as a Victorian state candidate for the Voluntary Euthanasia Party in 2014.”

4. In my respectful submission, Mr Leigh MP, who I am sure is an earnest and honest politician and a worthwhile person generally these attributes I do not question, has made the following errors:

(a) Arguing from the single issue of a person’s immediate suffering;

(b) Not realising that this may Mr Jay Franklin has sought euthanasia when he is ostensibly not terminal:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 141

(d) He had enough energy to run for parliament;

(e) He was sick and tired of having so many operations, already having had 100 of them in is life to date;

(f) That he could only see a life of pain ahead; and

(g) If he had the medication, the death would have been peaceful.

5. I suspect also that the Swiss did not want the death of a foreigner who was not stated as being terminal on their books.

MARSHALL PERRON’S ABUSE OF MR KEVIN ANDREWS

6. I am highly concerned about the abuse and intimidation, which is so often metered out in misplacing blame for pain at a personal level, perpetrated by people who support euthanasia against and towards those who do not support euthanasia. I see that the apex of this is in the letter from the Honourable Mr Marshall Perron towards the Honourable Mr Kevin Andrews. This stated as follows:

Hon Kevin Andrews MP

Parliament House

CANBERRA ACT

2600

Dear Kevin

I write now that the dust has settled and you have time on your hands, warming a seat on the backbench. By now you will realise that your long political career is over, and it is time to reflect on what you have achieved on behalf of your constituents and the taxpayers. Perhaps you will even write your memoirs, which seems to be a popular pastime these days.

No doubt you would consider one of your crowning achievements to be the passage of the Euthanasia Laws Act 1997. It was a momentous event, of enormous significance immediately to a few people at the time, and affecting many more lives during the subsequent years. The impact of course, is ongoing, as evidenced by the elderly suicide statistics.

One of those affected was 83 year old Darwin man John Baylis. While you are unlikely to have heard his name, he certainly knew yours. In fact he died uttering it.

John was diagnosed with motor neuron disease. He was comforted by a large extended family and many lifelong friends. He took advantage of palliative care services in his home however, as you may know, there is no cure or relief from the dreadful symptoms of this cruel disease while it slowly kills its victims.

Despite his age, John was an enthusiastic user of Facebook to keep up to date and share stories of a long and interesting life. As the disease crippled his body but not his mind, his posts on Facebook became more frequent and he documented the last three months of his life in candid detail.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 142

His diary is a harrowing true record of what life is like when one is dying of MND. I attach a copy in the event you are prepared to read it.

You will be aware that over the last two decades, eight western democratic jurisdictions have made medical assistance to die lawful in limited circumstances. Canada will join the list shortly. Others will follow. The predicted doomsday scenarios have failed to materialise.

Voluntary euthanasia will eventually be decriminalised in Australia. The compassionate case for, the success of regimes elsewhere and our rapidly aging population, will demand it. When that happens you will have the dubious satisfaction of knowing you delayed it. Tragically many will die badly in the meantime, either by their own hand or, like John Baylis, realising too late the misery that was in store for them and having missed the opportunity to die by their own hand while they had the physical capacity. Their deaths will be a nightmare for them and their loved ones.

Most politicians genuinely aspire to ‘make a difference’ during their term of office; to achieve things that have a lasting material effect on the lives of others; tales they can tell the grandkids if they show any interest, or perhaps include in one’s memoirs.

Kevin, with the passage of the Euthanasia Laws Act you certainly did ‘make a difference’, one that impacted on the lives of many. Sadly the impact was a negative one. John Baylis was a perfect example of this, yet I suspect you are unlikely to pass that one on to your grandchildren. In the 18 years since your success there have been hundreds of unnecessarily traumatic deaths, and they continue while you bask in the afterglow of high office.

If you do read how John Baylis died, you will pray that whatever is the cause of your own inevitable demise, it is not the same as he endured thanks to you.

Sincerely

Marshall Perron

13 Mayfair Lane

BUDERIM QLD 4556

7. What is most concerning, is that pro-euthanasia organizations celebrate this type of intimidation and reproduce the letter on their websites and acclaim it as being a wonderful piece of lobbying and responding to their perceived enemy. See the link to where the above letter is located https://www.rationalist.com.au/damn-you-to- hell-kevin-andrews/

“Damn you to hell, Kevin Andrews” Posted by Meredith Doig On 17 November, 2015 30 March, 2017 John Baylis of Darwin suffered from motor neuron disease, a progressive condition involving degeneration and wasting of the muscles. He died of it on 5 March 2015. Marshall Perron was the Chief Minister of the Northern Territory government which introduced the Rights of the Terminally Ill Act 1995. Kevin Andrews was the Minister responsible for overturning this Act in 1997. We reproduce below a letter from Marshall Peron to Kevin Andrews about John Baylis's death and the diary he kept in his dying days.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 143

Annexure 33.: Current Status Internationally IDENTIFICATION OF JURISDICTIONS

1. The pro-euthanasia jurisdictions are as follows: Belgium, Holland, Luxemburg, Switzerland, Canada, Columbia, and the following states in the United States of America.

(a) The State of Oregon;

(b) The State of Washington;

(d) The State of Vermont.

There is a bad decision in New Mexico, which is relevant to that one county, and there are numerous attempts in other states, examining each of these would be time consuming to give them the full criticism, nonetheless, my response to those is the same as other jurisdictions in the USA and elsewhere – do not do any form of euthanasia for the reasons set out in this letter/ report.

2. The Victorian Committee did not go to Belgium or call for and against witnesses from Belgium.

COMMON CONTENTIOUS ISSUES REGARDING DATA FROM OVERSEAS

3. There is much debate in relation to these jurisdictions as to:

(a) The numbers of people who are dying through euthanasia;

(b) The number of babies being killed by doctors who decide the child must die;

(d) If the numbers are being reported accurately to official recording authorities as required;

(e) If these deaths constitute a “slippery slope” or not;

(f) If changes to laws in these countries a “slippery slope” or not;

(g) If the examples overseas are able to be used as concern for Australia; and

(h) If the reports that have been created in Australia have properly considered the evidence and history from overseas.

On all the issues in this paragraph, I consider each issue correctly understood/ answered in the negative.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 144

TO KILL OR NOT TO KILL BABIES, IS IT REALLY HAPPENING? THAT IS THE QUESTION

4. By far the most emotive argument is the killing of babies in the Netherlands per the Groningen Protocol. The evidence and my conclusion on this issue is dealt with in Annexure 16.

5. My ultimate answer, with reasons set out in Annexure 38, is quite simply that Mr Denton cannot prove that it is not happening, and even if it is not, the reality is that euthanasia supporters including doctors want the power and free reign to do this. This is not denied by Mr Denton and is a core principle of those who desire to introduce euthanasia.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 145

Annexure 34.: Chronology and Statistics Internationally 1. These submissions are prepared with the following chronology as to the history of euthanasia in Australia and worldwide in mind. Naturally, many more content could be included in this chronology.

Item Date Local Description of Event 1 1942 SUI Dignitas opens – commences killing people during middle of WW2 2 1973 UK Dr Woolnough writes treatise titled “Euthanasia (Compassionate Death)” advocating the killing of babies by doctors. Prepared by a Sub-committee of the N.S.W. Humanist Society and adopted, February 1973 3 1981 NED Rotterdam court in 1981 established the following guidelines: 1. The patient must be experiencing unbearable pain. 2. The patient must be conscious. 3. The death request must be voluntary. 4. The patient must have been given alternatives to euthanasia and time to consider these alternatives. 5. There must be no other reasonable solutions to the problem. 6. The patient’s death cannot inflict unnecessary suffering on others. 7. There must be more than one person involved in the euthanasia decision. 8. Only a doctor can euthanize a patient. 9. Great care must be taken in actually making the death decision. (1) Carlos Gomez, Regulating Death (New York: Free Press, 1991), p.32. Hereafter cited as Regulating Death. Cited by the Paitents Rights Council at http://www.patientsrightscouncil.org/site/holland-background/ 4 1986 NED “Since 1981, these guidelines have been interpreted by the Dutch courts and Royal Dutch Medical Association (KNMG) in ever-broadening terms. One example is the interpretation of the “unbearable pain” requirement reflected in the Hague Court of Appeal’s 1986 decision. The court ruled that the pain guideline was not limited to physical pain, and that “psychic suffering” or “the potential disfigurement of personality” could also be grounds for euthanasia. (2)”

Carlos Gomez, Regulating Death (New York: Free Press, 1991), p.32. Hereafter cited as Regulating Death. Cited by the Paitents Rights Council at http://www.patientsrightscouncil.org/site/holland-background/ 5 December 1990 NED Institute for Bioethics conference in Maastricht, Holland hears that physician from The Netherlands Cancer Institute inform the conference of approximately 30 cases a year where doctors ended patients’ lives after the patients intentionally had been put into a coma by means of a morphine injection. The Cancer Institute physician then stated that these deaths were not considered “euthanasia” because they were not voluntary, and that to have discussed the plan to end these patients’ lives with the patients would have been “rude” since they all knew they had incurable conditions. (5)

5. Alexander Morgan Capron, “Euthanasia in the Netherlands–American Observations,” Hastings Center Report (March, April 1992), p. 31. Cited by the Paitents Rights Council at http://www.patientsrightscouncil.org/site/holland- background/ 6 1990 NED 2,300 people died as the result of doctors killing them upon request (active, voluntary euthanasia).(7) – Source, Patients Right’s Council citing the The Remmelink Report 7 1990 NED 400 people died as a result of doctors providing them with the means to kill themselves (physician-assisted suicide).(8) Source, Patients Right’s Council citing the The Remmelink Report

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Item Date Local Description of Event 8 1990 NED 1,040 people (an average of 3 per day) died from involuntary euthanasia, meaning that doctors actively killed these patients without the patients’ knowledge or consent.(9) 14% of these patients were fully competent. (10) 72% had never given any indication that they would want their lives terminated. In 8% of the cases, doctors performed involuntary euthanasia despite the fact that they believed alternative options were still possible. (12) Source, Patients Right’s Council citing the The Remmelink Report 9 1990 NED The most frequently cited reasons given for ending the lives of patients without their knowledge or consent were: “low quality of life,” “no prospect for improvement,” and “the family couldn’t take it anymore.”(17) Source, Patients Right’s Council citing the The Remmelink Report 10 July 1992 NED In July 1992, the Dutch Pediatric Association announced that it was issuing formal guidelines for killing severely handicapped newborns. Dr. Zier Versluys, chairman of the association’s Working Group on Neonatal Ethics, said that “Both for the parents and the children, an early death is better than life.” Dr. Versluys also indicated that euthanasia is an integral part of good medical practice in relation to newborn babies. (23) Doctors would judge if a baby’s “quality of life” is such that the baby should be killed Source, Patients Right’s Council 11 10 Sept 1991 NED The Remmelink Report is released on September 10, 1991 12 1994 PDX Oregon passes on bare majority 51% vote on euthanasia. 49% opposed. 13 1994 UK Select Committee on Medical Ethics. Report. London:HMSO, 1994. (House of Lords paper 21-I) rejects calls for euthanasia. Source, https://righttolife.com.au/life-issues/euthanasia 14 1995 NT The Rights of the Terminally Ill Act 1995 (NT) Is passed. Four people die under this legislation. World’s first. 15 1997 PDX Oregon has injunction as to the election euthanasia lifted. 16 1997 PDX Oregon enacted the Death with Dignity Act 1997 (OR) 17 1997 Cth The Australian Federal Euthanasia Laws Act 1997 (Cth) voids the Rights of the Terminally Ill Act 1995 (NT) using Commonwealth’s territorial power under the Federal constitution Leading belligerents For: Marshall Perron, Northern Territory Chief Minister Against: Mr Kevin Andrews (Lib) & Mr Tony Buike (ALP). 18 20 December Bel A private members bill on euthanasia was put before the Senate in Belgium. 1999 19 May 2002 Bel Belgium Senate Passes Euthanasia Bill – with the same promises of safe guards that are being made here in Australia. 20 September 2004 NED A.A.E. Verhagen publishes the Groningen Protocol, term derived from the location of the University Medical Center Groningen. This is little more than infanticide as determined by doctors if the child should die or live. 21 10 March 2005 NED The Groningen Protocol is reported upon. A.A.E. Verhagen and P.J. Sauer, 2005, “The Groningen Protocol – Euthanasia in severely ill new‐borns”, The New England Journal of Medicine, vol. 352, March 10, No 10, p 959 – 962. Several neonatologists have drawn up a procedure which enables euthanasia of premature new‐born infants or those presenting a handicap in one of the three following instances: either the infant has no chance of survival, or it is deemed to only have a very mediocre quality of life, or the outlook is poor and it is felt that the infant will suffer unbearable pain.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 147

Item Date Local Description of Event The Groningen Protocol caused quite a stir in Belgium and a great many medical practitioners are of the opinion that since a “therapeutic” abortion is possible right up to the day before birth in the event of the child being handicapped, euthanasia of new‐borns ought also to be allowed under the same conditions. (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on). 22 2006 Bel Belgium: the Commission that regulates euthanasia interprets the law for medial practitioners. “As early as 2006, the Commission included a “brochure for the medical profession” which explains the new interpretations to be given to the legal conditions. The Commission, in effect, interprets the law very freely, even going so far as to void any control it is supposed to carry out with regard to some of the legal conditions” (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on). 23 18 March , LUX Luxembourg enacts euthanasia laws. The Grand Duke has his veto power revoked 2009 by parliament for advising he will not sign the legislation into law. See graphic below 24 16 August 2010 Bel Private Members bill 5‐21/1 came before the Senate on August 16, 2010 19. It envisages providing the possibility of requesting euthanasia for all minors, regardless of age, on condition that he/she is deemed to be of sound mind and capable of reason. Before the age of 16 years, the decision has to be made with parental approval (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on).. 25 23 September Bel Private members bill 5‐7‐179/1 came before the Senate on September 23, 2010 20. 2010 It aims to make euthanasia available to minors aged 15 years and who are expected to die very shortly, on condition that they are conscious and are capable of reason. Their parents would have to be informed but would not be able to be involved in any decision regarding euthanasia (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on).. 26 28 October Bel Private members bill 53 0496/001 was submitted to the Chamber of Representatives 2010 on October 28, 2010 21. It aims to offer the possibility of euthanasia to minors, regardless of age. If the child is “capable of reason”, it would be able to formulate the request itself; if this is not the case, its parents would be allowed to do so on its behalf. (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on). 27 28 October Bel Among other things, the private members bill 53 0498/00116 submitted to the 2010 Chamber of Representatives on October 28, 2010 aims to offer the possibility of euthanasia to patients who are incapacitated and suffering from dementia. (Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on). 2015 28 7 May 2015 Vic On 7 May 2015 the Legislative Council agreed to the following motion: That pursuant to Sessional Order 6 this House requires the Legal and Social Issues Committee to inquire into, consider and report, no later than 31 May 2016, on the need for laws in Victoria to allow citizens to make informed decisions regarding their own end of life choices and, in particular, the Committee should — (1) assess the practices currently being utilised within the medical community to assist a person to exercise their preferences for the way they want to manage their end of life, including the role of palliative care;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 148

Item Date Local Description of Event (2) review the current framework of legislation, proposed legislation and other relevant reports and materials in other Australian states and territories and overseas jurisdictions; and (3) consider what type of legislative change may be required, including an examination of any federal laws that may impact such legislation. 29 10 June 2015 Vic Victorian Committee 10 June 2015, Briefing Melbourne 30 23 June 2015 Vic Victorian Committee 23 June 2015, Briefing Melbourne 31 24 June 2015 Vic Victorian Committee 24 June 2015, Briefing Melbourne 32 16 March 2016 Vic Victorian Committee 16 March 2016, Briefing Melbourne 33 29 July 2015 Vic Victorian Committee 29 July 2015, Site Visit Barwon Health, Geelong 34 30 July 2015 Vic Victorian Committee 30 July 2015, Site Visit Warrnambool and District Community Hospice, Warrnambool 35 26 August 2015 Vic Victorian Committee 26 August 2015, Site Visit Austin Hospital, Melbourne 36 31 August 2015 Vic Neil Francis of Dying For Choice submits his written submissions to the Victorian Inquiry. 37 21 October Vic Neil Francis of Dying For Choice appears before the Victorian Inquiry. 2015 38 9 November NSW ABC TV: Q and A. Mr Luke Formosa challenges Mr Denton on television show 2015 called Q and A asserting that there is 550 babies killed in the Netherlands in 2014. Mr Denton rejects the claim. Mr Denton further says the following: “What it was...it was standard palliative care practice. What in fact happened with these so-called murders, because death is a very complicated thing and there are many grey areas, what they discovered because the Dutch, unlike our country, have an incredible X-ray over end-of-life practices, they know what’s happened, who has done it, how it’s happened. “We don’t have that here. The patients who had been murdered, in fact, they were euthanised without their consent. Why? Because they were in the last 24 or 48 hours of their life, they were in a coma, most had had a previous conversation with their physician about euthanasia. 2016 39 21 March 2016 Vic Victorian Committee 21 March 2016, Meetings Melbourne (via video conference) 40 29 March 2016 Vic Victorian Committee 29 March 2016, Meetings Amsterdam, Netherlands 41 30 March 2016 Vic Victorian Committee 30 March 2016, Meetings Amsterdam, Netherlands 42 31 March 2016 Vic Victorian Committee 31 March 2016, Meetings Amsterdam, Netherlands 43 1 April 2016 Vic Victorian Committee 1 April 2016, Meetings Amsterdam, Netherlands 44 2 April 2016 Vic Victorian Committee 2 April 2016, Meetings Zurich, Switzerland 45 4 April 2016 Vic Victorian Committee 4 April 2016, Meetings Montreal, Canada 46 4 April 2016 Vic Victorian Committee 4 April 2016, Meetings Ottawa, Canada 47 5 April 2016 Vic Victorian Committee 5 April 2016, Meetings Ottawa, Canada 48 5 April 2016 Vic Victorian Committee 5 April 2016, Meetings Portland, Oregon 49 7 April 2016 Vic Victorian Committee 7 April 2016, Meetings Portland, Oregon 50 8 April 2016 Vic Victorian Committee 8 April 2016, Meetings Portland, Oregon 51 13 April 2016 Vic Victorian Committee 13 April 2016, Melbourne (via video conference) Ms Carine Brochier, Project Manager. European Institute for Bioethics (Brussels, Belgium)

Clearly, this was a face saving exercise to ensure that some contact with someone in Belgium was had to “tick the box” to say that Belgium was considered. Which it was not.

Ms Carine Brochier, is the person who emailed, upon my request, the affidavit of Professor Montero.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 149

Item Date Local Description of Event 52 June 2016 Can Canada makes euthanasia legal 53 June 2016 Vic The Committee’s Final Report released Parliament of Victoria Legal and Social Issues Committee Ordered to be published VICTORIAN GOVERNMENT PRINTER June 2016 PP No 174, Session 2014-16 (Document 1 of 2) ISBN 978 1 925458 38 1 (print version) 978 1 925458 39 8 (PDF version) 54 June 2016 Vic The Committee’s Final Report Summary Booklet released Parliament of Victoria Legal and Social Issues Committee Ordered to be published Victorian Government Printer June 2016 PP No 174, Session 2014-16 (Document 2 of 2) ISBN 978 1 925458 40 4 (print version) 978 1 925458 41 1 (PDF version) 55 June 2016 Vic The Parliament of Victoria, Health Minister’s Ministerial Advisory Panel’s (“MAP”) “Voluntary Assisted Dying Bill - Discussion Paper” (“Discussion Paper”) is released Authorised and published by the Victorian Government, 1 Treasury Place, Melbourne. © State of Victoria, Department of Health and Human Services, January 2017. ISBN 978-0-7311-7139-2 (print) ISBN 978-0-7311-7140-8 (online) Available at

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 150

His Royal Highness The Grand Duke of Luxembourg (center) makes a comment to his wife and son: “Guess what happened to me today! The Luxembourg Parliament administered involuntarily euthanasia to my power to veto new legislation because I would not sign their new euthanasia legislation into the law of Luxembourg for out of my concern for the improper use of power against people, and for ethical and moral reasons“

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 151

International Statistics

2. I provide the following chronology of deaths by euthanasia to show the trend that euthanasia is responsible for a growing number of deaths internationally with an increasing annual lamination. I further say that there is no conceivable reason why the same phenomena will not be what happens in Australia.

ITEM YEAR DESCRIPTION REFERENCE 1 c.1995 In 1994 4 deaths in Northern Territory, Australia Various 2 1995 Oregon law not in force due to injunction. 3 1996 Oregon law not in force due to injunction. 4 1997 Oregon law came into force. 5 1998 In 1998 16 deaths in the State of Oregon, USA. Oregon 2015 Data Summary 6 1998 In 1998 43 deaths of Swiss people at Dignitas, Daily Mail Reporter 2013 Switzerland, not including non-Swiss people 7 1999 In 1999 27 deaths in State of Oregon, USA Oregon 2015 Data Summary 8 2000 In 2000 27 deaths in State of Oregon, USA Oregon 2015 Data Summary 9 2001 In 2001 21 deaths in State of Oregon, USA Oregon 2015 Data Summary 10 2002 In 2002 38 deaths in State of Oregon, USA Oregon 2015 Data Summary 11 2003 In 2003 235 deaths – Belgium Fifth Belgium FCCA Report 12 2003 In 2003 22 deaths in State of Oregon, USA Oregon 2015 Data Summary 13 2004 In 2004 349 deaths– Belgium Fifth Belgium FCCA Report 14 2004 In 2004 37 deaths in State of Oregon, USA Oregon 2015 Data Summary 15 2005 In 2005 393 deaths – Belgium Fifth Belgium FCCA Report 16 2005 In 2005 38 deaths in State of Oregon, USA Oregon 2015 Data Summary 17 2006 In 2006 429 deaths– Belgium Fifth Belgium FCCA Report 18 2006 In 2006 46 deaths in State of Oregon, USA Oregon 2015 Data Summary 19 2007 In 2007 495 deaths– Belgium Fifth Belgium FCCA Report 20 2007 In 2007 49 deaths in State of Oregon, USA Oregon 2015 Data Summary 21 2008 In 2008 704 deaths– Belgium Fifth Belgium FCCA Report 22 2008 In 2008 2331 deaths– Holland www.noeuthanasia.org.au 23 2008 In 2008 60 deaths in State of Oregon, USA Oregon 2015 Data Summary 24 2009 In 2009 822 deaths– Belgium Fifth Belgium FCCA Report 25 2009 In 2009 2636 deaths– Holland www.noeuthanasia.org.au 26 2009 In 2009 297 deaths of Swiss people at Dignitas, Daily Mail Reporter 2013 Switzerland, not including non-Swiss people 27 2009 In 2009 59 deaths in State of Oregon, USA Oregon 2015 Data Summary 28 2010 In 2010 953 deaths– Belgium Fifth Belgium FCCA Report 29 2010 In 2010 65 deaths in State of Oregon, USA Oregon 2015 Data Summary 30 2010 In 2010 3136 deaths– Holland www.noeuthanasia.org.au 31 2011 In 2011 1,133 deaths– Belgium Fifth Belgium FCCA Report 32 2011 In 2011 71 deaths in State of Oregon, USA Oregon 2015 Data Summary 33 2011 In 2011 3,695 deaths– Holland Daily Mail Reporter 2013 34 2012 In 2012 85 deaths in State of Oregon, USA Oregon 2015 Data Summary 35 2012 In 2012 4,188 deaths– Holland Daily Mail Reporter 2013 36 2013 In 2013 4829 deaths– Holland www.noeuthanasia.org.au 37 2013 In 2013 73 deaths in State of Oregon, USA Oregon 2015 Data Summary (2013 statistics widely criticized by not including missing data for reportedly 22 – 33 deaths) 38 2014 In 2014 5306 deaths– Holland www.noeuthanasia.org.au 39 2014 In 2014 105 deaths in State of Oregon, USA Oregon 2015 Data Summary 40 2015 In 2015 132 deaths in State of Oregon, USA Oregon 2015 Data Summary

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41 2015/2016 Quebec 469 10 December 2015 – 9 December 2016 EPC Newsletter #185:May 2017 42 2015/2016 Ontario 365 17 June 2016 – 31 March 2017 EPC Newsletter #185:May 2017 43 2015/2016 British Columbia 285 17 June 2016 – 28 February EPC Newsletter #185:May 2017 2017 44 2015/2016 Alberta 100 17 June 2016 - 31 March 2017 EPC Newsletter #185:May 2017 45 2015/2016 Manitoba 37 17 June 2016 - 31 March 2017 EPC Newsletter #185:May 2017 46 2015/2016 Nova Scotia 31 17 June 2016 - 31 March 2017 EPC Newsletter #185:May 2017 47 2015/2016 Saskatchewan 21 17 June 2016 - 31 March 2017 EPC Newsletter #185:May 2017 48 2015/2016 New Brunswick 9 17 June 2016 - 31 December 2016 EPC Newsletter #185:May 2017 49 2015/2016 Newfoundland 7 17 June 2016 - 31 March 2017 EPC Newsletter #185:May 2017 It is noted that 520 Australians were killed in the Vietnam War between 1965 and 1973.

Legend to this Annexure

Fifth Belgium FCCA Report = Federal Commission for Control and Assessment in their fifth report (2010‐2011) to the legislative chambers dawn up by the Federal Commission for Control and Assessment of Euthanasia cited by the European institute of Bioethics in the factsheet “EUTHANASIA in Belgium : 10 years on”, April 2012.

Daily Mail Reporter 2013 = “Mobile death squads to kill sick and elderly in their own homes leads to surge in suicide rates in the Netherlands” By Daily Mail Reporter Published: 22:16 +10:00, 24 September 2013 | Updated: 04:38 +10:00, 25 September 2013 www.noeuthanasia.org.au = http://www.noeuthanasia.org.au/blog/2322-netherlands-2014-euthanasia-report- another-10-increase.html Oregon 2015 Data Summary = Oregon Death with Dignity Act: 2015 Data Summary. Oregon Public Health Division February 4, 2016. For more information: http://www.healthoregon.org/dwd ACT = Australian Capital Territory Cth = Commonwealth of Australia (federal law) LUX = Luxembourg NED = the Netherlands NT = Northern Territory NSW = New South Wales PDX = State of Oregon, United States of America. SA = South Australia SUI = Switzerland UK = United Kingdom Vic = Victoria

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Annexure 35.: Correcting “Misinformation” International Misdeeds INTERNATIONAL MISDEEDS NEVER ADMITTED BY PRO-EUTHANASIA SUPPORTERS

1. The misdeed of euthanasia practitioners are never admitted to by supporters of euthanasia in Australia.

(a) Once again, I must further say that there is no conceivable reason why the same phenomena will not be what happens in Australia.

(b) It is likely that many a pro euthanasia proponent will simply dismiss all of the following by (very erroneously):

“That is more FUD” – i.e., Andrew Denton that is “Fear”, “Uncertainty” and “Doubt”

“That did not really happen” – for example Neil Francis, DyingforChoice.com

“That is just emotional argument”

“That is just you Christians labelling us”

“That is not a problem. That is evidence of the proper working of the scheme/ legislation”

“That is not example of slippery slope”

For such people, there will never be enough evidence even if it occurs right in front of them.

2. I provide the following list as a sample of the misdeeds done by practitioners of euthanasia (doctors, nurses, legislators and administrators) to show the trend that euthanasia proponents and practitioners is not as what was promised by people who promised that euthanasia would have safeguards – note, I have not listed all the misdeeds of Mr Wim Distelmans and all the non-compliances in Holland where Andrew Denton says they have an X-ray view of each and every death.

THE TRICK 3. One of my greatest concerns about the action of the majority of the Committee was that they simply did not call for evidence of international misdeeds that have occurred in Belgium.

4. The Chairman, in his “Chair’s foreword” (which in itself is a sell job without sufficient reference to the evidence) to the Final Report: Summary Booklet wrote:

While the shortcomings of the current system in Victoria were apparent, the Committee was also concerned about the risk posed by change, both to individuals and the impact on institutions over time. We were warned against change on the basis of what, purportedly, has occurred in jurisdictions that have legalised assisted dying. To evaluate these claims, five members of the Committee travelled to the Netherlands, Switzerland, Canada and the US State of Oregon in late March to early April 2016. We met with academics, regulators, health care professionals, supporters and opponents of the different legalised assisted dying frameworks. While these jurisdictions differ significantly in their assisted dying models, what they all have in common is robust regulatory frameworks that focus on transparency, patient-centred care and

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choice. We found no evidence of institutional corrosion or the often cited ‘slippery slope’. Indeed, the regulatory framework has been unchanged in Oregon, the Netherlands and Switzerland for many years. Given the conflicting evidence regarding practices and occurrences in these jurisdictions, the trip was very important for developing an understanding of the facts about how these systems work. 5. It is my respectful submission, that the majority simply did not call the “star witnesses” (for an example Mr Wim Distelmans) against their ultimate conclusion. This leads me to ask the following questions:

(a) Did they never know about what is happening in Belgium?

(b) Did they not want to know what is happening in Belgium?; or

(c) Did the exclude the evidence of people who would love to tell of what they have done which would constitute a slippery slope?

6. All three of the above questions leads me to the conclusion that:

(a) The majority fettered their discretion;

(b) The majority willfully or (at best) inadvertently made a report which is wrong, and therefore any decision based on this Final Report is based on information that is wrong and should be reconsidered.

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Annexure 36.: The Oregon Model and its Failures THE OREGON MODEL

1. The euthanasia model which has been adopted in Oregon has the following features – some of the more relevant features:

THE OREGON DEATH WITH DIGNITY ACT OREGON REVISED STATUTES 127.800 §1.01. Definitions. The following words and phrases, whenever used (1) "Adult" means an individual who is 18 years of age or older. (2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient’s terminal disease. (3) "Capable" means that in the opinion of a court or in the opinion of the patient’s attending physician or consulting physician, psychiatrist or psychologist, a patient has the ability to make and communicate health care decisions to health care providers, including communication through persons familiar with the patient’s manner of communicating if those persons are available. (4) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient’s disease. (7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription to end his or her life in a humane and dignified manner that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of: (a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control. (8) "Medically confirmed" means the medical opinion of the attending physician has been confirmed by a consulting physician who has examined the patient and the patient’s relevant medical records. (11) "Qualified patient" means a capable adult who is a resident of Oregon and has satisfied the requirements of ORS 127.800 to 127.897 in order to obtain a prescription for medication to end his or her life in a humane and dignified manner. (12) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. [1995 c.3 §1.01; 1999 c.423 §1] 127.805 §2.01. Who may initiate a written request for medication. (1) An adult who is capable, is a resident of Oregon, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication for the purpose of ending his or her life in a humane and dignified manner in accordance with ORS 127.800 to 127.897. 127.810 §2.02. Form of the written request. (1) A valid request for medication under ORS 127.800 to 127.897 shall be in substantially the form described in ORS127.897, signed and dated by the patient and witnessed by at least two individuals who, in the presence of the patient, attest that to the best of their knowledge and belief the patient is capable, acting voluntarily, and is not being coerced to sign the request. (2) One of the witnesses shall be a person who is not: (a) A relative of the patient by blood, marriage or adoption; (b) A person who at the time the request is signed would be entitled to any portion of the estate of the qualified patient upon death under any will or by operation of law; or

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(c) An owner, operator or employee of a health care facility where the qualified patients receiving medical treatment or is a resident. (3) The patient’s attending physician at the time the request is signed shall not be a witness. (4) If the patient is a patient in a long term care facility at the time the written requests made, one of the witnesses shall be an individual designated by the facility and having the qualifications specified by the Department of Human Services by rule. [1995 127.815 §3.01. Attending physician responsibilities. (1) The attending physician shall: (a) Make the initial determination of whether a patient has a terminal disease, escapable, and has made the request voluntarily; (b) Request that the patient demonstrate Oregon residency pursuant to ORS 127.860; (c) To ensure that the patient is making an informed decision, inform the patient of: (A) His or her medical diagnosis; (B) His or her prognosis; (C) The potential risks associated with taking the medication to be prescribed; (D) The probable result of taking the medication to be prescribed; and (E) The feasible alternatives, including, but not limited to, comfort care, hospice care and pain control; (d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is capable and acting voluntarily; (e) Refer the patient for counseling if appropriate pursuant to ORS 127.825; (f) Recommend that the patient notify next of kin; (g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed pursuant to ORS 127.800 to 127.897 and of not taking the medication in a public place; (h) Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the 15 day waiting period pursuant to ORS 127.840; (i) Verify, immediately prior to writing the prescription for medication under ORS127.800 to 127.897, that the patient is making an informed decision; (j) Fulfill the medical record documentation requirements of ORS 127.855; (k) Ensure that all appropriate steps are carried out in accordance with ORS 127.800 to 127.897 prior to writing a prescription for medication to enable a qualified patient toned his or her life in a humane and dignified manner; and (L)(A) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient’s discomfort, provided the attending physician is registered as a dispensing physician with the Board of Medical Examiners, has a current Drug Enforcement Administration certificate and complies with any applicable administrative rule; or (B) With the patient’s written consent: (i) Contact a pharmacist and inform the pharmacist of the prescription; and (ii) Deliver the written prescription personally or by mail to the pharmacist, who will dispense the medications to either the patient, the attending physician or an expressly identified agent of the patient. (2) Notwithstanding any other provision of law, the attending physician may sign the patient’s death certificate. [1995 c.3 §3.01; 1999 c.423 §3] 127.820 §3.02. Consulting physician confirmation. Before a patient is qualified under ORS 127.800 to 127.897, a consulting physician shall examine the patient and his or her relevant medical records and confirm, in writing, the

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attending physician’s diagnosis that the patient is suffering from a terminal disease, and verify that the patient is capable, is acting voluntarily and has made an informed decision. [1995 c.3 127.830 §3.04. Informed decision. No person shall receive a prescription for medication to end his or her life in a humane and dignified manner unless he or she has made an informed decision as defined in ORS 127.800 (7). Immediately prior to writing prescription for medication under ORS 127.800 to 127.897, the attending physician shall verify that the patient is making an informed decision. [1995 c.3 §3.04] 127.840 §3.06. Written and oral requests. In order to receive a prescription for medication to end his or her life in a humane and dignified manner, a qualified patient shall have made an oral request and a written request, and reiterate the oral request this or her attending physician no less than fifteen (15) days after making the initial oral request. At the time the qualified patient makes his or her second oral request, the attending physician shall offer the patient an opportunity to rescind the request. [1995 c.3 §3.06] 127.845 §3.07. Right to rescind request. A patient may rescind his or her request at any time and in any manner without regard to his or her mental state. Nonprescription for medication under ORS 127.800 to 127.897 may be written without the attending physician offering the qualified patient an opportunity to rescind the request. 127.850 §3.08. Waiting periods. No less than fifteen (15) days shall elapse between the patient’s initial oral request and the writing of a prescription under ORS 127.800 to 127.897. No less than 48 hours shall elapse between the patient’s written request and the writing of a prescription under ORS 127.800 to 127.897. [1995 c.3 §3.08] 127.855 §3.09. Medical record documentation requirements. The following shall be documented or filed in the patient’s medical record: (1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner; (2) All written requests by a patient for medication to end his or her life in a humane and dignified manner; (3) The attending physician’s diagnosis and prognosis, determination that the patient escapable, acting voluntarily and has made an informed decision; (4) The consulting physician’s diagnosis and prognosis, and verification that the patients capable, acting voluntarily and has made an informed decision; (5) A report of the outcome and determinations made during counseling, if performed; (6) The attending physician’s offer to the patient to rescind his or her request at the time of the patient’s second oral request pursuant to ORS 127.840; and (7) A note by the attending physician indicating that all requirements under ORS 127.800 to 127.897 have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed. [1995 c.3 §3.09] 127.865 §3.11. Reporting requirements. (1)(a) The Department of Human Services shall annually review a sample of records maintained pursuant to ORS 127.800to 127.897. (b) The department shall require any health care provider upon dispensing medication pursuant to ORS 127.800 to 127.897 to file a copy of the dispensing record with the department. (2) The department shall make rules to facilitate the collection of information regarding compliance with ORS 127.800 to 127.897. Except as otherwise required by law, the information collected shall not be a public record and may not be made available for inspection by the public. (3) The department shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section. [1995 c.3 §3.11;1999 c.423 §9; 2001 c.104 §40]

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STRUCTURE OF THE FAILURES OF EACH SPECIFIC MODEL

2. The references to statistics about euthanasia deaths and non-compliance in this and other jurisdictions can result in a lot of confusion very, very quickly. Of great interest to me, and I dare say anyone who reads this letter and the annexures, is the answer to the question – what is the non-compliance with the euthanasia legislation/ court defined or otherwise defined obligations in THIS jurisdiction that have been breached in THIS jurisdiction under THIS model that will serve as an example/ warning for Australia. In taking this approach, I am attempting show how no matter which of the various models of operating a system of legalized euthanasia adopted, that system will fail and I try to do that by showing the examples of failures of safeguards (including slippery slope of attitudes and changes in the law) that is relevant to that model.

3. For better or for worse, I have found the most substantial source of non-compliance with legislation from opponents of euthanasia. I have attempted to find contrary arguments, however, even factoring in any chance/ risk of over emotion or writing for heightened dramatic effect, opponents of euthanasia hare more likely to record failures to

4. In THIS jurisdiction, as with other euthanasia jurisdictions, there are I classify the breakdown the safeguard failures into a conveniently comprehensible collection of “usual suspects” as follows:

(a) time limit non-compliances – cooling off, time before expected death, time between being given the fatal drugs and their use by the patient etc;

(b) non-compliance in reporting the various aspects of the death, or the death itself;

(c) non-complying patient non-compliance, ie euthanizing people who do not comply with the requirements for an eligible person to be euthanized, further:

(i) depression being the reason for suicide; and/ or

(ii) feeling like burden being the reason for the suicide.

(d) failure to correctly diagnosis illnesses which sees recovery of the patient;

(e) Encouragement of euthanasia by supporter groups of euthanasia; and

(f) Lack of relationship between the patient and the medical practitioner (however described), where even though the letter of the law may be satisfied, the spirit of the legislation, which so proudly propounded the purposes of the intimate care, concern and knowledge of that medical practitioner (or more than one medical practitioner) is not, in reality, being provided to patient meaning the safeguard is useless. It is a mere “tick a box” (i.e., tick, yep, I have done what the law requires of me, so I need not do anything more) compliance exercise where the doctor does not care or is encouraged or financially rewarded for caring for the patient’s real, deep emotional needs.

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5. As someone who comes from the building industry as I do, and now as a lawyer, I have seen many pest inspection reports done on a tick a box standard form with a declaration that there are no termites. Then, when the house is purchased and the demolition started for the renovation – termites and termite damage is everywhere. No one bothers to do the destructive testing for terminates, likewise no one bothers to do the extra effort to look at the problems that lay below the surface of the patient who wants to die’s life.

6. I have taken this approach in each of the models of euthanasia which I have included in this letter. These above paragraphs under the heading “Structure of The Failures of Each Specific Model” apply to the other models, even though I write them only once in this study of the Oregon model.

7. Of great concern in all of the models of euthanasia, is when the “treatment” does not work, and the patient suffers, wakes, and then dies of the original condition or another condition that they may acquire between taking the poison and ultimately dying. This is not recorded as a reportable death under euthanasia legislation and the complication that occurred is then never brought to anyone’s attention as a failure of the safeguards or as a undignified death. Unless the death becomes known by a third party who then makes such a death wider known. Therefore, the number of additional deaths that are not recorded could be much higher than those officially reported.

FAILURES OF THE OREGON MODEL

8. The following comments relate to the issue of doctors not being present when the patient self-administers the lethal drugs and that this is a concern because the circumstances of the final decision to take the lethal drugs are not known – were they coerced into taking the final step?

(a) In 2016 either the prescribing physician (10.1%) or another healthcare provider (10.5%) was known to be present at the time the lethal medication was ingested. For the remaining 79.4% of people there was no physician or other healthcare provider known to be present at the time of ingestion. In other words for nearly four out of five cases there is no independent evidence that the person took the lethal medication voluntarily. It may well have been administered to them by a family member or other person under duress, surreptitiously or violently. We can never know.

(b) There is the well known case of Kate Cheney, where medical supervision opposed her euthanasia however her family members pressed for euthanasia. When she was cared for her, in hospices she wanted to live, when she was not, she did not want to. Eventually, the 85 year old “Kate took the pills and died” See Mulino Minority Report and elsewhere.

9. The following comments relate to the issue that there are complications, and sets out some reasons why the complications appear to be occurring – and that this is not something that any “model” can prevent, as it is inherent in the process of euthanasia;

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(a) “In 2010, two patients regained consciousness after ingesting medications. One patient regained consciousness 88 hours after ingesting the medication, subsequently dying from underlying illness three months later. The other patient regained consciousness within 24 hours, subsequently dying from underlying illness five days following ingestion.

(b) The first Seconal alternative turned out to be too harsh, burning patients’ mouths and throats, causing some to scream in pain. The second drug mix, used 67 times, has led to deaths that stretched out hours in some patients — and up to 31 hours in one case.

“[Twenty percent] of the cases were 3 hours or more before death, which we think is too long,” said Robert Wood, a retired HIV/AIDS researcher who volunteers with the advocacy group End of Life Washington, in an email. “The longest was 31 hours, the next longest 29 hours, the third longest 16 hours and some 8 hours in length.”

Patients and families are told to expect sleep within 10 minutes and death within four hours. When it takes far longer, family members get worried, even distressed, said Dr. Carol Parrot, a retired anesthesiologist who has prescribed drugs for dozens of aid-in-dying patients in Washington.

The doctors say this can be addressed with larger doses of the three drugs they have been using — diazepam, often used to treat anxiety; digoxin, used to treat heart issues; and morphine, a narcotic pain reliever — plus another heart medication, propranolol, in a four-drug cocktail aimed at quickly inducing death, Wood said.

Parrot and Wood are part of a seven-member group of doctors in the Northwest who came up with the three-drug protocol after Valeant Pharmaceuticals Inc., acquired the rights to secobarbital, known as Seconal, in 2015 and raised the price sharply.

“We wanted the new drug regime to be safe, reliable and effective — and cost $500 or less,” said Parrot.

Since 1997, when Oregon’s Death with Dignity law became the first in the nation, doctors had relied on fast-acting, relatively inexpensive barbiturates — either secobarbital or pentobarbital — for patients with terminal diagnoses who sought aid in dying in Oregon, Washington, California, Colorado, Montana and Vermont. The practice also has been approved in Washington, D.C., but is being reviewed by Congress.

Pentobarbital became unavailable after drugmakers blocked its use in U.S. death penalty executions.

Concerns about the overly long deaths surfaced last summer, Parrot said. Nearly all of the problems occurred in patients already taking high doses of opiates.

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“We run into patients who are so tolerant or dependent on narcotics that even the astronomically high doses of oral narcotics in our prescription do not stop them from breathing,” she said.

If patients have diseases that slow or alter normal organ function, it can affect the speed and amount of drugs absorbed in the small intestine, metabolized in the liver and sent to the rest of the body. Very large patients, too, may require larger doses.

For full article see Docs In Northwest tweak aid-In-dying drugs to prevent prolonged deaths Jo Nel Aleccia, Kaiser Health News Published 5:16 p.m. ET Feb. 16, 2017 https://www.usatoday.com/story/news/2017/02/16/kaiser-docs-northwest-tweak-aid--dying-drugs- prevent-prolonged-deaths/98003110/

(c) Some doctors do not care if the suffering patient takes a long time to die, as the following sets out – again, the pro euthanasia enthusiasts do not care for the consequences as they do not want to admit to any problems of euthanasia.

And not all doctors think long deaths are a problem. In Oregon, even with fast-acting barbiturates, time to death has ranged from one minute to 104 hours during the 20 years the law has been in effect, state records show.

“I’ve heard stories where it took quite a number of hours to die, and it was fine,” said Dr. David Grube, an Oregon-based medical director for the advocacy group Compassion & Choices.

(d) The Patients’ Rights Council’s comments on non-reporting and non-investigation of complications from euthanasia in Oregon in their report titled “Eleven Years Of Assisted Suicide In Oregon ” are stated as follows:

Prescribing doctors may not know about all complications since they were present at only 18.3% of reported deaths in year eleven.8 Information they provide might come from secondhand accounts of those present at the deaths 9 or may be based on guesswork. When asked if there is any systematic way of finding out and recording complications, Dr. Katrina Hedberg who was a lead author of most of Oregon's official reports said,

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"Not other than asking physicians."10 She acknowledged that, "after they write the prescription, the physician may not keep track of the patient."

Dr. Melvin Kohn, a lead author of the eighth annual report, noted that, in every case that they hear about, "it is the self-report, if you will, of the physician involved."

Complications contained in news reports are not included in official reports

§ Patrick Matheny received his lethal prescription from Oregon Health Science University via Federal Express. He had difficulty when he tried to take the drugs four months later. His brother- in- law, Joe Hayes, said he had to "help" Matheny die. According to Hayes,

"It doesn’t go smoothly for everyone. For Pat it was a huge problem. It would have not worked without help."

Referring to the Matheny case, Dr. Hedberg said that "we do not know exactly how he helped this person swallow, whether it was putting a feed tube down or whatever, but he was not prosecuted…" The annual report did not take note of this situation.

§ Speaking at Portland Community College, pro-assisted-suicide attorney Cynthia Barrett described a botched assisted suicide.

"The man was at home. There was no doctor there," she said. "After he took it [the lethal dose], he began to have some physical symptoms. The symptoms were hard for his wife to handle. Well, she called 911. The guy ended up being taken by 911 to a local Portland hospital.

Revived. In the middle of it. And taken to a local nursing facility. I don’t know if he went back home. He died shortly – some....period of time after that...."

Overdoses of barbiturates are known to cause vomiting as a person begins to lose consciousness. The patient then inhales the vomit. In other cases, panic, feelings of terror and assaultive behavior can occur from the drug-induced confusion. But Barrett would not say exactly which symptoms had taken place in this instance. She has refused any further discussion of the case. Annual reports do not reflect this case.

Complications are not investigated

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§ David Prueitt took the prescribed lethal dose in the presence of his family and members of Compassion & Choices. [Note: In early 2005, Compassion in Dying (CID) merged with the Hemlock Society. The combined organization is now called Compassion & Choices (C & C).] After being unconscious for 65 hours, he awoke.

It was only after his family told the media about the botched assisted suicide that C & C publicly acknowledged the case.17 DHS issued a release saying it "has no authority to investigate individual Death with Dignity cases."

§ Referring to DHS's ability to look into complications, Dr. Hedberg explained that "we are not given the resources to investigate" and "not only do we not have the resources to do it, but we do not have any legal authority to insert ourselves."

§ David Hopkins, Data Analyst for the Eighth Annual Report, said, "We do not report to the Board of Medical Examiners if complications occur; no, it is not required by law and it is not part of our duty."

(e) The Patients’ Rights Council’s regarding Oregon, cited Dr. Sherwin Nuland of Yale University of Medicine – who is a supporter of euthanasia including physician injecting legal drugs into the patient which is permissible in Holland about where he writes and intervention there is not illegal as it is the legislated practice - who said:

"The Dutch findings seem more credible [than the Oregon reports],"

The background for this comment is the following statistic

In the Netherlands, assisted-suicide complications and problems are not uncommon. One Dutch study found that, because of problems or complications, doctors in the Netherlands felt compelled to intervene (by giving a lethal injection) in 18% of cases.21 This led Dr. Sherwin Nuland of Yale University of Medicine to question the credibility of Oregon’s lack of reported complications. Nuland, who favors physician-assisted suicide, noted that the Dutch have had years of practice to learn ways to overcome complications, yet complications are still reported.

10. The following comments relate to the issue that people with depression are being permitted to die under Oregon’s euthanasia laws. There is very little concern shown by doctors and there is very little treatment for the patient’s real problem

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(a) Results 15 study participants met “caseness” criteria for depression, and 13met criteria for anxiety. 42 patients died by the end of the study;18 received a prescription for a lethal drug under the Death with Dignity Act, and nine died by lethal ingestion. 15 participants who received a prescription for a lethal drug did not meet criteria for depression; three did. All three depressed participants died by legal ingestion within two months of the research interview. See Citation Cite this as: BMJ 2008;337:a1682 doi:10.1136/bmj.a1682

Conclusion Although most terminally ill Oregonians who receive aid in dying do not have depressive disorders, the current practice of the Death with Dignity Act may fail to protect some patients whose choices are influenced by depression from receiving a prescription for a lethal drug.

(b) Why did only one of the 65 people reported to have taken their lives with the drugs have a psychiatric or psychological referral? Researchers at Oregon Health & Sciences University reported in 2008 that 25 percent of patients requesting doctor-assisted suicide were considered to be depressed. There continues to be no protection for depressed patients in the process.

11. The following comments relate to the issue that people euthanasia enthusiasts are encouraging the further use and greater liberalization of euthanasia.

(a) In 2006, The group promoting assisted suicide, so-called "Compassion and Choices” attorneys intimidated the Oregon Department of Human Services (DHS) to change to euphemisms in referring to Oregon's assisted suicide law

(b) See “Assisted suicide: Conspiracy and control” Rick Attig, The Oregonian The Oregonian on September 24, 2008 at 7:01 PM, located at http://www.oregonlive.com/opinion/index.ssf/2008/09/assisted_suicide_conspiracy_an.html citing two Oregon doctors: Kenneth R. Stevens, Jr., M.D., is Vice-president, Physicians for Compassionate Care Education Foundation and William L. Toffler, M.D., is National Director, Physicians for Compassionate Care Education Foundation.

“The group promoting assisted suicide, so-called "Compassion and Choices (C&C)", are like the fox in the proverbial chicken coop; in this case the fox is reporting its version to the farmer regarding what is happening in the coop. Members of C&C authored and proclaim they are the stewards of Oregon's assisted suicide law. They call it "their law". They have arranged and participated in 3/4ths of Oregon's assisted suicide cases. Their medical director reported she'd participated in more than 100 doctor-assisted suicides as of March 2005. A physician board-member reported in 2006 that he'd been involved with over forty such patients. Their executive director reported in September 2007 that he has

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 165

attended more than 36 assisted suicide deaths. He has been involved in preparing the lethal solution. Yet, he is not a doctor.

In 2006, C&C's attorneys intimidated the Oregon Department of Human Services (DHS) to change to euphemisms in referring to Oregon's assisted suicide law. The limited DHS reports of assisted suicides is another indication of this organization's influence. Information that is damaging to the "good public image" of Oregon's assisted suicide law is hidden or glossed-over in the DHS reports. As such, we believe the initials "C&C" of this organization more properly reflect its repeated public behavior --- that is, "Conspiracy & Control".

Regardless of one's perspective on assisted suicide, all citizens should be concerned about the controlling influence of this death-promoting organization. In all other areas of medicine, we are striving for increased transparency---not conspiracy and control.”

(c) The poor attitude of euthanasia enthusiasts towards other people’s lives can be summed up in the following quote of a person who contributed to the drafting of the euthanasia laws in Oregon.

Derek Humphry, founder of the Hemlock Society and author of "Final Exit," who helped write the Oregon Death With Dignity Law, said only about 30 people a year choose an assisted death, which must be approved by two doctors.

"It's purely optional and the patient and doctor can walk away from it," the 78-year-old told ABCNEWS.com. "It's not the mad rush our enemies predicted and for our residents it has worked out well."

His own wife, Jean, was diagnosed with fast-growing breast cancer in 1975 and asked him to help find drugs to help her die. At 42, she chose to take them and ended her life.

Humphry says the Oregon Health Plan's approach to coverage is sound.

"People cling to life and look for every sort of crazy cure to keep alive and usually they are better off not to have done it," he said.

See Death Drugs Cause Uproar in Oregon By Susan Donaldson James and Rana Senol of ABC News http://abcnews.go.com/Health/story?id=5517492&page=1

(d) the pro-euthanasia groups are actually highly involved in encouraging and reporting assisted suicide in Oregon, by their own admission.

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The media often tout the “statistics” from Washington and Oregon, that they claim, demonstrate no abuses in assisted suicide. What a crock. First, the statistics come from doctor self-reporting, and second, most assisted suicides are herded through the system by Compassion and Choices or other suicide groups, meaning they have a huge potential influence on what the state learns, and what we are told.

The same is true in Oregon, where Compassion and Choices is involved in a large majority of assisted suicides, which refer death doctors to people whose own MDs won’t lethally prescribe. The suicide pushers, can say accurately, as in the old Outer Limits TV show, “We are controlling transmission…we control all you see and hear.”

See “The Corner The one and only. Suicide Groups Control Assisted Suicide in WA/OR” by Wesley J. Smith September 15, 2016 7:06 PM Read more at: http://www.nationalreview.com/corner/440093/suicide-groups-control-assisted-suicide-waor

12. The following comments relate to the issue that some people look for excuses to consider the euthanasia laws should be extended;

(a) In relation to a member of the Oregon parliament Dr Greenlick wishing to change the proximity to death from 6 to 12 months the following – noting that in Victoria and New South Wales the proposed law is already going to start at the higher end of this spectrum despite the proposed laws claiming to be conservative:

“With amyotrophic lateral sclerosis, "by the time you get within six months, you often don't have the manual dexterity to swallow a pill or even still have the reflex to swallow," said Greenlick, a retired health researcher.”

The news article went on to say:

“However, in 2016 nearly one out of two (48.87%) people who died after taking prescribed lethal medication cited concerns about being a “Burden on family, friends/caregivers” as a reason for the request”.

13. The following comments relate to the issue that there is a lack of relationship between the doctors and the patient who intends to take their own life. This is supposed to be a key safeguard as the doctor knows their patient and can influence them for the patient’s own good. The reality, that does not happen as it should.

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(a) The data indicates that in some cases doctors have had a relationship with the patient of less than one week’s duration and that in 2015, in half the cases the doctor patient relationship was of 9 weeks duration or less.18 A total of 106 physicians wrote 218 prescriptions during 2015 (1‐27 prescriptions per physician).19

14. The following comments relate to the issue that the time requirements are not being adhered to by the participants in Oregon’s suicide scheme.

(a) In relation to the issue of when the person is given the legal drugs and when they take the lethal drugs, which theoretically should be no more than 180 days, being 6 months under the Oregon Law, the following has happened:

The Death With Dignity Act provides that before prescribing a lethal substance a doctor must first determine whether a person has a “terminal disease”. This is defined by section 127.800 (12) of the Oregon

Revised Statute to mean “an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months”.

In 2016 one person ingested lethal medication 539 days (nearly 18 months) after the initial request for the lethal prescription was made. The longest duration between initial request and ingestion recorded is 1009 days (that is 2 years and 9 months).Evidently in these cases the prognosis was wildly inaccurate.

(a) In relation to doctors being approached when the person has more than 6 months to live, the following has happened:

Another case involved a cancer patient, Jeanette Hall. A doctor had given her a terminal diagnosis of six months to a year to live, based upon not being treated for the cancer. She was referred to Dr Kenneth Stevens. On her first visit with Dr Stevens she made it clear that she did not want to be treated. After suggesting that she discuss the idea with her son, she agreed to treatment and, at the time of Dr Stevens’ affidavit, had been alive for 13 years. In his view, “the mere presence of legal assisted suicide had steered her to suicide.”

15. The following comments relate to the issue despite the alleged safeguard of doctors giving referral to alternatives to euthanasia, the reality is that economics dictates that direction towards euthanasia is so often given priority – especially where the patient is struck by poverty.

(a) The well know Wagner case;

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The 64-year-old Oregon woman, whose lung cancer had been in remission, learned the disease had returned and would likely kill her. Her last hope was a $4,000-a-month drug that her doctor prescribed for her, but the insurance company refused to pay.

What the Oregon Health Plan did agree to cover, however, were drugs for a physician-assisted death. Those drugs would cost about $50.

Cancer drugs can cost anywhere from $3,000 to $6,000 a month. The cost of lethal medication, on the other hand, is about $35 to $50.

Dr. Jonathan Groner, clinical professor of surgery at OSU College of Medicine and Public Health in Columbus, Ohio, said some patients may want to prolong their lives for a life-cycle event, like a birth or wedding.

"A course of chemo would not cure, but would subdue the cancer long enough to be meaningful," he told ABCNEWS.com. "There are many people with slow-growing but nonetheless metastatic cancer for whom death, while inevitable, is many years away."

"The problem with the Oregon plan is it sounds like administrators, not physicians, are making treatment decisions," he said. "And if a patient can get assisted death paid for but not cancer treatment, the choice is obvious."

See Death Drugs Cause Uproar in Oregon By Susan Donaldson James and Rana Senol of ABC News http://abcnews.go.com/Health/story?id=5517492&page=1

(b) The well known case of 53-year-old Randy Stroup of Dexter, he had prostate cancer and unable to pay for expensive chemotherapy, he applied to Oregon's state-run health plan for help. He was sent a letter advising of a lack of cover however euthanasia costs were covered.

See “Oregon Offers Terminal Patients Doctor-Assisted Suicide Instead of Medical Care” By Dan Springer Published 28 July 2008 http://www.foxnews.com/story/2008/07/28/oregon-offers- terminal-patients-doctor-assisted-suicide-instead-medical-care.html

16. In relation to each of the above areas of non-compliance, I cannot go past the “Not Dead Yet” organisation’s letter titled “NDY Urges AMA To Affirm Longstanding Opposition to Legalizing Assisted Suicide” dated 15 February 2017 which included a “Supplemental Submission to the American Medical Association Council on Ethical and Judicial Affairs By Diane Coleman, JD, President/CEO Not Dead Yet February 14, 2017” which can be located in full at http://notdeadyet.org/2017/02/ndy-urges-ama-to-affirm-longstanding-opposition-to-

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 169

legalizing-assisted-suicide.html . I have extracted the relevant paragraphs, and I retain these as their context and flow is more productive to the reader than splitting them up under the above paragraph. Diane Coleman, JD submitted the following to the AMA

One of the most frequently repeated claims by proponents of assisted suicide laws is that there is “no evidence or data” to support any claim that these laws are subject to abuse, and that there has not been “a single documented case of abuse or misuse” in Oregon during the 18 reported years. These claims are demonstrably false. Although SB1129 is actually a euthanasia bill, as explained later below, an examination of the Oregon myth is still relevant and essential to the Committee’s deliberations.

Regarding documented cases, please refer to a compilation of individual cases and source materials pulled together by the Disability Rights Education and Defense Fund entitled Oregon and Washington State Abuses and Complications.[1] For an in-depth analysis of several cases by Dr. Herbert Hendin and Dr. Kathleen Foley, please read Physician-Assisted Suicide in Oregon: A Medical Perspective.[2]

The focus of the discussion below is the Oregon Health Division data.[3] These reports are based on forms filed with the state by the physicians who prescribe lethal doses and the pharmacies that dispense the drugs. As the early state reports admitted:

“As best we could determine, all participating physicians complied with the provisions of the Act. . . . Under reporting and noncompliance is thus difficult to assess because of possible repercussions for noncompliant physicians reporting to the division.”

Further emphasizing the serious limits on state oversight under the assisted suicide law, Oregon authorities also issued a release in 2005 clarifying that they have No authority to investigate Death with Dignity case.[4] Thus, all of the state reported data is a statistical summary of self-reports submitted by physicians who prescribe lethal drugs, nothing more.

Nevertheless, contrary to popular belief and despite these extreme limitations, the Oregon state reports substantiate some of the problems and concerns raised by opponents of assisted suicide bills.

Non-Terminal Disabled Individuals Are Receiving Lethal Prescription In Oregon

The Oregon Health Division assisted suicide reports show that non-terminal people receive lethal prescriptions every year.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 170

The prescribing physicians’ reports to the state include the time between the request for assisted suicide and death for each person. However, the online state reports do not reveal how many people outlived the 180-day prediction. Instead, the reports give that year’s median and range of the number of days between the request for a lethal prescription and death. This is on page 7 of the 2015 annual report.[5] In 2015, at least one person lived 517 days; across all years, the longest reported duration between the request for assisted suicide and death was 1009 days. In every year except the first year, the reported upper range is significantly longer than 180 days.

The definition of “terminal” in the statute only requires that the doctor predict that the person will die within six months. There is no requirement that the doctor consider the likely impact of medical treatment in terms of survival, since people have the right to refuse treatment. Unfortunately, while terminal predictions of some conditions, such as some cancers, are fairly well established, this is far less true six months out, as the bill provides, rather than one or two months before death, and is even less true for other diseases. Add the fact that many conditions will or may become terminal if certain medications or routine treatments are discontinued – e.g. insulin, blood thinners, pacemaker, CPAP – and “terminal” becomes a very murky concept.

The state report’s footnote about “other” conditions found eligible for assisted suicide has grown over the years, to include:

“. . . benign and uncertain neoplasms, other respiratory diseases, diseases of the nervous system (including multiple sclerosis, Parkinson’s disease and Huntington’s disease), musculoskeletal and connective tissue diseases, cerebrovascular disease, other vascular diseases, diabetes mellitus, gastrointestinal diseases, and liver disease.”

Overall as of 2015, 7%, or 68 individuals across all reported years, had conditions classified as “other”. Another 16% had ALS, chronic respiratory or heart disease, or HIV/AIDS. In addition, it should be noted that the attending physician who determines terminal status and prescribes lethal drugs is not required to be an expert in the disease condition involved, nor is there any information about physician specialties in the state reports.

The Only Certifiers of Non-Coercion And Capability Need Not Know the Person

Four people are required to certify that the person is not being coerced to sign the assisted suicide request form, and appears capable: the prescribing doctor, second-opinion doctor, and two witnesses.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 171

In most cases, the prescribing doctor is a doctor referred by assisted suicide proponent organizations. (See, M. Golden, Why Assisted Suicide Must Not Be Legalized,[6] section on “Doctor Shopping” and related citations). The Oregon state reports say that the median duration of the physician patient relationship is 12 weeks. Thus, lack of coercion is not usually determined by a physician with a longstanding relationship with the patient. This is significant in light of well- documented elder abuse-identification and reporting problems among professionals in a society where an estimated one in ten elders is abused, mostly by family and caregivers. (Lachs, et al., New England Journal of Medicine, Elder Abuse.[7])

The witnesses on the request form need not know the person either. One of them may be an heir (which would not be acceptable for witnessing a property will), but neither of them need actually know the person (the form says that if the person is not known to the witness, then the witness can confirm identity by checking the person’s ID).

So neither doctors nor witnesses need know the person well enough to certify that they are not being coerced.

No Evidence of Consent or Self-Administration At Time of Death

In about half the reported cases, the Oregon Health Division reports also state that no health care provider was present at the time of ingestion of the lethal drugs or at the time of death. Footnote six clarifies:

“A procedure revision was made mid‐year in 2010 to standardize reporting on the follow‐up questionnaire. The new procedure accepts information about time of death and circumstances surrounding death only when the physician or another health care provider is present at the time of death. This resulted in a larger number of unknowns beginning in 2010.”

While the only specific example mentioned is the “time of death,” other “circumstances surrounding death” include whether the lethal dose was self-administered and consensual at the time of death.

Therefore, although “self administration” is touted as one of the key “safeguards” in the Oregon law, in about half the cases, there is no evidence of consent or self-administration at the time of ingestion of the lethal drugs. If the drugs were, in some cases, administered by others without consent, no one would know. The request form constitutes a virtual blanket of legal immunity covering all participants in the process.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 172

What is perhaps most disturbing is that bills recently introduced in Hawaii and the District of Columbia do not even purport to require self-administration of the lethal dose. Even if an ill person requests a lethal prescription just in case they want it later, whether of their own volition or after being “encouraged” to do so, once the drugs are obtained, the ill person has no protection from unscrupulous family members or caregivers. And without any nominal requirement, or procedural or enforcement provisions related to self-administration, these are not assisted suicide bills, but open and full blown euthanasia bills.

Pain Is Not the Issue, Unaddressed Disability Concerns Are

The top five reasons doctors give for their patients’ assisted suicide requests are not pain or fear of future pain, but psychological issues that are all-too-familiar to the disability community: “loss of autonomy” (92%), “less able to engage in activities” (90%), “loss of dignity” (79%), “losing control of bodily functions” (48%), and “burden on others” (41%).

These reasons for requesting assisted suicide pertain to disability and indicate that over 90% of the reported individuals, possibly as many as 100%, are disabled.

Three of these reasons (loss of autonomy, loss of dignity, feelings of being a burden) could be addressed by consumer-directed in-home long-term care services, but no disclosures about or provision of such services is required. Some of the reported reasons are clearly psycho-social and could be addressed by disability-competent professional and peer counselors, but this is not required either. Moreover, only 5.3% of patients who request assisted suicide were referred for a psychiatric or psychological evaluation, despite studies showing the prevalence of depression in such patients.

Basically, the law operates as though the reasons for suicidal feelings don’t matter, and nothing need be done to address them.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 173

Annexure 37.: Oregon Culture Distinguished 1. In 2016, I travelled to Portland Oregon to do the marathon there. I did the marathon on 9 October 2016. I am one of only three (3) Australians who I know of who did that marathon last year. Running over St John’s Bridge was something l looked forward to for almost a year and the finisher’s gifts and medal were awesome.

2. In my research, I learned that Oregon is in possession of a reputation amongst states in the United States as being a bit on the alternative side. I would compare it to the “alternative” portion of the population located in Newtown in Sydney rather than the conservative people in Kirribilli, Baulkham Hills or Penrith.

3. Euthanasia was introduced into Oregon by a ballot held in 1994, it passed on a 51% for and 49% against. There law enacting euthanasia was then the subject of an injunction for approximately three (3) years.

Barbara Robert’s testimony in the Dying for Change submission to the Victorian Inquiry

4. The organisation Dying for Change, Neil Francis has procured the testimony of the former Oregon Governor, the honourable, Barbara Roberts, who self-serving wrote as follows (Roberts Testimony):

“I believe strongly that what we can talk about we can make better and I don’t think that anything is much more clear about this [assisted dying] law than what is happening in Oregon.

More people are in hospice in this State than almost any State in the nation. Our pain control management is better than almost any State in the nation, maybe any State. More people die at home than in hospitals in Oregon.

Everything about the process has made dying better in Oregon for all kinds of citizens, whether they use the law and take advantage of it, or whether they don’t. And so it has given them dignity, it has given them choices, it has given them a sense of self-control.

Oregon proves what happens when you make the law and the compassion come together.”

5. In my view, the Roberts Testimony deserves very little value/ weight, for the following reasons:

(a) Governor Roberts was in office from 1990 to 1995, including when the ballot for euthanasia was passed, by at 2% majority – there is no way that she would oppose legislation that came into being during her time as Governor;

(b) Governor Roberts has not stated that there is no unlawful deaths – she has not dealt with the unlawful deaths which have been alleged;

(d) Governor Roberts has relied upon the choice argument which is faulty; and

(e) Governor Roberts believes that Oregon proves, but she does not say what the proof is based on.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 174

(f) This phrase is yet one more meaningless emotion based affirmation that puts out cliché words but does not define, articulate or thoroughly argue them and expects people to agree with them.

Senator Ginny Burdick’s testimony in the Dying for Change submission to the Victorian Inquiry

6. Once again, the organisation Dying for Change, Neil Francis has procured a political testimony, this time from Senator Ginny Burdick, Acting Senate President Parliament of Oregon who self-serving wrote as follows (Burdick Testimony):

“I would just encourage Victorians to give this [assisted dying] law a chance, to give it overwhelming support and to just reassure Victorians especially with your wonderful health care system in Australia, this is just a very, very positive addition to your health care options at the end of life.

It is a compassionate measure that will help a lot of people, whether or not they actually use it. It will help them have peace of mind at the end of their lives that they have control, they have dignity and they have the respect of your state to make their own decisions about the end of life.”

7. In my view, the Burdick Testimony deserves very little value/ weight, for the following reasons:

(a) “giving a chance” is not possible, it will not be withdrawn if passed – this is not the same as going to a r estaurant which one has never been to before and “giving that restaurant a try for something different”

(b) Senator Burdick has said she thinks it is positive, but not said how or why it is positive;

(d) Senator Burdick has used the word dignity but not stated how this will give them dignity that they did nto have or are likely or at risk of losing if a dying person is refused euthanasia;

(e) Again, this phrase is yet one more meaningless emotion based affirmation that puts out cliché words but does not define, articulate or thoroughly argue them and expects people to agree with them.

Oregon is a Recreational Drug State

8. Unlike any state of Australia, Oregon is a state where recreational marijuana program is lawful

9. Indeed there is a trend in the legalization of both euthanasia and recreational marijuana program:

(a) Washington and Colorado and then Oregon allow recreational marijuana program; and

(b) Washington and Oregon allow euthanasia.

That sets a bad trend for Australia if the voices who call for one also call for the other.

10. Senator Burdick is a co-chair of the Oregon Joint Committee on Marijuana Legalization.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 175

Annexure 38.: The Washington State Model and its Failures THE WASHINGTON STATE MODEL

1. The euthanasia model which has been adopted in Washington State Washington Death with Dignity Act 2009 has the following features – Most Relevant Provisions only Included Here:

(1) "Adult" means an individual who is eighteen years of age or older. (2) "Attending physician" means the physician who has primary responsibility for the care of the patient and treatment of the patient's terminal disease. (4) "Consulting physician" means a physician who is qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease. (7) "Informed decision" means a decision by a qualified patient, to request and obtain a prescription for medication that the qualified patient may self-administer to end his or her life in a humane and dignified manner, that is based on an appreciation of the relevant facts and after being fully informed by the attending physician of: (a) His or her medical diagnosis; (b) His or her prognosis; (c) The potential risks associated with taking the medication to be prescribed; (d) The probable result of taking the medication to be prescribed; and (e) The feasible alternatives including, but not limited to, comfort care, hospice care, and pain control. (11) "Qualified patient" means a competent adult who is a resident of Washington state and has satisfied the requirements of this chapter in order to obtain a prescription for medication that the qualified patient may self- administer to end his or her life in a humane and dignified manner. (12) "Self-administer" means a qualified patient's act of ingesting medication to end his or her life in a humane and dignified manner. (13) "Terminal disease" means an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months. [2009 c 1 § 1 (Initiative Measure No. 1000, approved November 4, 2008).] Written request for medication. (1) An adult who is competent, is a resident of Washington state, and has been determined by the attending physician and consulting physician to be suffering from a terminal disease, and who has voluntarily expressed his or her wish to die, may make a written request for medication that the patient may self-administer to end his or her life in a humane and dignified manner in accordance with this chapter. (2) A person does not qualify under this chapter solely because of age or disability Attending physician responsibilities. (1) The attending physician shall: (a) Make the initial determination of whether a patient has a terminal disease, is competent, and has made the request voluntarily; (b) Request that the patient demonstrate Washington state residency under RCW 70.245.130; (c) To ensure that the patient is making an informed decision, inform the patient of: (i) His or her medical diagnosis; (ii) His or her prognosis; (iii) The potential risks associated with taking the medication to be prescribed;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 176

(iv) The probable result of taking the medication to be prescribed; and (v) The feasible alternatives including, but not limited to, comfort care, hospice care, and pain control; (d) Refer the patient to a consulting physician for medical confirmation of the diagnosis, and for a determination that the patient is competent and acting voluntarily; (e) Refer the patient for counseling if appropriate under RCW 70.245.060; (f) Recommend that the patient notify next of kin; (g) Counsel the patient about the importance of having another person present when the patient takes the medication prescribed under this chapter and of not taking the medication in a public place; (h) Inform the patient that he or she has an opportunity to rescind the request at any time and in any manner, and offer the patient an opportunity to rescind at the end of the fifteen-day waiting period under RCW 70.245.090; (i) Verify, immediately before writing the prescription for medication under this chapter, that the patient is making an informed decision; (j) Fulfill the medical record documentation requirements of RCW 70.245.120; (k) Ensure that all appropriate steps are carried out in accordance with this chapter before writing a prescription for medication to enable a qualified patient to end his or her life in a humane and dignified manner; and (l)(i) Dispense medications directly, including ancillary medications intended to facilitate the desired effect to minimize the patient's discomfort, if the attending physician is authorized under statute and rule to dispense and has a current drug enforcement administration certificate; or (ii) With the patient's written consent: (A) Contact a pharmacist and inform the pharmacist of the prescription; and (B) Deliver the written prescription personally, by mail or facsimile to the pharmacist, who will dispense the medications directly to either the patient, the attending physician, or an expressly identified agent of the patient. Medications dispensed pursuant to this subsection shall not be dispensed by mail or other form of courier. (2) The attending physician may sign the patient's death certificate which shall list the underlying terminal disease as the cause of death. [2009 c 1 § 4 (Initiative Measure No. 1000, approved November 4, 2008).] Waiting periods. (1) At least fifteen days shall elapse between the patient's initial oral request and the writing of a prescription under this chapter. (2) At least forty-eight hours shall elapse between the date the patient signs the written request and the writing of a prescription under this chapter. [2009 c 1 § 11 (Initiative Measure No. 1000, approved November 4, 2008).] Medical record documentation requirements. The following shall be documented or filed in the patient's medical record: (1) All oral requests by a patient for medication to end his or her life in a humane and dignified manner; (2) All written requests by a patient for medication to end his or her life in a humane and dignified manner; (3) The attending physician's diagnosis and prognosis, and determination that the patient is competent, is acting voluntarily, and has made an informed decision; (4) The consulting physician's diagnosis and prognosis, and verification that the patient is competent, is acting voluntarily, and has made an informed decision; (5) A report of the outcome and determinations made during counseling, if performed;

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(6) The attending physician's offer to the patient to rescind his or her request at the time of the patient's second oral request under RCW 70.245.090; and (7) A note by the attending physician indicating that all requirements under this chapter have been met and indicating the steps taken to carry out the request, including a notation of the medication prescribed. [2009 c 1 § 12 (Initiative Measure No. 1000, approved November 4, 2008).] Disposal of unused medications. Any medication dispensed under this chapter that was not self-administered shall be disposed of by lawful means. [2009 c 1 § 14 (Initiative Measure No. 1000, approved November 4, 2008).] Reporting of information to the department of health—Adoption of rules—Information collected not a public record— Annual statistical report. (1)(a) The department of health shall annually review all records maintained under this chapter. (b) The department of health shall require any health care provider upon writing a prescription or dispensing medication under this chapter to file a copy of the dispensing record and such other administratively required documentation with the department. All administratively required documentation shall be mailed or otherwise transmitted as allowed by department of health rule to the department no later than thirty calendar days after the writing of a prescription and dispensing of medication under this chapter, except that all documents required to be filed with the department by the prescribing physician after the death of the patient shall be mailed no later than thirty calendar days after the date of death of the patient. In the event that anyone required under this chapter to report information to the department of health provides an inadequate or incomplete report, the department shall contact the person to request a complete report. (2) The department of health shall adopt rules to facilitate the collection of information regarding compliance with this chapter. Except as otherwise required by law, the information collected is not a public record and may not be made available for inspection by the public. (3) The department of health shall generate and make available to the public an annual statistical report of information collected under subsection (2) of this section. [2009 c 1 § 15 (Initiative Measure No. 1000, approved November 4, 2008).] Reporting. (1) To comply with the act, within thirty calendar days of writing a prescription for medication to end the life of a qualified patient, the attending physician shall send the following completed, signed, and dated documentation by mail to the State Registrar, Center for Health Statistics, P.O. Box 47814, Olympia, WA 98504: (a) The patient's completed written request for medication to end life, either using the Written Request for Medication to End My Life in a Humane and Dignified Manner form, DOH 422-063, or in substantially the same form as described in the act; (b) Attending Physician's Compliance form, DOH 422-064; (c) Consulting Physician's Compliance form, DOH 422-065; and (d) Psychiatric/Psychological Consultant's Compliance form, DOH 422-066, if an evaluation was performed. (2) Within thirty calendar days of a qualified patient's ingestion of a lethal dose of medication obtained under the act, or death from any other cause, whichever comes first, the attending physician shall complete the Attending Physician's After Death Reporting form, DOH 422-068. (3) To comply with the act, within thirty calendar days of dispensing medication, the dispensing health care provider shall file a copy of the Pharmacy Dispensing Record form, DOH 422-067, with the State Registrar, Center for Health Statistics, P.O. Box 47814, Olympia, WA 98504. Information to be reported to the department shall include: (a) Patient's name and date of birth; (b) Patient's address; (c) Prescribing physician's name and phone number;

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(d) Dispensing health care provider's name, address and phone number; (e) Medication dispensed and quantity; (f) Date the prescription was written; and (g) Date the medication was dispensed. FAILURES OF THE WASHINGTON STATE MODEL

2. Notwithstanding all of the alleged safeguards in the Washington State model, the Oregon model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

3. Of the many failures I have been able to locate or otherwise agree with where they are in the Final Report’s minority reports, I include them below. Where the incident has been included in a Minority report to the Final report, I include it here as not everyone who reads this report of mine will read the Minority Reports – this is just an unfortunate reality of people being time poor and having good intentions to do further research but never being able have the time do to that research. In all reality also, as time goes by, the minority reports may become harder and harder to find.

(a) Poor Record keeping in Washington and in Oregon, USA, see Euthanasia Prevention Coalition Newsletter December 2016:

Among the 1,642 documented assisted suicides in Oregon and Washington since the states began reporting statistics in 1998 and 2009, respectively, The Register found:

COMPL ICAT IONS: At least 38 people (about 2.5 %) experienced complications as they were dying, including regurgitation of the fatal medicine, seizures or waking up after taking the medication.

INCOMPL ETE RECORDS : At least 478 deaths occurred without record of key details, such as whether complications occurred. At least 203 people have died without a record of whether the deaths were from ingesting medication or from natural causes.

PR OLONGED DEATHS : In 2009, a person in Oregon took more than four days to die after taking the medication. Of the two states, Washington had the most complete data. For deaths where time was recorded, 17 percent took 91 or more minutes. In Oregon, the median time before death in 2015 was 25 minutes.

NO DATA : Two of the states where assisted suicide is an option—Vermont and Montana—do not track deaths at all. Data from California and Colorado, the most recent states to legalize assisted suicide, is not yet available.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 179

(b) In Washington, in 2014, see Euthanasia Prevention Coalition Newsletter Number 170 January 2016. Naturally, I hold the view that each of the 27 non-compliances should be considered to be unlawful and therefore for should be considered to be MURDER.

The 2014 Washington State’s assisted suicide report states that 176 lethal prescriptions were received, 126 people died by assisted suicide, 17 deaths were from other causes, 6 people remained alive and there were 27 deaths from unknown causes. The data states that the ingestion status of the 27 deaths from unknown causes is simply unknown and the lethal prescription is unaccounted. What kind of oversight is that?

(c) In Washington, in 2015, see Euthanasia Prevention Coalition Newsletter Number 177: September 2016. Naturally, I hold the view that each of the 12 non-compliances should potentially be considered to be unlawful and therefore for should be considered to be MURDER.

The Washington State Department of Health 2015 Death with Dignity Act Report states that assisted suicide was up by 31.7% to 166 in 2015 from 126 in 2014 with a 22% increase in lethal prescription from 2014 to 213.

Out of the 213 lethal prescriptions in 2015 there were 166 reported assisted suicide deaths, 24 deaths from other causes, 12 deaths where the “ingestion status” was unknown and 11 people remained alive.

Dangerously, when the ingestion status is unknown, then the status of the lethal drugs is also unknown.

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Annexure 39.: The Dutch Model and its Failures The Dutch Model

1. The euthanasia model which has been adopted in Dutch is written in Dutch, I do not speak, read or write Dutch, thus I am reliant on summaries, and, I have located from the Patients’ Rights Council. I use this because it is the most succinct, and includes a factual list, as I do like to use where lists of facts are available. Whilst it contains some opinion, about widening of interpretation, my view is that, that is what happened due to non-legislative revision of interpretation and what in any other context would be called “industry norms”

“BACKGROUND INFORMATION

Dutch Penal Code Articles 293 and 294 make both euthanasia and assisted suicide illegal, even today. However, as the result of various court cases, doctors who directly kill patients or help patients kill themselves will not be prosecuted as long as they follow certain guidelines. In addition to the current requirements that physicians report every euthanasia/assisted-suicide death to the local prosecutor and that the patient’s death request must be enduring (carefully considered and requested on more than one occasion), the Rotterdam court in 1981 established the following guidelines:

1. The patient must be experiencing unbearable pain. 2. The patient must be conscious. 3. The death request must be voluntary. 4. The patient must have been given alternatives to euthanasia and time to consider these alternatives. 5. There must be no other reasonable solutions to the problem. 6. The patient’s death cannot inflict unnecessary suffering on others. 7. There must be more than one person involved in the euthanasia decision. 8. Only a doctor can euthanize a patient. 9. Great care must be taken in actually making the death decision. (1)

Since 1981, these guidelines have been interpreted by the Dutch courts and Royal Dutch Medical Association (KNMG) in ever-broadening terms. One example is the interpretation of the “unbearable pain” requirement reflected in the Hague Court of Appeal’s 1986 decision. The court ruled that the pain guideline was not limited to physical pain, and that “psychic suffering” or “the potential disfigurement of personality” could also be grounds for euthanasia. (2)

The main argument in favor of euthanasia in Holland has always been the need for more patient autonomy — that patients have the right to make their own end-of-life decisions. Yet, over the past 20 years, Dutch euthanasia practice has ultimately given doctors, not patients, more and more power. The question of whether a patient should live or die is often decided exclusively by a doctor or a team of physicians.(3)

The Dutch define “euthanasia” in a very limited way: “Euthanasia is understood [as] an action which aims at taking the life of anotherat the latter’s expressed request. It concerns an action of which death is the purpose and the result.” (4) (Emphasis added.) This definition applies only to voluntary euthanasia and excludes what the rest of the world refers to as non-voluntary or involuntaryeuthanasia, the killing of a patient without the patient’s knowledge or consent. The Dutch call this “life-terminating treatment.”

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Some physicians use this distinction between “euthanasia” and “life-terminating treatment” to avoid having a patient’s death classified as “euthanasia,” thus freeing doctors from following the established euthanasia guidelines and reporting the death to local authorities. One such example was discussed during the December 1990 Institute for Bioethics conference in Maastricht, Holland. A physician from The Netherlands Cancer Institute told of approximately 30 cases a year where doctors ended patients’ lives after the patients intentionally had been put into a coma by means of a morphine injection. The Cancer Institute physician then stated that these deaths were not considered “euthanasia” because they were not voluntary, and that to have discussed the plan to end these patients’ lives with the patients would have been “rude” since they all knew they had incurable conditions. (5)

For the sake of clarity in this fact sheet, the direct and intentional termination of a patient’s life, performed without the patient’s consent, will be termed “involuntary euthanasia.”

See http://www.patientsrightscouncil.org/site/holland-background/

FAILURES OF THE DUTCH MODEL

2. Notwithstanding all of the alleged safeguards in the Dutch model, the Dutch model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

(a) In the words of the Honorable Ray Groom, Former Premier of Tasmania and Chairman of Southern Cross Care, In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Aged care - protecting the vulnerable”, where the former Premier of Tasmania said

An illustration of the leniency of the system in the Netherlands can be seen in the 2001 prosecution of Dutch GP Dr Wilfred van Oijen. The evidence in that case shows that Dr van Oijen administered a lethal injection to his 84 year old comatose patient at the urging of her family even though the patient had made no request for euthanasia.

Dr van Oijen was convicted of murder but the Court declined to impose any punishment except a suspended fine for falsely reporting the patient's death as natural. The doctor had failed to obtain a second medical opinion. The Court considered the doctor's conduct to be "an error of judgement". Dr van Oijen faced a medical disciplinary board but received only a warning and was able to continue to practice medicine.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 182

(b) This case example is extracted from the article “Dutch euthanasia law is used to kill alcoholic, 41, who decided death was the only way to escape his problems” By Steve Doughty Social Affairs Correspondent For The Daily Mail Published: 13:06 +11:00, 29 November 2016 | Updated: 22:41 +11:00, 29 November 2016 and I commend it to you:

A 41-year-old man has ended his life by fatal injection rather than carry on living as an alcoholic, in a radical new extension of Holland’s euthanasia regime. Mark Langedijk decided that death was the only way to escape from his addiction to drink, according to an account published by his brother. ‘I was particularly angry at Mark. At first we did what most people do: help. ‘My parents especially have done everything humanly possible to save Mark. They adopted his two children, they took him in when his marriage finally collapsed, they helped him find accommodation, they arranged rehab, they gave him money, support and unconditional love. ‘Through eight gruelling years and 21 hospital and rehab admissions they continued to believe in a happy ending.’ But, Marcel Langedijk said, his brother began drinking again after every attempt at rehabilitation. Eventually, Mark decided, nothing could be done, and the best solution would be to die. ‘We took it with a grain of salt,’ Marcel Langedijk said. ‘Euthanasia was for people with cancer, people suffering unbearably, people for whom death was imminent. Euthanasia was certainly not for alcoholics.’ He said his brother told his GP: ‘I want to die, enough is enough.’ As evidence that his life was unbearable, he kept a diary, which Marcel Langedijk said presents ‘a hopeless cocktail of pain, drink, loneliness and sorrow.’ Mark Langedijk’s application for euthanasia, he said, was approved by a doctor from Support and Consultation on Euthasia in the Netherlands, the medical body set up to provide expertise on euthanasia. Marcel Langedijk said his brother set a date for his death – 14 July – and described it as a ‘nice day to die’. … Marcel Langedik’s article described how the doctor explained the injection procedure and told his brother to lie in bed and stay calm. She told him there would be a dose of a saline solution, and then a sleep-inducing drug, and then and injection to stop his heart. It said: ‘I started crying, my parents, everyone, even Mark.’ … The doctor, he said, told his brother to ‘take it easy’ and asked: ‘Are you sure 100 per cent you want this?’ She then administered the injections.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 183

British MPs said the account of Mr Langedijk’s death was evidence of the ‘slippery slope’ effect in which euthanasia, once legalised, can be spread to wider and wider groups of people. Fiona Bruce, Tory MP for Congleton and co-chairman of the All Party Parliamentary Pro-Life Group, said: This news is deeply concerning and yet another reason why assisted suicide and euthanasia must never be introduced into the UK. ‘What someone suffering from alcoholism needs is support and treatment to get better from their addiction – which can be provided – not to be euthanised. ‘It is once again a troubling sign of how legalised euthanasia undermines in other countries the treatment and help the most vulnerable should receive.’ Robert Flello, Labour MP for Stoke-on-Trent South, said: ‘Yet again Holland demonstrates it is a dangerous place to have any physical or mental illness, to be struggling with any life challenges, or just to differ from what they might call normal. ‘The state-authorised killing of their citizens is out of control and is, quite frankly, terrifying.’ 4. To avoid allegation that there are only isolated cases of abuse and that the claim is not systemic, such as Dr Rodney Symes of Dying with Dignity Victoria would like people to believe, I have also concentrated on comments which speak about the widespread abuse of euthanasia legislation and permissions in Holland. From the Hospice Patitence’s Alliance, I located the following material, seen at http://www.hospicepatients.org/euth- experts-speak.html

(a) Carlos Gomez, MD, Ph.D., wrote in his book, Regulating Death - Euthanasia and the case of the Netherlands, the following:

p. 138: "...I remain unconvinced that under current regulations the practice [of euthanasia] is not abused. those in the United States who point to the Netherlands as a public policy model for assistance with suicide have not, I would suggest, looked carefully enough. If the Netherlands - with its generous social services and universal health coverage - has problems controlling euthansasia, it takes little effort to imagine what would happen in the United States, with a medical system groaning under the strain of too many demands on too few resources."

(b) Herbert Hendin, MD, Executive Director of the American Suicide Foundation and Professor of Psychiatry at New York Medical College has written the following in his authoritative analysis of euthanasia in the Netherlands: Seduced By Death - Doctors, Patients and the Dutch Cure:

"The doctors who help set Dutch euthanasia policies are aware that euthanasia is basically out of control in the Netherlands. They admitted this to me privately. Yet in their public statements and articles they maintain there are no serious problems...." p. 14 "The experience of the Dutch people makes it clear that legalization of assisted suicide and euthanasia is not the answer to the problems of people who are terminally ill. The Netherlands has moved from assisted suicide to euthanasia, from euthanasia for people

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who are terminally ill to euthanasia for those who are chronically ill, from euthanasia for physical illneses to euthanasai for psychological distress, and from voluntary euthanasia to involuntary euthanasia (called "termination of the patient without explicit request"). The Dutch government's own commissioned research has documented that in more than one thousand cases a year, doctors actively cause or hasten death without the patient's request." p. 23 "Virtually every guideline established by the Dutch to regulate euthanasia has been modified or violated with impunity." [emphasis added] p. 23 "In the selling of assisted suicide and euthanasia, words like "empowerment" and "dignity" are associated only with the choice for dying. But who is being empowered? The more one knows about individual cases, the more apparent it becomes that needs other than those of the patient often prevail. Empowerment flows toward the relatives, the doctor who offers a speedy way out if he cannot offer a cure, or the activists who have found in death a cause the gives meaning to their own lives. The patient, who may have asked to die in the hope of receiving emotional reasusurance that all around her want her to live, may find that like Louise she has set in motion a process whose momentum she cannot control. p. 43-44 "Euthanasia advocates are arguing that if there are ten cases in which euthanasia might be appropriate, we should legalize a practice that may wrongly kill thousands." p. 44 " The alarming statistics in the Remmelink Report indicate that in thousands of cases, decisions that might or were intended to end a fully competent patient's life were made without consulting the patient." p. 77 "The Dutch seem reluctant to acknowledge that the doctor's role in euthanasia is more than that of a neutral observer responding to a patient's needs. This is particularly evident when families pressure patients to request euthanasia .... more requests for euthanasia came from families than from patients themselves." [emphasis added] p. 93

(c) Speaking about how doctors make decisions to implement euthanasia, even when the patient does not request it himself,

"The Dutch courts have implicitly encouraged physicians to make such value decisions. Originally the courts interpreted force majeure as applying if virtually anyone in the doctor's situation would have acted as he did, essentially saying that basic human decency and compassion compelled such action. Subsequently the courts have interepreted it as applying if merely any other member of the medical profession would have acted as did the doctor, which is quite a different standard. Jos Welie, an ethicist formerly at the University of Nijmegen, points out that this ruling elevates physicians to a superior moral status, making their judgments on life and death always just." [emphasis added] p. 94 That is an extremely relevant observation, when considering so-called safeguards some suggest to put in place to prevent abuse of euthanasia and/or physician assisted suicide. A physician advocate of euthanasia, when working with a prospective euthanasia candidate, could refer the patient to a known physician supporter of euthanasia for a second opinion, and both being advocates of euthanasia, would of course come to the conclusion that euthanasia was appropriate, even if many other physicians would strongly disagree. This type of reasoning has resulted in the medical killings of depressed patients, chronically ill and others.

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"Dr. Richard Fenigsen, ... was a strong critic of involuntary euthanasia, which he considers to be widespread. [in the Netherlands] ...his contentions concerning the prevalence of involuntary euthanasia, ... were supported by the Remmelink Report." p. 100 "Chris Rutenfrans, a strong secular critic of euthanasia in the Netherlands, has a doctorate in law and criminology. Together with Caterina Dessaur, writer and professor of criminology at the University of Nijmegen, he had written a book suggesting the ambivalence of most requests for euthanasia, stressing the coercion of the patient that often accompanied the decision to perform it, and indicating how frequently it took place without the consent of patients." [emphasis added] p. 106

(d) In affirmation that palliative care is the best option, this hospice patients’s alliance says as follows:;

Excellent palliative care provided in hospice settings, either in the home or a facility is the preferred and truly compassionate way to provide a death with dignity. Pain relief modalities must be taught more in medical and nursing schools and put into practice using the latest medications and treatments for pain and relief of other distressing symptoms.

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Annexure 40.: The Quebec Model and its Failures THE QUEBEC MODEL

1. The Quebec euthanasia law was sponsored by a politician, Véronique Hivon who has the ministry, ironically, of Minister for Social Services and Youth Protection.

2. The euthanasia mode is set out in Bill 52 known as An Act respecting end-of-life care which has been adopted in Quebec has the following overarching principles, - choice being the fundamental, which is what the majority of the Committee in Victoria also chose as defining dignity – without considering implications or giving reasons:

2. The provision of end-of-life care is to be guided by the following principles:

(1) respect for end-of-life patients and recognition of their rights and freedoms must inspire every act performed in their regard;

(2) end-of-life patients must be treated, at all times, with understanding, compassion, courtesy and fairness, and with respect for their dignity, autonomy, needs and safety; and

3. Bill 52 has the following structure:

DIVISION I

TERMINAL PALLIATIVE SEDATION

25. Before giving consent to terminal palliative sedation, a patient who wishes to receive such sedation or, where applicable, the individual authorized to consent to care on behalf of the patient, must among other things be informed of the prognosis, the irreversible and terminal nature of the sedation and the anticipated duration of the sedation.

Consent to terminal palliative sedation must be in writing and filed in the patient’s record.

DIVISION II

MEDICAL AID IN DYING

26. Only a patient who meets the following criteria may obtain medical aid in dying:

(1) be of full age, be capable of giving consent to care and be an insured person within the meaning of the Health Insurance Act (chapter A-29);

(2) suffer from an incurable serious illness;

(3) suffer from an advanced state of irreversible decline in capability; and

(4) suffer from constant and unbearable physical or psychological pain which cannot be relieved in a manner the person deems tolerable.

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The patient must request medical aid in dying themselves, in a free and informed manner, by means of the form prescribed by the Minister. The form must be dated and signed by the patient or, if the patient is physically incapable of doing so, by a third person. The third person may not be a minor or an incapable person of full age or a member of the team responsible for caring for the patient.

The form must be signed in the presence of a health or social services professional who countersigns it; if the professional countersigning is not the attending physician, the signed form is given to the attending physician.

27. A patient may, at any time and by any means, withdraw their request for medical aid in dying.

28. Before administering medical aid in dying, the physician must

(1) be of the opinion that the patient meets the criteria of section 26, after, among other things,

(a) making sure that the request is being made freely and without any external pressure;

(b) making sure that the request is an informed one, in particular by informing the patient of the prognostic and of other therapeutic possibilities and their consequences;

(c) verifying the persistence of suffering and that the wish to obtain medical aid in dying remains unchanged, by talking to the patient at reasonably spaced intervals given progress of the patient’s condition;

(d) discussing the patient’s request with any members of the care team who are in regular contact with the patient; and

(e) discussing the patient’s request with the patient’s close relations, if the patient so wishes;

(2) make sure that the patient has had the opportunity to discuss the request with the persons they wished to contact; and 12

(3) obtain the opinion of a second physician confirming that the criteria set out in section 26 have been met.

The physician consulted must be independent of both the patient requesting medical aid in dying and the physician seeking the second medical opinion. The physician consulted must consult the patient’s record, examine the patient and provide the opinion in writing.

29. If a physician determines, subsequent to the application of section 28, that medical aid in dying may be administered to a patient requesting it, the physician must administer such aid personally and take care of the patient until their death. If the physician determines that medical aid in dying cannot be administered, the physician must inform the patient of the reasons for that decision.

30. A physician practising in a centre operated by an institution who refuses a request for medical aid in dying for a reason not based on section 28 must as soon as possible notify the director of professional services or any other person designated by the executive director of the institution and forward the request form given to the physician, if such is the case, to the director of professional services or designated person. The director of professional services or designated person must then take the necessary steps to find another physician willing to deal with the request in accordance with section 28.

If the physician who receives the request practises in a private health facility and is not associated with a local authority for the administration of medical aid in dying, the physician must as soon as possible notify

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the director of professional services or any other person designated by the executive director of the local authority, and forward the request form given to the physician, if such is the case, to the director of professional services or designated person. The steps mentioned in the first paragraph must then be taken.

31. All information and documents in connection with a request for medical aid in dying, regardless of whether the physician administers it or not, including the form used to request such aid, the reasons for the physician’s decision and, where applicable, the opinion of the physician consulted, must be recorded or filed in the patient’s record.

DIVISION I

ESTABLISHMENT AND FUNCTIONING OF THE COMMISSION

35. A commission on end-of-life care (“the Commission”) is established under the name “Commission sur les soins de fin de vie”.

36. The Commission is composed of seven members, appointed by the Government as follows:

(1) four members are to be health or social services professionals, including at least two physicians, appointed after consultation with the professional orders concerned;

(2) one member is to be a jurist, appointed after consultation with the professional orders concerned;

(3) one member is to be a user of an institution, appointed after consultation with bodies representing the users’ committees of the institutions; and

(4) one member is to be from the ethics community, appointed after consultation with university-level teaching institutions.

The members of the Commission are appointed for a term of not more than five years. Their terms of office may be renewed consecutively only once. At the expiry of their terms, members remain in office until they are replaced or re-appointed. The Government designates, from among the members of the Commission, a chair and vice-chair; the vice-chair shall chair the Commission when the chair is absent or unable to act. The Government fixes the allowances and indemnities of the members of the Commission.

37. The Commission may make by-laws concerning its internal management.

38. The quorum at meetings of the Commission is five members, including the chair or the vice-chair. Subject to the second paragraph of section 42, the decisions of the Commission are made by a majority vote of the members present. In the case of a tie vote, the person presiding at the meeting has a casting vote.

DIVISION II

MANDATE OF THE COMMISSION

…

41. A physician who administers medical aid in dying must give notice to the Commission within the next 10 days and send the Commission, in the manner determined by government regulation, the information prescribed by regulation. This information is confidential and may not be disclosed to any other person, except to the extent that is necessary for the purposes of this section and section 42. A physician who contravenes this section is guilty of an offence and is liable to a fine of $1,000 to $10,000.

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42. On receiving the notice from the physician, the Commission assesses compliance with section 28 in accordance with the procedure prescribed by government regulation. On completion of the assessment, if two-thirds or more of the members present are of the opinion that section 28 was not complied with, the Commission sends a summary of its conclusions to the physician, to the institution concerned, to the Collège des médecins du Québec and to any other authority concerned.

FAILURES OF THE QUEBEC MODEL

4. Notwithstanding all of the alleged safeguards in the Quebec model, the Quebec model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

5. Of the many failures I have been able to locate or otherwise agree with where they are in the Final Report’s minority reports, I include them below. Where the incident has been included in a Minority report to the Final report, I include it here as not everyone who reads this report of mine will read the Minority Reports – this is just an unfortunate reality of people being time poor and having good intentions to do further research but never being able have the time do to that research. In all reality also, as time goes by, the minority reports may become harder and harder to find.

(a) Quebec, Canada, 21 non-compliances with the law. see Euthanasia Prevention Coalition Newsletter Number 179: November 2016. Naturally, I hold the view that each of the 21 non-compliances should be considered to be unlawful and therefore for should be considered to be MURDER.

The Globe and Mail reported that, of the 262 deaths, 21 failed to meet the legal requirements of the law:

The report found that of the cases it examined, 21 failed to meet the legal restrictions.

The vast majority of those—18—involved questions about the independence of the second doctor who is required to sign off on the assisted death. Mr. Barrette said the problem often arises in smaller communities where doctors know one another.

Of the remaining three cases, two were instances in which assisted death was administered without proving the patient was at the end of life. In one case, it wasn’t proven that the patient was facing a serious and incurable illness, as required under the law.

All 21 cases have been referred to Québec’s College of Physicians, which will review them, a spokeswoman said.

There were 262 reported euthanasia deaths in the first 7 months of the euthanasia law. Since the Québec law is based on the Belgian law and since nearly half of the assisted deaths in Belgium are not reported, we wonder how many euthanasia deaths have actually occurred in Québec?

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 190

Annexure 41.: The English speaking Canadian Model and its Failures THE ENGLISH SPEAKING CANADIAN MODEL

1. The euthanasia model which has been adopted in English Speaking Canada known as Bill C-14 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying) has the following features – not all provisions included:

Exemption for medical assistance in dying 227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide a person with medical assistance in dying in accordance with section 241.2. Exemption for person aiding practitioner (2) No person is a party to culpable homicide if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2. Reasonable but mistaken belief (3) For greater certainty, the exemption set out in subsection (1) or (2) applies even if the person invoking it has a reasonable but mistaken belief about any fact that is an element of the exemption. Exemption for medical assistance in dying (2) No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if they provide a person with medical assistance in dying in accordance with section 241.2. Exemption for person aiding practitioner (3) No person is a party to an offence under paragraph (1)(b) if they do anything for the purpose of aiding a medical practitioner or nurse practitioner to provide a person with medical assistance in dying in accordance with section 241.2. Exemption for pharmacist (4) No pharmacist who dispenses a substance to a person other than a medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if the pharmacist dispenses the substance further to a prescription that is written by such a practitioner in providing medical assistance in dying in accordance with section 241.2. Definitions 241.1 The following definitions apply in this section and in sections 241.2 to 241.4. medical assistance in dying means (a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or (b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death. (aide médicale à mourir)

Eligibility for medical assistance in dying 241.2 (1) A person may receive medical assistance in dying only if they meet all of the following criteria: (a) they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada; (b) they are at least 18 years of age and capable of making decisions with respect to their health; (c) they have a grievous and irremediable medical condition; (d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and (e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care. Grievous and irremediable medical condition (2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria: (a) they have a serious and incurable illness, disease or disability;

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 191

(b) they are in an advanced state of irreversible decline in capability; (c) that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and (d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining. Safeguards (3) Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must (a) be of the opinion that the person meets all of the criteria set out in subsection (1); (b) ensure that the person’s request for medical assistance in dying was (i) made in writing and signed and dated by the person or by another person under subsection (4), and (ii) signed and dated after the person was informed by a medical practitioner or nurse practitioner that the person has a grievous and irremediable medical condition; (c) be satisfied that the request was signed and dated by the person — or by another person under subsection (4) — before two independent witnesses who then also signed and dated the request; (d) ensure that the person has been informed that they may, at any time and in any manner, withdraw their request; (e) ensure that another medical practitioner or nurse practitioner has provided a written opinion confirming that the person meets all of the criteria set out in subsection (1); (f) be satisfied that they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are independent; (g) ensure that there are at least 10 clear days between the day on which the request was signed by or on behalf of the person and the day on which the medical assistance in dying is provided or — if they and the other medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the person’s death, or the loss of their capacity to provide informed consent, is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances; (h) immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying;and Independent witness (5) Any person who is at least 18 years of age and who understands the nature of the request for medical assistance in dying may act as an independent witness, except if they (a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person’s death; (b) are an owner or operator of any health care facility at which the person making the request is being treatedor any facility in which that person resides; (c) are directly involved in providing health care services to the person making the request; or (d) directly provide personal care to the person making the request. Informing pharmacist (8) The medical practitioner or nurse practitioner who, in providing medical assistance in dying, prescribes or obtains a substance for that purpose must, before any pharmacist dispenses the substance, inform the pharmacist that the substance is intended for that purpose. FAILURES OF THE ENGLISH SPEAKING CANADIAN MODEL

2. Notwithstanding all of the alleged safeguards in the English Speaking Canadian model, the English Speaking Canadian model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 192

(a) An elderly woman in British Columbia, Canada, may have been euthanaised when she only had a bladder infection, the doctor elected to waive the recommended 10 day cooling off period and killed her instead, see Euthanasia Prevention Coalition Newsletter December 2016.

My Aunt…was just euthanized today Nov 9, 2016 by lethal injection at…Retirement Home…in BC. We were called to a meeting at...Hospice on Nov 7, 2016 to be told for the first time that our...Aunt had requested to be euthanized. We were told it would take at least 10 days. My sister and I argued that our Aunt appears to only have a severe bladder infection. The Hospice Doctor said he would look into having her urine tested for this before they proceed with euthanasia.

The same day we were sent over to our Aunt’s apartment to witness the doctor (that is going to give our Aunt the lethal injection) having our Aunt sign the document to give her the permission to do the euthanasia. After the Doctor read out the document to my aunt, the doctor went and got a woman that works in the kitchen to initial all the questions for My Aunt. The Doctor brought two people to be witnesses into the room that had been witnesses for other euthanizations.

When we mentioned the urine tests we had asked to be done, the euthanizing Doctor said it would make no difference because my Aunt has already signed permission for her euthanasia. The euthanizing Doctor said she is going to put a rush on the euthanasia. To my even more shock the Doctor gave My Aunt the lethal injection today. It all took less than three days from start to finish. The Doctor did the three doctor visits to my Aunt in three consecutive days. I am so upset.

(b) There is pressure in English speaking Canada to allow the life ending drugs to be administered by nurses, who are not doctors. This appears (to me at least) to be motivated by nurses wanting to be seen as professionally on par and not less than doctors. Some may even say that by giving themselves more powers and authority and a larger scope of services they can provide, nurses are trying to ensure that they are indispensable to the health services industry by being lawfully entitled and professionally qualified to dispense lethal drugs.

I see a problem with regulating drugs through a greater number of people, namely nurses, who see this killing of people as no more significance than taking a patient’s temperature or bandaging a scratched knee. They will not care about the coercion and abuse that leads up to the final act of the patient killing themselves.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 193

Doris Grinspun, CEO of the Registered Nurses’ Association of Ontario, said the organization had pushed for the inclusion of nurse practitioners – registered nurses who have an additional two years of training that broadens their scope of practice.

“Nurse practitioners are primary-care providers for thousands of people in Ontario and, quite frankly, across the country,” said Grinspun.

He notes that the highly trained nurses care for patients in hospitals, primary-care settings, within the home and also in long-term care facilities.

In Ontario, nurse practitioners also have the legislative authority to admit, treat, transfer and discharge patients from hospital, she said.

See “Nurse practitioners would provide assisted death under new legislation” 14 April 2016 By Sheryl Ubelacker The Canadian Press medically assisted death to eligible patients under proposed legislation tabled Thursday

(c) According to the Euthanasic Prevention Coalition, in Canada, not even conscious rights are safe against those who seek to compel doctors to perform or refer to other doctors patients who seek to be killed.

Ontario physicians who oppose assisted suicide are fighting for their Con science rights

The Coalition for Health CARE and Conscience is seeking a judicial review of the College of Physicians and Surgeons of Ontario (CPSO) policy requiring physicians who oppose euthanasia and assisted suicide, to refer patients to a physician who will kill.

According to the Coalition:

The College of Physicians and Surgeons of Ontario (CPSO) demands that doctors who conscientiously object to assisted suicide refer patients seeking to end their lives to other physicians who will provide the procedure.

No other foreign jurisdiction that has legalized assisted suicide requires doctors to perform or refer for this procedure. Other provinces have already implemented guidelines to protect doctors who object to providing or referring for assisted suicide.

Larry Worthen, the executive director of the Christian Medical and Dental Society of Canada, and one of the

Coalition members stated:

The current approach of the CPSO demands that doctors set aside their morals and go against their conscience to directly refer for assisted suicide, In our view, effective referral and participating in assisted suicide are morally and ethically the same thing.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 194

Annexure 42.: The Belgian Model and its Failures THE BELGIAN MODEL

1. The euthanasia model which has been adopted in Belgian has the following features as described in the “Australian Human Rights Commission Euthanasia, human rights and the law Issues paper dated May 2016”

Belgium became the second EU country to legalise euthanasia with the enactment of the Belgium Act on Euthanasia (28 May 2002). News reports describe the Act as allowing adults who are in a ‘futile medical condition of constant and unbearable physical or mental suffering that cannot be alleviated’ to request voluntary euthanasia. Doctors who practise euthanasia commit no offence if prescribed conditions and procedures have been followed (the patient has legal capacity; the request is made voluntarily and repeatedly with no external pressure and the patient’s medical state is hopeless with constant, unbearable pain or mental suffering which cannot be relieved). The Act does not cover assisted suicide only doctor-administered assisted dying) although the Belgian federal oversight body, Commission Federale de Controle et Evaluation acknowledges that some cases of self-administered assisted dying are covered by the law. Similar to the Netherlands, a patient can request doctor-administered assisted dying through an advance directive. In May 2014, Belgium became the first country in the world to allow children access to euthanasia.

FAILURES OF THE BELGIAN MODEL

2. Notwithstanding all of the alleged safeguards in the Belgian model, the Belgian model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

3. The Final Report prepared by the Majority simply ignored the following problems, thus, I will need to set them out clearly.

Another good example of failure to protect the vulnerable when a euthanasia law is passed can be found in the following example from Belgium. A doctor admitted to ending the life of his 87 year old patient who had dementia. Dr Marc Cosyns published an article describing how he ended his patient's life because he wanted to encourage the extension of the euthanasia law to patients suffering from dementia (Belgian Medical Magazine "Huisarts" 9 February 2006). A proposal to extend euthanasia to dementia sufferers has been introduced into the Belgian Senate and the Chamber of Representatives.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 195

(b) In 2017, I emailed Ms Carine Brochier, Project Manager, European Institute for Bioethics Brussels, Belgium, who is one of the many people in Belgium who should have been interviewed in person by Majority before speaking about there being “no evidence” of slippery slope in Belgium. I was provided with a copy of the Affidavit of Professor Etienne Montero, Dean of the Faculty of Law, at the University of Namur, Belgium, who was retained by the Attorney General of Canada. I attach this affidavit in full and I commend it to you. I could not write something as learned and from first hand experience as my learned colleague Professor Montero has written. This is the evidence that the majority of the Committee willfully excluded.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 196

Annexure 43.: The Swiss Model and its Failures The Swiss Model

1. The euthanasia model which has been adopted in Swiss has the following features – for the sake of time limits to produce this report, I have relied on the material provided in the Majority report for the requirements for how Dignatas is expected to work:

## Characteristic Swiss Model 1 Legislation name Articles 114 and 115 of the Swiss Criminal Code 2 Legislation commencement 1942 3 Legislation procurement Parliament Death type Assisted suicide and voluntary euthanasia Voluntary euthanasia is illegal in Switzerland, however a less severe penalty is imposed compared to other homicides. The Swiss penal code contains a long-standing provision that prohibits assisted suicide unless it is provided ‘without 4 selfish motives’ Minimum age Not expressly prohibited, however ‘capacity’ becomes an 5 issue. No documented cases of assisted suicide for minors 6 Proximity to likely natural death Terminal illness not a requirement Eligibility criteria Must have a ‘well documented’ illness and have tried every treatment Death not an issue Pain not a issue

Not stated, however DIGNITAS believes as a general rule that people with mental health issues are entitled to ask for and receive assistance for suicide as much as people suffering for physical health issues

Assisted suicide must not be administered for ‘selfish 7 motives’ Who forms medical opinion of The good folks at DIGNITAS 8 eligibility What happens if patient is considered The good folks at DIGNITAS 9 not eligible Provision of information about Not required 10 alternatives 11 Supervising body name The good folks at DIGNITAS 12 Supervising body type The good folks at DIGNITAS 13 Reporting to Parliament Government investigates post death only 14 Who provides the poison The good folks at DIGNITAS 15 Who collects the poison The good folks at DIGNITAS 16 Who prepares the poison The good folks at DIGNITAS 17 Who returns the unused poison The good folks at DIGNITAS 18 Who watches the person die The good folks at DIGNITAS 19 Who injects the poison The good folks at DIGNITAS 20 Who reports the death The State investigates every assisted suicide 21 Who is the death reported to The state 22 When is a death reportable Each death – allegedly.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 197

23 How long is the cooling off period? None Churn them out. 24 How does the patient make a request? Little formality. 25 How is the patient’s request recorded. Little formality. 26 How many requests must be made Little formality. 27 What is the period between requests Little formality. 28 What criminality is on the doctor None if not done for selfish motives. Major modifications to the law None, is already at the bottom of the slippery slope since 29 1942 30 Insurance NO issue – lots a non swiss. 31 Notice to next of kin Not required FAILURES OF THE SWISS MODEL

2. Notwithstanding all of the alleged safeguards in the Swiss model, the Swiss model has not been 100% failure free. This model of Government sponsored legalized killing, which is so highly praised by the Majority of the Committee is simply not suitable for use in Australia – or anywhere.

(a) In his submission to the Joint Standing Committee on Community Development Inquiry Into The Dying With Dignity Bill 2009 (Tasmania) Professor Ray Lowenthal AO wrote:

Evidence of the manner in which euthanasia laws no matter how well crafted can be abused can be shown by many examples. A recent study of the Swiss system has revealed that 20% of the British who made use of 'suicide tourism' and died in the Dignitas Clinic in Zurich were not suffering from a terminal illness at all. In the NT many of the patients who sought euthanasia were shown to be lonely and depressed, even though they may have been given the required certificate to indicate that their mental health was adequate. The Dutch system remains of especial concern, it being freely admitted that non-voluntary euthanasia (the killing of ill and demented patients by their doctors without the explicit request and permission of the patients) indeed takes place.

4. Time to prepare this report does not permit me to further detail non-compliances with this euthanasia legislation in Switzerland. That said, I have formed the view that the lack of obligation to report will avoid non-compliance as there where there is no law, there is no breach of the law. As a general rule, I see fundamental problems with Switzerland in that the protection of no self-interest is only as good as the enforcement of this obligation.

5. Will the police care of an 85 year old being taken advantage of? Evidence from the Parliament of Victoria says no one will care and no jail will be given for non-compliance.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 198

Annexure 44.: Correcting “Misinformation”: Do Doctors kill (incl. babies)? TO KILL OR NOT TO KILL BABIES. IS IT REALLY HAPPENING? THAT IS THE QUESTION

1. This annexure 16 Victorian Inquiry Part 8: Correcting “Misinformation”: Do Doctors kill (incl. babies), along with annexure 15 have been the two most difficult annexures in this whole letter to research, consider and write about. My task in writing about this issue has been made more difficult because:

(a) I believe in being fair to both sides of the argument;

(b) I want to be accurate as this annexure would not be helpful if I am not;

(c) I want to be accurate as this annexure will be highly criticized if I am not, and, like Professor Margaret Somerville by Mr Neil Francis before me, the slightest inaccuracy will be seized upon by the pro-euthanasia lobby to attack the whole of what I say; and

(d) There is a lot of competing data out there in the internet which is usually bias, even if the numbers are not, the interpretation and the conclusions that people are asked to draw from the data are bias – both sides are guilty of this.

Greater Research Gives Greater Accuracy

2. This is one area of this letter I would love to do more research on, if time permitted me to do so. I consider it a very important topic to really get to the finite detail of, and know and disseminate accurate information about.

3. In this annexure, I am forced have a professional detachment from my own anti-euthanasia position/ stance that I may take an objective assessment of the evidence put to me (by what I can and what I would like to find but cannot). I will also give reasons for my conclusions, so that even if I am ultimately wrong, people who read this annexure can see the basis upon which I have formed my opinion and hopefully put me in touch with any information that may correct my opinion.

4. At the end of the day, there is insufficient evidence put before me to make a definitive conclusion about the nature and extent to which doctors in Europe, and most contentiously, in the Netherlands under the Groningen Protocol, are practicing infanticide.

My Judicial Approach (from someone who does not sit on the bench of any court or tribunal)

5. Like any judge who delivers a judgement, I must adopt the following structure to this annexure:

(a) What are the claims and the counter claims;

(b) The evidence and submissions of the claimant (those accusing)

(d) My evaluation of the submissions of the claimant and the respondent;

(e) Conclusions.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 199

6. Like any judge who delivers a judgement, I must appeal to authority and extract of evidence. For this reason, and out of fairness to both sides, I must include a substantial amount of text that the reader may understand my reasons and conclusions. This will be balanced with the need for brevity but where there is a conflict between the two, the provision of additional information in this annexure shall prevail.

What are the claims and the counter claims?

7. The claims made by the claimant, a general term I shall use to include all those who oppose non-voluntary euthanasia in the form of infanticide, appear to me to be twofold:

(a) Firstly and more generally, that under the Groningen Protocol in the Netherlands, babies are being killed; and

(b) Secondly and more specifically, that under the same protocol, that there has been some 550 babies killed in the Netherlands. It is unclear if the allegation is that the number of 550 were killed in 2014 or if the number is 550 since the Groningen Protocol was first developed in 2004, published in 2005 and given legal backing in 2007. Nonetheless, the number of 550 has been raised and is the number we must work with.

8. The history and content of this accusation appears to me to be well understood by both parties. The facts appear to be as follows:

(a) In or about 2014, a posting appeared on a website Lifenews.com

(b) On 9 November 2015, Mr Luke Formosa (Mr Formosa), was an audience member on an Australian television program called Q and A (which it is understood stands for Question and Answer) (9 Nov QA Episode) and he asked the question about 550 babies being killed in words to the following effect:

Mr Formosa said “Findings from the Netherlands euthanasia report in 2014 indicate 550 newborn babies with diseases or disabilities were killed. My question is how you propose Australian laws which protect the vulnerable when examples in Belgium and the Netherlands showing the exact opposite?

9. No evidence has been put to me as to Mr Formosa’s background, allegiances, political or religious persuasions. I therefore cannot find any reason to suspect him of making an falsehood and I make no comment as to his character to make false claims. I also do not know if Mr Formosa was a “plant”, asking a question which Mr Denton was wanting to talk about and the question was convenient for him to push his agenda to support euthanasia. I just do not know.

10. The claims made by the respondent, a general term I shall use to include all those who support non-voluntary euthanasia in the form of infanticide, likewise appear to me to be twofold:

(a) Firstly and more generally, that under the Groningen Protocol in the Netherlands, very few babies are being killed; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 200

(b) Secondly and more specifically, that under the same protocol, that the allegation of 550 babies being killed in the Netherlands is simply false.

The Evidence and Submissions of the Claimant (those accusing)

11. As to the first part of the claimant’s accusation, that some babies have been killed under the Groningen Protocol, in the absolute sense, this is neither contentious, that is, it is not in dispute. The reason is that both sides agree that at least one baby, which under the Groningen Protocol is a person who is less than one (1) year of age, has died. For the reason that this allegation is made out, by the admission of the respondent, I shall not spend any further time on this part of the claimant’s claim. I will instead consider the number of 550 babies.

12. As to the second aspect of the Claimant’s accusation, namely, that 550 babies have been killed:

(a) Mr Formosa, it is well documented, was not able to find any supporting evidence for the fact of 550 babies being killed about which he questioned the panel on the 9 Nov QA Episode in his question.

(b) In further comment, online it appears, Mr Formosa, did make follow up comments by saying:

“it is also impossible to know for sure how many cases have been unreported”.

From this comment, it appears that Mr Formosa’s position appears to be based on reported and unreported cases of infanticide.

(b) I have made my own enquiries, and, I have likewise not been able to find any evidence.

13. I have not had the opportunity to directly enquire with the publishers of the assertion, that is, Lifenews.com.

The Evidence and Submissions of the Respondent (Those Asserting that the Accusations are False)

14. On the evening of the 9 Nov QA Episode, Mr Formosa’s question was directed by the host to Mr Andrew Denton. Mr Denton replied as follows:

Mr Denton said “I completely dispute and question your assertion that 550 babies have been killed. I don't know where you got that figure of 550 from... Five hundred and fifty newborn babies euthanized in one year? Officially documented? If not true, this was a mighty seed of FUD sown in front of a viewing audience of a million people.

Mr Denton said “That the rise in those numbers is because, like ours, this is an ageing population and a lot are reflected in cancer deaths. I completely dispute and question your assertion that 550 babies have been killed. Under Dutch law, there is a protocol which applies to very, very rare conditions of extreme spina benefits and a thing called ‘EB’, where your skin is literally flaking off and it has applied to maybe a dozen babies.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 201

Mr Denton said “The other point you made about doctors in the Netherlands and Belgium killing patients, this is one of the first things I heard when I started on this journey - I was very confronted by it, I was told doctors were killing elderly patients in these countries. It took me a long time to dig to the bottom of it and find out what it was.

Mr Denton said “What it was...it was standard palliative care practice. What in fact happened with these so-called murders, because death is a very complicated thing and there are many grey areas, what they discovered because the Dutch, unlike our country, have an incredible X-ray over end-of-life practices, they know what’s happened, who has done it, how it’s happened.

Mr Denton said “We don’t have that here. The patients who had been murdered, in fact, they were euthanised without their consent. Why? Because they were in the last 24 or 48 hours of their life, they were in a coma, most had had a previous conversation with their physician about euthanasia.

Mr Denton said “If not the family was there and, more than that, they discovered when they really examined this that the physician had given the medication which had ended this person’s life not with the intention of ending their life but with the intention of relieving their pain. You just gave a textbook example of what I have been dealing with for eight months, which is con flags, distortion and, frankly, misrepresentation of facts to paint a picture which actually is not true.”

15. Mr Denton considered this accusation in Mr Formosa’s question in “Episode 13 - Now They’re Killing Babies” of Mr Denton’s series called “Better Off Dead” (EP 13 BOD). In EP 13 BOD, the transcript reads as follows:

Andrew Denton: Late in 2015 I was a panellist on the nationally broadcast Q+A program, discussing how we die, when a question came from the audience.

Question: Findings from the Netherlands euthanasia report in 2014 indicate 550 newborn babies with diseases or disabilities were killed. My question is how you propose Australian laws which protect the vulnerable when examples in Belgium and the Netherlands showing the exact opposite?

Tony Jones: Andrew.

Andrew Denton: I completely dispute and question your assertion that 550 babies have been killed. I don't know where you got that figure of 550 from... Five hundred and fifty newborn babies euthanized in one year? Officially documented? If not true, this was a mighty seed of FUD sown in front of a viewing audience of a million people.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 202

After the broadcast, a fact check of this claim was made by the independent academic website, The Conversation. They found that there was “no credible evidence to support the claim that 550 babies were killed last year under Dutch euthanasia laws. They went on to say: “While this claim does appear on some websites, it is not backed by reliable official data.”.

There’s a link to it, and the episode of Q+A, on our website.

Luke Formosa, who made the claim, was forced to concede that he couldn’t provide an accurate figure but ventured that, “it is also impossible to know for sure how many cases have been unreported”.

When I checked to see what websites were carrying this claim, the most lurid of many was an American site called Lifenews.com – operated by right to life activists and promising real stories about real Catholics – with a headline that screamed “Doctors Euthanize 650 Babies Under Assisted Suicide Law in the Netherlands”.

And then, of course, there’s Australia’s most senior Catholic cleric, the Reverend Anthony Fisher.

Anthony Fisher: In Holland it was supposed to be for people in extreme suffering, consenting adults, but after 10 years of that experience it became legal to do it for babies.

Andrew Denton: What Fisher was referring to was the rather sinister-sounding Groningen Protocol, published in The Netherlands in 2005 but not as part of their Euthanasia law, which had been passed three years earlier.

Instead, it was developed, by Dutch paediatricians, to guide doctors in providing end of life treatment to severely ill babies with – quote - a 'hopeless prognosis who experience what parents and medical experts deemed unbearable suffering”.

The Groningen Protocol is often cited by opponents of assisted dying as proof of the slippery slope. After all, what could be worse than killing babies? Determined to understand it better, I sought out one its authors, Dr Eduard Verhagen from the University Medical Centre Groningen.

He told me about the suffering of a tiny number of newborns, born with a rare and excruciatingly painful skin disease, a disease impossible to treat.

Dr Eduard Verhagen: The only two cases that we've had were cases of children that had the disease that was called EB, Epidermolysis Bullosa, it is a skin disease that may be mild but it also may be extremely severe and those two babies had the extremist form of EB.

Andrew Denton: Can you describe to me what the symptoms of that are?

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 203

Dr Eduard Verhagen: Yeah, that disease is a disease where the skin is not attached well to the body, so where, wherever you would touch that skin it would come off and leave a kind of a burn wound or scar. It wouldn't heal and not only is the skin involved. Also the mucus membranes. For instance, of the gastro oesophagus, which makes swallowing and eating very difficult. The problem of this disease is twofold. One is that it is very, very painful and it cannot be cured, so we do not have possibilities medically speaking to improve the disease.

Secondly, because of all those wounds and problem of feeding the children well, they die early so most of them somewhere between the first and the second year of life. And it is in those babies that the parents may come up to the physician and say "OK, we know that you cannot cure the child, we know that there is pain that you cannot alleviate well. Could you please stop the suffering?" So those are the cases in the last few years that we've seen where the Groningen Protocol was used.

Andrew Denton: And, just so I'm entirely clear, all of the cases of babies who've been euthanised under the Groningen Protocol, They were terminal conditions. These babies not going to live beyond, what, a couple of years?

Dr Eduard Verhagen: Absolutely. So the criteria of the Groningen Protocol are clear, in the sense that the diagnosis and outcome must be hundred percent sure. There must be a disease that is, not treatable and incompatible with life. So all children are expected to die in the near future. Generally we would say somewhere between a few days, weeks or months rarely years. The second criteria that is extremely important is the unbearable and untreatable, hopeless suffering.

And, in the cases that I have just talked about, the EB cases, I don't think there would be any person in the world that would, say that those babies aren't suffering. So, it is only when we're all convinced, parents as well as healthcare providers and other experts, that there is extreme suffering, that would make a patient a candidate for neonatal euthanasia.

Andrew Denton: I think the key there is when you say the parents, because the last people in the world that wish to see a newborn die are the parents of that newborn.

Dr Eduard Verhagen: Absolutely. Neonatal euthanasia in Holland can never be performed if the parents are not fully consenting, asking for this procedure. So basically what we do is we offer a possibility for parents in the context of unbearable and hopeless suffering. They may want to choose this option but they also may choose not to have neonatal euthanasia.

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And this is I think very important and totally in line with how end of life care is organised in our country. It is sad, it is terrible, but knowing that your baby will die, we would say, please allow parents a say in how they would die.

Andrew Denton: Eduard, you must be aware of how this is sometimes portrayed in other parts of the world. I've heard it described here in a sinister way, as you're killing babies. As though there are some less compassionate motive. How does that make you feel?

Dr Eduard Verhagen: I think what bothers me most is that the facts that are given about Groningen Protocol hardly ever are correct, so the nuances, the details of it, and the huge weight that is given to the assessment of the parents as well as the assessment of the physicians and the rarity, the fact that it is only used for extreme situations is not always acknowledged. So the fear of the slippery slope, I think, we've demonstrated is totally needless,

Andrew Denton: Due largely to the introduction of prenatal screening, the latest data shows that since 2007 there have been only two reports of babies being helped to die by doctors using the Groningen Protocol. Not 550 babies; 2. Both of them faced with a life full of pain that might, at best, have lasted a couple of years.

It is these rare and tragic cases that the Protocol was written to address. An honest, cautious, and humane response from doctors to an awful medical problem faced by every society, including ours.

But if you’re Archbishop Fisher? Much easier just to say “Look! Now they’re killing babies!”

Fear. Uncertainty. Doubt. FUD. It’s been said that, "A paranoid is someone who knows a little of what’s going on".

My Evaluation of the Submissions of the Claimant and the Respondent;

16. In my evaluation of the evidence presented by both sides, I will, again out of fairness to both sides, and especially out of fairness to the respondent side (and especially towards Mr Denton) I will not consider tendency and coincidence evidence – in my judgment. I will however raise it as a separate issue after my judgement has been concluded. The reason for this is because tendency and coincidence can convict anyone of anything without it being cross examined by competent defense Counsel. Instead, I will consider only what was said, done and the nature of the investigations made.

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17. When I consider the claimant’s case and evidence, I have the following issues raised for me:

(a) Mr Formosa did not articulate his argument very well, or provide any qualifications to his number of 550 and it was poorly framed;

(b) Mr Formosa did not cite is sources very clearly, if at all;

(c) Mr Formosa did not make it plain that he was relying on reported and unreported instances of infanticide, which hurts the perception of his credibility.

(d) Mr Formosa’s question was typical of that on Q and A; and

(e) Mr Formosa quickly and fully complied with investigations as to his claims and frankly said that he could not find further evidence for the number of 550.

18. When I consider the respondent’s case and evidence, I have the following issues raised for me:

(a) Mr Denton appeared to be surprised by the claim of 550 babies being killed. I must take it on face value that he did not know about this accusation, nothwithstanding the he is appears to be a researcher on this issue of euthanasia in Australia and worldwide as he is leading the argument for the introduction of euthanasia into Australian law.

(b) Mr Denton did travel to meet the mastermind behind the Groningen Protocol, so obtaining the opinion of that person is reasonable evidence, of that person’s opinion;

(i) Ask any questions of Dr Eduard Verhagen to show him as being wrong, ie there was no cross examination, there was only favourable questions asked;

(ii) Interview the families of either of the two alleged deceased children;

(iii) Interview any people in the Netherlands who held official capacity within the Dutch medial administration or community who held negative attitudes towards the allegation that a mere two (2) babies have been killed and no more:

(iv) Take any steps to investigate if there was any cover up of additional deaths;

(v) Ask if the child had to be as badly off as these kids before they would be considered suitable for the administration of the Groningen Protocol

(vi) Consider how many applications by medical practitioners had been turned down, such that more kids may have been targeted but saved at the last, hinting that in the future, the Groningen Protocol may be relaxed; and

(vii) How many of the rejected applications for euthanasia of newborns were killed unofficially.

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(d) Mr Denton’s whole premise as espoused in the 9 Nov QA Episode is built and dependent on there being 100% reporting compliance, that is, the “x-ray” where the Dutch authorities who regulate euthanasia in all people of all ages knowing the full facts of 100% of deaths involving euthanasia; and

(e) Mr Denton does not appear to have interviewed anyone from the organisation who published the material relied upon by Mr Formosa. That is, the lifenews.com.

(f) Mr Denton has made quite some mileage on this issue as against Mr Formosa and Mr Anthony Fisher and Catholics generally. He has made repeated comments about “FUD”, a catchphrase which he has made frequent use of as against all evidence he does not agree with.

My Conclusions

19. Mr Formosa’s question was fitting of the standard that is requisite for the television show Q and A, and was probably better prepared than many questions that have been asked on that show (I have been an audience member about half a dozen times of Q and A). Q and A specializes in having ordinary people ask their questions of the panelists in their own ordinary way using their own ordinary words – and to do that in an extraordinary way – on national television. This is one of the most important and highly valued aspects of Q and A, even if one does not agree with the question or the answers. It is open discussion. Mr Denton’s accusation of FUD in front of a million people was therefore heavy handed.

20. I do not think that, based on the evidence presented to me, it is possible :

(a) to conclude that a mere two newborn people; or

(b) to conclude that a mere 550 newborn people

have died as a result of the Groningen Protocol

21. I do not consider that there is any instance, in the Netherlands or elsewhere, where 100% reporting is believed to exist, or 100% compliance is said to exist. Indeed, until there is 100% consensus amongst doctors, nurses, pharmacists dispensing lethal drugs, hospital administrators, bureaucrats, police, judges, politicians and families of infants who are scheduled to be killed under the Groningen Protocol (any anyone else who dies by euthanasia) in the Netherlands as to what compliance means, there will never be 100% accurate and 100% properly controlled euthanasia of anyone let alone infants. Therefore, the assertion of “X-ray” like accuracy made by Mr Denton cannot be relied upon.

22. Mr Denton has not canvassed enough of the negative evidence to truly put Dr Eduard Verhagen’s evidence to the test, and, therefore he has not dispelled the perceived bias that Dr Eduard Verhagen will have against a program he designed, is proud of and never speak badly about.

23. What the actual number of deaths is, is a subject for further debate and the procurement of better evidence.

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24. The lack of transparency as to infanticide Groningen Protocol as well as the Groningen Protocol is still a cause for concern for all Australians and it should not be permitted to be implemented in Australian law.

THE ABOVE ASIDE, DO DOCTORS KILL PEOPLE?

Multiple Layered Denial of Reality

25. In my respectful submission, there appears to be at work a multiple layered denial of reality being perpetrated by supporters of euthanasia in the arguments that they bring in their call for law “reform” (is say law deform). This is seen as follows:

(a) They admit that doctors do unlawfully kill patients;

(b) They admit that nurses do unlawfully kill patients;

(d) They admit that some supporters of euthanasia agree that non-voluntary and unlawful killing infants is acceptable;

(e) But deny that babies are being killed in Belgium;

(f) But deny that doctors cause harm to patients; and

(g) But deny that doctors are untrustworthy in administrating and working within any proposed legislation to allow them to kill patients.

Neil Francis’ Incorrect Written Submissions

26. As highlighted already in this letter, Mr Francis has in the Francis Submissions gone to great lengths to show

(a) That the doctors in Australia and around the world do kill patients. This has been a concern of many an opponent of euthanasia for some time; and

(b) That nurses are also involved in the killing of patients.

So where is the aspect of mis-information that says it is a concern that people are and are going more so be killed by the people who should be caring for the dying.

The Majority Report In The Final Report

27. In a rare example of honestly, the majority of the Victorian Committee even recognised doctor assisted dying was already an issue. I expect that Dr Symes knows this as well.

A7.4 Arguments for legalising assisted dying

A7.4.4 Assisted dying occurs already, and is unregulated

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Assisted dying occurs already in Victoria, despite being unlawful. It occurs within and outside of medical settings. The instances that occur within medicine are nearly impossible to police.

As these practices are not regulated, there are no safeguards, and the ongoing unlawful practice of assisted dying brings the law into disrepute.

28. This legislation in Victoria and elsewhere will effectively be handing out a licence to kill – James Bond 007 Style.

Self Serving Support for Euthanasia

29. In addition to political mileage being made from being seen as achieving the introduction of euthanasia, the following question must be asked:

(a) Is the support from:

(i) Doctors, which is relied upon as evidence of support for euthanasia;

(ii) Palliative care nurses, which is relied upon as evidence of support for euthanasia; and

(iii) The Australian Medial Association, which is relied upon as evidence of support for euthanasia;

(b) Support which is given because: and

(i) Members of the above organisations have killed people;

(ii) Members of the above organisations know people who have killed people; and

(iii) Members of the above organisations may one day people

Expert Opinion on the Behavior of Doctors

30. I am not qualified to speak of the behavior and attitudes of the medial profession, I am therefore reliant on other people’s opinion. I therefore submit the following for your consideration.

Example 1 Dr Kristi Giselsson (Photo above) – 31. This example was obtained from the Real Dignity Tasmania website, in a In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 by Dr Kristi Giselsson, Doctor of Philosophy and Honorary Research Associate, at the University of Tasmania.

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Further, in the case of non-rational humans, placing the decision as to when and whether another human being should die in the hands of another fallible human is an extremely dangerous matter. Research has shown that:

Medical and nursing professionals consistently rate the quality of life of their patients lower than patients do themselves and they base such judgements on medical or disease criteria rather than ‘non-medical’ criteria, such as happiness, relationships and financial security, that their patients consider more important.[3]

As doctors and nurses consistently underrate the quality of life of both their rational and non- rational patients, they can hardly be seen as providing ‘objective’ advice or even the ‘best’ advice to their patients. This means that not only their non-rational patients would be affected by their subjective assessment as to the quality of their lives, but even their rational patients would be unduly influenced by their supposedly objective summation as to the quality of their present and future lives. This could lead to a patient making a decision to die on the basis that they believe that their future lives (according to their doctor), would be not worth living.

[3] Ian Kerridge, Michael Lowe and John McPhee, Ethics and Law for the Health Professions Second Edition (Sydney: The Federation Press, 1998, 2005), p. 260, my italics. Kerridge, Lowe and McPhee 2005, 260; my italics)

My take on this expert evidence is that Doctors have lower value on people’s lives, adding to the propensity to be willing to kill what they do not value.

Example 2 – Belgium Doctors unofficially follow/ support the Groningen Protocol 32. The Groningen Protocol in the Netherlands is in keeping with what numerous doctors in Belgium also desire.

The Groningen Protocol15 caused quite a stir in Belgium and a great many medical practitioners are of the opinion that since a “therapeutic” abortion is possible right up to the day before birth in the event of the child being handicapped, euthanasia of new‐borns ought also to be allowed under the same conditions.

(Source: European Institute of Bioethics Dossier of the European Institute of Bioethics, Euthanasia in Belgium 10 years on).

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Annexure 45.: The “Slippery Slope”: People’s Responses to Pain Allows It To Happen PERSONAL EXPERIENCE HAVE CAUSED AN EMOTIONAL CONFLICT OF INTEREST

1. I hold the view that there is a disproportional amount of support for euthanasia from people who have had experiences.

2. There is a saying that “he who represents himself has a fool for a client” meaning that such a person has lost their objectivity and cannot see reason as to what they are asking for or expecting. They see only their own point of view and cannot see the correctness of opposing arguments or the consequences outside their own world and own situation.

3. I have prepared the table below to set out what I see as the conflict of interest created by reason of the above rationale who have unduly biased his whole introduction of euthanasia into Victoria.

## Name Position Experience Citation 1 Daniel Andrews Premier of Victoria Dad’s death Widely known 2 Jill Hennessy Health Minister of Victoria Mother’s dying Widely known 3 Dr Brian Owler Chair of the Ministerial Dad’s death Reported in news. Advisory Panel 4 Nikki Gemmel Euthanasia Activist Mother’s death. Widely known Q and A Panelist. 5 Robert Gunter, Personal submission Facing his own death Final Report p203 6 Morna Ann Brayshaw Personal submission Facing her own death Final Report p204 7 Anne Kotzman Personal submission Age 86 facing her own Final Report p220 death 8 Christine Hamann Personal submission Facing her own death Final Report

4. In relation to Jill Hennessy MP, my evidence comes from the Australian newspaper which rant the following story by Samantha Hutchinson 12:00AM 20 September 2017

“She was effectively a functioning quadriplegic with a range of other really serious, painful conditions, and yet she was smart enough to know exactly what was happening to her,” Jill Hennessy said of her mother, who died a day short of her 75th birthday on August 21.

The scheme, which Ms Hennessy and Attorney-General Martin Pakula describe as “safe and compassionate” and the strictest in the world, proposes to offer access to lethal drugs for terminal patients of sound mind and with a life expectancy of under 12 months

“safe and compassionate” I do not think so.

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Annexure 46.: The “Slippery Slope”: Q and A Discussion 1. I attended the ABC’s Q and A in or about May 2017 the evening when the issue of euthanasia was discussed with Nikki Gemmel and Margo Somerville, Senator Mitch Fifield, Senator Penny Wong and entertainer Billy Bragg, and, who will ever forget, Ron Fellows and is wife Margaret Fellows.

2. I sat bear Ron and Margaret, a few seats away and not much more. I was shocked at what came from their mouths and especially the swearing that came from Margaret. I have also considered that Margaret was dismissive and covered her lack of ability to argue against Margo as reason for her use of force in the absence of anything intelligent to say.

3. I am indebted to the Q and A Transcript team for providing a transcript of the evening which I picked up and now critique, for argument style and tactics as well as for facts alleged. I do not know why “Margaret Fellow’s name was changed to Patricia Fellows:

## Transcript My Critique RON FELLOWS This is the introduction that Dying My question is to Margaret. I’m 90 years of age. My wife is 81. with Dignity would approve of – We’ve decided that we will not go into any kind of aged care personal and emotional. facility. And if the time comes where we can’t take care of 1 ourselves, we will look for some form of euthanasia. We’ve told our children about our wishes. They have, albeit reluctantly, agreed that that is relatively effective... Sorry, not effective, but they’ve agreed to our wishes. But you don’t seem to be able to agree, and why? MARGARET SOMERVILLE I agree with Margaret. OK. That’s a big question. You’re talking about what the Dutch are She is being very factual. now calling a completed life. And the Dutch are actually looking at extending euthanasia to people like you who say, “I’d rather be dead than go into a nursing home,” even though you’re not terminally ill. 2 And originally, when euthanasia was first introduced, it was usually a condition that you had to be in terrible suffering, you had to...the suffering wasn’t able to be relieved, you had to be a competent adult and you had to give your informed consent. And now what we see in the Netherlands – and actually in Belgium as well – none of those conditions necessarily apply 3 TONY JONES Are you making a slippery-slope argument, Margot? She is making a factual argument. MARGARET SOMERVILLE I agree with Margaret. Well, it is a slippery-slope argument, yes. And that’s by way of Again, she is being very factual and leading to why do I think euthanasia is a very bad idea. I actually logical. believe that one person intentionally killing another person is Being factual and logical does not wrong. But not everybody agrees with that. Some people think it always get one listened to. can be justified in some cases. But even if you think that, I would argue to you that the risks and harms of legalising – and particularly 4 legalising doctors being able to take the lives of their patients – inflicting death intentionally is so dangerous that we shouldn’t allow it. Your death doesn’t affect just you. Your death is...it’s a social event. It affects your family, it affects your community. And, ultimately, if what we’re doing in society is changing the law to allow this type of – putting it bluntly – killing, then it is a seismic shift in our values as a society. It doesn’t uphold respect for life at a

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societal level and you have to have respect for life at two levels – for every individual person, and for society in general. TONY JONES OK, I’m going to go... Thank you, Margot. I’m Noted 5 going to go back to Ron in a moment, so bear with us. I want to hear from Nikki Gemmell, who’s put this whole issue on the agenda. NIKKI GEMMELL Emotional speech, what dignity Yeah. Look, Ron, thank you for your story and thank you for your wants people to hear. compassion and your courage in talking about it, and with talking to Personal story. your children about it, because that’s what my mother didn’t do. She was suffering from chronic pain and she had investigated the euthanasia situation in this country. And she realised that, to protect us, she would have to go alone. And she died a very bleak and lonely and desolate death without any Nikki has a conflict of interest as love and without her family around her because she was trying to she is biased due to her own protect us. She knew that if we were involved in any way, if we experience. assisted in any way, we would be implicated. We could possibly be facing police investigations – and I did have a police investigation – we could face fines, possibly even jail terms. Mum was trying to protect us. But she was a passionate advocate of euthanasia and wanted the situation to change in Australia so that she could pass away Emotional and horrific stories. This peacefully in a room brimming with love, surrounded by love. We sounds like the Final Report tale of have so many elderly people in this country. The beautiful police woes. officer, with absolute tenderness and compassion who came to me, 6 to my doorstep, and told me that my mother had died. She said to me, “Nikki, this is an epidemic. On my beat, I see this situation These statistics sound like the happening all the time with elderly people suiciding out of despair surveys sponsored by pro and no-one is talking about it.” euthanasia organisations. Subsequently, in terms of research for my book and all the rest of it, I’ve discovered these beautiful old men... They want to euthanase themselves. They don’t know how to. They want to involve their families. They’re doing things like getting nail guns and trying to kill themselves with nail guns and leaving trails of blood throughout the houses. They’re hanging themselves on Hills Hoists out in the back garden. And I’ve been doing some forums involved with my book and it’s so interesting, the elderly people who stand up and they say, “Nikki, Same trick as Dying with Dignity, no-one is listening to us. Please listen to us with respect and Dying for Choice and Go Gentle by compassion and understand where we’re coming from.” And I saying that Anglicans and Catholics would say, Margot, I’m speaking for 80% of the Australian want it. We do not. population here who support the euthanasia laws and in terms of Catholics and Anglicans, I’m speaking for up to 70% of them as well. TONY JONES Nikki, can I just bring you something about your Noted 7 story which I understood... TONY JONES OK, so something I understood when reading your Is he feeding Nikki lines? 8 story was your mother, as you said, suffering from chronic pain but sophisticated pain relief?? never sought any form of sophisticated pain relief... Did Nikki’s mum cause her own 9 NIKKI GEMMELL No. pain? TONY JONES ..from a pain management centre, which exists Did Nikki’s mum cause her own 10 obviously around the country. pain?

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Did Nikki’s mum cause her own 11 NIKKI GEMMELL Yes. pain? TONY JONES Would that have totally changed the equation if Did Nikki’s mum cause her own 12 she’d sought pain relief, and it actually had worked? pain? NIKKI GEMMELL How did we get to this? It appears Yes, and in terms of checks and balances with the situation in the that Tony was talking about normal Netherlands and Belgium, in America, there are extraordinary hoops pain relief, and Nikki went to that you have to leap through to actually be accepted into a euthanasia. euthanasia program. I know that if we’d had something like this in Victoria... You know, in a couple of months, we may get some good Nikki does not talk about the news about this situation. Or if we had a Dignitas, which is the problems of the report. 13 clinic in Switzerland where you can go to die. It is very hard to actually be accepted into that clinic. I have a Nikki talks about dignitas as though beautiful friend who is going there in a couple of weeks to pass it is perfect. She then covers this away, holding the hands of her adult children, all four of them and statement, by speaking emotionally her best friend. She has...months and months of trying to get again. Telling a story to distract accepted. It is very, very hard to do it. And there are so many checks attention, this is a recommended and balances. Rightly so. Dying with Dignity tactic. Margo want to reject the assertions about the perfection of overseas euthanasia clinics. She is shut down 14 MARGARET SOMERVILLE Tony and the opinion of Nikki allowed to settle in people’s minds. There was no need to go to Margaret Fellows at this point. TONY JONES I’ll come back to Margot. I said I’d go back to Ron, Has Tony Jones lost control? who asked the question. I mean, listening to this, Ron, I mean, what 15 is it...? First of all, we haven’t heard from your wife, who’s sitting next to you, so I guess... 16 PATRICIA FELLOWS You can. Noted Was this an encouragement to be 17 NIKKI GEMMELL Go for it! emotional? Was this an agreed que? I guess that he wants to hear this TONY JONES We’re all sort of sitting here wondering if Ron is 18 woman’s testimony about her own actually speaking for both of you ‘cause we haven’t heard from you death. This woman denies the act of PATRICIA FELLOWS Yes, Ron is speaking for me as well. And killing is killing. right now, we’re in good health. We do not intend to take our own I don’t know what you are on about health... our life until we need to. And it’s not about killing anyone. 19 possibly means she has never We will be doing it ourselves. I’m not asking Ron to kill me. I will thought of it and therefore does not do it myself. And Ron will do it himself. I don’t know what you’re know the severity implications of on about, darling, about killing. the intended actions. PATRICIA FELLOWS That is definitely the wrong word to be I disagree. All killing is killing. 20 using. Even self defence is killing. 21 MARGARET SOMERVILLE But it’s still killing yourself I agree. She admits that she killing. She wanted to deny that initially. Margo 22 PATRICIA FELLOWS Yes, but that’s up to me. has educated her. This is a win for Margo. Margo is basically saying, you can 23 MARGARET SOMERVILLE Yes, I know, but that’s... do it, but it is still murder. PATRICIA FELLOWS And it’s got nothing to do with the This only is true if this woman has 24 community, darling. It’s to do with our family. no friends and no one knows her.

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MARGARET SOMERVILLE I agree, she is being very factual. 25 How you die does have to do with the community. This is totally unacceptable; 26 PATRICIA FELLOWS Bullshit. This is admission she has no arguments. 27 PATRICIA FELLOWS Tell it as it is. Pretend that this is like it is. Margo was getting set for a 28 MARGARET SOMERVILLE Can I...? response. Tony probably had no choice but to TONY JONES Tell you what, I’m actually going to go to the next 29 change subject to avoid a lack of question because it still relates... decorum and slanging match. TONY JONES That was somehow quite refreshing. The next Not sure what he means by “quite 30 question is from Rachel Williams. refreshing” EUTHANASIA IS NOT EMPOWERING00: RACHEL I agree with this question. WILLIAMS Why do we long to be in control of every aspect of our People want to be in control and lives? Does taking control of our bodies through euthanasia bring will die out of insecurity about the 31 us, as individuals, empowerment or does it make our society less future. kind and full of humility? Is death not the most humbling experience because it is the one thing we can’t control? Glad she got first dig, this is not an emotional question but a 32 TONY JONES Margot. philosophical question that needs a structured answer. MARGARET SOMERVILLE Noted. 33 I must admit I didn’t find that easy to hear that question. TONY JONES Noted. Well... It’s about taking control of your lives and whether that’s a good or a bad thing. And I think you’ve just heard there, in no 34 uncertain terms, from a lady and her husband who want to take control of their lives and their deaths. They want to choose for themselves MARGARET SOMERVILLE I agree. Yes, well, we know that when something is really... we fear it Again Margo is being very factual greatly, our response to that is to try to take control of it, which and structured. reduces the fear. And I actually have a theory that euthanasia is... It’s actually what social psychologists call a terror reduction 35 mechanism. You try to make death... instead of being a mystery, you make it into a problem and you seek a solution to the problem Margo finally gets to refute the which is a lethal injection. But I’d really like to come back to what emotional hype of Nikki Gemmel. Nikki was saying. You know, Nikki, I doubt that your mother would have been eligible for assisted suicide. NIKKI GEMMELL Nikki did not like being 36 No, that’s what... contradicted and had to jump in. MARGARET SOMERVILLE Margo pushes on with the facts, and That’s the first thing. And what you say about the Netherlands, that does so to people who do not want it’s all fine and it’s working well and there’s no problems, that’s to hear them. 37 simply not correct. There’s... 1.7% of all deaths in the Netherlands are actually done without any consent or knowledge of the person who is given a lethal injection. And as... Nikki is disbelieving, like people are when they are presented with 38 NIKKI GEMMELL Really? the real facts, that are not procured by pro-euthanasia organizations.

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39 MARGARET SOMERVILLE Yes. NIKKI GEMMELL This is an exaggerated claim, fear In terms of all the different... the various enormous checks and of imposters. 40 balances? My friend, who’s about to go to Dignitas, she has to even One good safeguard does not provide dental records because of fear of impostors at the moment. validate a whole system. It is very, very rigorous. And in terms of the... Margo sticks with her factual line 41 MARGARET SOMERVILLE Well, I don’t agree. of argument. Tony steered the conversation away TONY JONES Can we stick with Australia for a moment, because 42 from the evidence against we’re about to see in Victoria the first legislation. euthanasia. 43 MARGARET SOMERVILLE I hope not. I agree with Margo 44 NIKKI GEMMELL I hope so. I disagree with Nikki. TONY JONES We’re certainly going to see the legislation. It’ll go to a conscience If tony has read anything about this vote in the second half of this year. But there are some very strict proposed legislation, he should 45 rules around how it would actually work. They have clear guidelines know that there was no on assisted death. For example, it has to come from a mentally investigation of Belgium. competent, terminally ill person in the last weeks or months of life, over the age of 18. 46 MARGARET SOMERVILLE None of that... I would like to have heard more. TONY JONES So, that deals with some of the issues you were Is Tony Jones arguing in favour of 47 talking about. euthanasia. MARGARET SOMERVILLE Not one of those requirements I agree with Margo. 48 applies in the Netherlands or Belgium. Quick admission to avoid further 49 TONY JONES OK, fair enough success for Margo. 50 MARGARET SOMERVILLE OK. And let me tell you... Margo shut down. TONY JONES We probably can’t really debate what’s happening Tony knows he is about to be run 51 there right now. over so he avoids debate. MARGARET SOMERVILLE Margo changes to Canada, to step But do you think Canada is somewhat similar to Australia? So, around tony Jones’ refusal to talk we’ve just been through this in Canada, where I was involved in it, about Europe. and it was going to be very restricted. Within weeks of the 52 legislation being passed, it was challenged as not broad enough and I agree this is a problem for the now they’re looking at including people with Alzheimer’s disease, opponents of the slippery slope. they’re looking at people who have got only mental illness, no physical illness. The major problem with Oregon is that there is a lack of recording of what killing is going on. That is a NIKKI GEMMELL Margot, this has not happened in Oregon where different aspect of the slippery 53 the situation has been allowed for 20 years. slope, namely, that people are slipping in their levels of expectations of what is an acceptable standard of compliance. 54 MARGARET SOMERVILLE Actually, Nikki... Margo was getting set to give more 55 NIKKI GEMMELL There has not been mission creep, so to speak. Nikki closed her down. TONY JONES I’m just going to get you both to pause for a Noted. moment. We’ll come back to you. I just want to hear from the other 56 panellists. And Mitch Fifield wants to jump in. Victorian legislation. You’re from Victoria. You’re about to see the state in which you live seek a conscience vote on this very issue.

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57 MITCH FIFIELD That’s right. Noted 58 TONY JONES Do you support it? Do you support the legislation? Noted MITCH FIFIELD I don’t, but can I firstly strike an optimistic note Noted 59 before coming to the heart of that, as a former Minister for Aged Care? 60 TONY JONES No-one’s going to die? Noted 61 MITCH FIFIELD Well, no... Noted MITCH FIFIELD No, but make the point that Australians are living longer, they’re This is a common theme with the living better, they’re living healthier lives. You might not know this, Final Report. but there are currently 5,000 centenarians in Australia. By 2050, there’ll be 50,000 centenarians in Australia. We’ve got an ageing Noted. population, and that’s a great challenge to have. But to the issue 62 itself, I don’t support the Victorian legislation. I guess, for many of us, our views on this issue are informed “our views on this issue are through personal experience with our families. And both of my informed through personal parents passed away about 20 years ago. And in each case, their experience with our families” - deaths were hastened by good palliative care. And what that has left Nikki’s certainly are and they are me... bias. 63 TONY JONES Sorry, did you say they were hastened? Noted MITCH FIFIELD Well, good palliative care can bring a death Noted 64 forward. 65 MARGARET SOMERVILLE Actually... That’s not right. Margo getting ready to correct. MITCH FIFIELD Sorry. Let me... Let me explain. There are Noted 66 situations where individuals... TONY JONES Does that mean euthanasia is happening in Actually, it is, big time. 67 palliative care? MITCH FIFIELD No. There are situations where there are Noted legitimate care options, which are presented, and a by-product of some of those can be that a death comes forward. That’s the point 68 I’m making. And so my view is that sometimes it’s a good thing when there is space in the law that allows families, that allows doctors, and allows patients to manage their situation. TONY JONES Sorry, just very briefly, because you are from This is very detailed knowledge. Victoria, now the situation there will be that a request would have to be repeated three times by a patient, including in writing, and How does Tony know this and not 69 approved by a primary doctor and an independent doctor. Are those know that there was no sort of guidelines and safety measures not good enough for you? investigation of Belgium. Whereas you’re, on the other hand, saying that in palliative care, maybe they’re killing people without really telling us that they are? NIKKI GEMMELL And it has to come from the individual in No it is not. Nikki is wrong. Victoria, the proposed legislation. That is the only person who can More emotional talk – brought to us 70 propose this. It’s empowerment for the individual. Yes, it’s control, by our friends at Dying with but it’s compassionate control. Humane control, because we don’t... Dignity. 71 TONY JONES Let’s let Mitch talk. Noted 72 NIKKI GEMMELL Sorry! Sorry, Mitch! Noted MITCH FIFIELD No, no. Not at all. Perhaps because this is a Noted personal experience, I’m not expressing it as clearly as I might otherwise. But my point is that good palliative care can, in an 73 overwhelming majority of cases, ensure that people have a good death. And that’s my point, is that there can be a range of legitimate care options, which manifest themselves differently in the time frames that people have.

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74 TONY JONES OK... Sorry. Noted MITCH FIFIELD You should never... I’m not saying that you Noted should, consciously, as a medical professional, set about a path that leads to someone’s death. What I’m saying is that there are ways 75 that a medical professional can legitimately respect the wishes of a patient and that the way that those legitimate care options manifest themselves can be in different time frames. MARGARET SOMERVILLE Tony, can I just comment, first of I agree. Again, Margo is factual and all, everybody has got the right to refuse all treatment. And one of plain speaking. the examples of what Mitch is talking about would be you’re on a 76 respirator, you don’t want to be on a respirator, you say, “Take it Margo is not relying on emotion to away,” failure to take it away is actually an assault. So, you’re see her argument win. absolutely... MITCH FIFIELD That is precisely... Just to clarify, lest there be Noted 77 confusion about what I said earlier, that is precisely the circumstance that I’m talking about. TONY JONES OK, sorry, I want to hear from Penny Wong. We Noted haven’t heard from the other side of politics on this. You’ve got 78 numerous Roman Catholics in your Shadow Cabinet who strongly oppose this very idea. What do you think about what the Victorians are doing? PENNY WONG The arguments of Senator Wong are Well, look, this is a deeply personal issue. It’s a...at times difficult basically, and confronting issue. And I think that, in talking about it and thinking about it, dealing in absolutes is problematic at times. So Choice when I listen to Margot say, you know, “This is about respect for life,” and I thought about that and I thought, “That’s true. We Slippery slope does not exist. should...you know, we do have, as a norm, respect for life,” but we have other norms we have to balance here too. Respect for the That is, there are no consequences. 79 right of the individual to make a choice about their life. So, I would support the legislation. Yes, there are difficult questions This is the same argument structure about checks and balances and ensuring that it is not used in ways of the pro same sex marriage lobby we don’t want it. And I appreciate, Margot, you run the slippery- – of which Senator Wong is one. slope argument quite indefatigably. But I think we should deal with the principle first, which is, “Do we actually think people Has the Senator actually turned her should have that choice?” I think yes, I do. Not in all mind to the dangers and the social circumstances. And I would want it carefully constrained. But I implications? I bet not. think, as a matter of principle, that is what I believe. TONY JONES Let’s hear briefly from Billy. You’ve got personal Noted 80 experience as well. BILLY BRAGG Yeah, it’s obviously an incredibly emotional Noted experience, because we’re talking about our loved ones here, but I was privileged to have had a conversation with my mum a few years prior to her becoming terminally ill, in which she made it absolutely clear to me that she didn’t really want to be an infirm person. And that gave me the confidence to be able to say to the doctor, “Please, 81 don’t resuscitate her,” when she was on the last couple of days, you know, and they were talking about making some kind of intervention. And I was pleased to be able to say that, to respect her wishes, but I made a decision there. I made the decision to not extend her life and it gave... I’ll be honest with you, it gave me comfort that I was able to assist her to get what she ultimately wanted, because I think...

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Margot, what you’re doing is – not on purpose, you’re doing this – but what you’re asking us all to do is to tolerate suffering. 82 MARGARET SOMERVILLE No, no, really... Noted 83 BILLY BRAGG And to put up with suffering. Noted 84 MARGARET SOMERVILLE I agree with... Noted BILLY BRAGG And to extend that suffering. I don’t think you Noted 85 have a right to say that. I don’t believe you have the right. Actually, there are not as many as 86 NIKKI GEMMELL There are so many bad deaths she makes out. MARGARET SOMERVILLE Billy, I totally agree with what you I agree with Margo. 87 just said, what you did. That’s not euthanasia. That’s dying a natural death. BILLY BRAGG But they could have gone in there and broken her Noted 88 rib cage, put her back on a machine, put her back to life. 89 MARGARET SOMERVILLE No, but they shouldn’t. Noted BILLY BRAGG They could have, though. If life is sacred, why Noted 90 shouldn’t they do that? Why shouldn’t they keep everything going? MARGARET SOMERVILLE Because there’s a difference I agree with Margo. 91 between inflicting death and prolonging dying. And not Again Margo is being factual and unnecessarily... not emotional 92 BILLY BRAGG But if someone is terminally ill... Noted Is Margo being asked this because TONY JONES Is your ethical position here, Margot, informed by 93 Dying with Dignity and others try religious belief? to dismiss religious reasons? 94 MARGARET SOMERVILLE No As above 95 TONY JONES It’s not? Not at all? As above 96 MARGARET SOMERVILLE No As above 97 TONY JONES Are you a religious person? As above MARGARET SOMERVILLE Yeah, I think I am. Well, I sort of As above 98 am, Tony. TONY JONES But you can separate those two things out? Because As above 99 obviously... 100 MARGARET SOMERVILLE I’ve had a complicated life. As above TONY JONES This experiment was strange. Alright. OK, we’re trying an experiment tonight, an idea we borrowed from the Bible Society, believe it or not. Our panellists 101 talk a lot, but do they listen? Now, Margot, you’ve heard the other This made this experiment even side of the argument, so I’d like to hear you express what you stranger “borrowed from the Bible believe the other side of the argument is. Society” MARGARET SOMERVILLE Margo’s explanation was more OK, the other side of the argument is that everybody’s got a right to coherent than Nikki’s own self-determination, that they own their own life, that nobody else explanation of Nikki’s position. has got the right to tell them what they do with that life and if they 102 feel that their life is not worth living, that it’s more of a harm than a benefit to go on living, they want to have the right to have somebody else help them to die, either by giving them the means to commit suicide or by giving them a lethal injection. Now, my objection... TONY JONES No, no. I’ll come to your objection. Now we want Noted. 103 to hear from Nikki. Can you describe the argument against what you all say?

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NIKKI GEMMELL Margot is concerned... She keeps on throwing Nikki’s comment was a poor to situations in Europe. She’s concerned about... I call it mission attempt and even patronizing. creep – because I’m still stuck a little bit in Syria and all that situation – of, you know, checks and balances being widened or This is focusing on herself again 104 loosened. She’s worried, um... about people having control at the and not an attempt to show an end. She sees that as a possible negative, whereas I look at my own application of Margo’s argument. mother, she would have thought that she had a good death. She wanted to be in control of her destiny. She was afraid of going More emotion and bias due to into a nursing home. personal tragedy. 105 TONY JONES You’ve snuck back into your answer. Finally, TJ pulls her up. 106 NIKKI GEMMELL Oh, OK. Was I not allowed to do that? Sorry. She knew that all along. TONY JONES I just want to hear, Margot, was that a good Noted. 107 summary of your own argument? 108 MARGARET SOMERVILLE No I 150% agree. 109 NIKKI GEMMELL Aarggh She sounds surprised. No idea. 110 PENNY WONG Can I have a go? Noted. TONY JONES OK, no, I think we’ve heard your argument. So, Noted. 111 Nikki, was what Margot said a good summary of your argument? NIKKI GEMMELL No, I feel it was like a slanting of what I was trying to say and it was She claims to be not acting taking all the emotion out of it and this is a deeply emotional emotionally but she is. situation. I feel like I’ve been on the coalface of euthanasia now. We don’t do this to our animals, to our pets. We don’t see them Again, she is going back to her own suffering like this. experience with her mother. 112 I come from it, from a deeply personal point of view. But I just wish that my mother had been able to say, “Kids, this is what I’m going Refereeing to pets is wrong as we to do,” that she’d been not afraid of that conversation. And she put them down as they are would have had that peaceful death. Instead, she died in absolute disposable. desolation and loneliness. It was a lonely death. And I just hope the situation can change for all those older people out there who want to do.. 113 TONY JONES You get a 20-second right to reply. Noted MARGARET SOMERVILLE But surely, Nikki, the answer to I agree. 114 loneliness is not that we will kill you. NIKKI GEMMELL No, I’m saying that her death was lonely, Noted. 115 because her family couldn’t be with her. I wasn’t saying that. MARGARET SOMERVILLE But do you know that loneliness is I agree, pain is not No. 1 reason. 116 high up on the list of reasons why people want euthanasia? NIKKI GEMMELL No, no, it wasn’t my mother’s case at all. I’m Noted. But neither was pain either. 117 just saying that her death was lonely. 118 TONY JONES Alright, OK. We tried the experiment. Noted. 119 NIKKI GEMMELL I don’t know that it worked. (LAUGHS) Noted – she ruined it. TONY JONES Partial success. Our next question comes from He is right – Nikki ruined it. 120 Joshua Armstrong.

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Annexure 47.: The “Slippery Slope”: Victorian Majority Final Report and “No evidence” WHY THIS IS SO IMPORTANT

1. I say that this issue is so vital to consider because it is fatal to the whole scheme, argument, regime for euthanasia in any of its forms if it can be shown that there is a slippery slope happening. If it exists, then the concerns are legitimate and the proper response is to say “no” to euthanasia. For this reason, proponents of euthanasia will do all that they can to deny the existence and problem of the slippery slope. This will force them to deny the obvious and create contorted constructs of a contrived concept of reality in order to dismiss the calamitous consequences of the laws that they propose.

2. The breadth of the issues that are included in identifying the existence and reason for concern about the slippery slope is reason why Mr Francis, in is overall thinking and how is thinking is expressed in a written form to the Victorian Committee in the Francis Submissions show why his view is what I have repeatedly asserted as being very “narrow”.

TWO BROAD QUESTIONS

3. There is two debates that revolve around the concept of the slippery slope, these are as follows:

(a) does the slippery slope exist or is it just something that people make up to make others worried;

(b) if it does exist, then, how does one describe it/ how do we define it?

4. I hold the opinion that the slippery slope:

(a) exists;

(b) is lethal;

(d) is seen in the people’s action;

(e) is seen in people’s lack of concern, people’s apathy and willingness to give killing a social status and to give unlawful killing accommodation,

DOES THE “SLIPPERY SLOPE” EXIST?

5. In answering the question as to the existence, or not, of the slippery slope, there are two good competing arguments,

First example: The Mulino Minority Report

6. I agree with the following comments in the Mulino Minority Report

Physician-assisted dying in Belgium is an example of informal slippage in the scope of the law. In his expert review for the Canadian Attorney-General, Professor Montero found that:

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The Belgian legislator clearly intended to exclude physician-assisted suicide from the scope of the Act on euthanasia. This intention was criticized and debated extensively when the Act was being developed. A number of amendments were introduced to incorporate physician-assisted suicide into the scope of the Act, but they were all rejected to the Conseil d’Etat’s astonishment.

After the Act was passed, parliamentarians deemed it necessary to propose bills to amend the Act on euthanasia to include physician-assisted suicide performed under the same conditions as those applicable to euthanasia. To them, it is clear that physician-assisted suicide is not covered by the Act and therefore constitutes an illegal practice within the meaning of the Act as it is currently written.

Second example: Andrew Denton and the slippery slope

7. In my respectful submission, the Committee in determining what safeguards are going and are not going to work need to understand that the greatest safeguard is honest people, and, that:

(a) Honest people are few and far between; and

(b) Honest people will compromise themselves.

8. Mr Denton seeks to establish himself as the mouthpiece of the pro-euthanasia and uplifts the sufficiently and trustworthiness of the safeguards that exist to manage euthanasia. Indeed, he also goes on the attack asserting that Catholics are excessively worried about the lack of safety and abuse that will occur. However, despite his knowledge of the issues in Belgium, which should have allowed him to point out the same deficiencies of this report for not considering Belgium other than in the Mulino Minority Report, he stayed silent, and affirmed the “no evidence” of the slippery slope when speaking to the NPC. This is what he said about there being no evidence about the slippery slope:

Myth 1. The slippery slope.

The idea being that, once you write a law to assist people to die, there is no way of controlling it. Let me take that face on. It’s such a potent and alarming proposition, I searched assiduously for credible evidence of it in countries with assisted dying laws - and found none.

Nor did the Victorian Committee, which travelled overseas to the same countries to speak with doctors, medical and legal experts, palliative care specialists, disability rights groups, and opponents of these laws, to see how they were working. Instead, they found:

rigorous safeguards, monitoring procedures and high levels of compliance sitting within robust regulatory frameworks focussed on transparency, patient-centred care and choice.

Instances of assisted dying are rare, they reported, and assistance in dying is, in the vast majority of cases, provided to people in what would otherwise be the final weeks of their lives.

They concluded: We found no evidence of institutional corrosion or the often cited ‘slippery slope’.

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Neither did the Quebec Select Committee before them, which spent two years on its own investigation before recommending for a law on assisted dying. It reached the same conclusion as Victoria: no slippery slope … and tiny numbers of people using the law.

The numbers? In The Netherlands, according to official data accepted by their Parliament, those assisted to die comprises less than 4% of all deaths each year. In Belgium, it’s less than 2%. And in Oregon, remember, it’s less than half of one percent.

In all three places, after decades of operation, public support for these laws is in excess of 80%; opposition under 10%. All these numbers have been stable for many years.

So let’s say it clear, and move on: no slippery slope.

9. There is actually one clear incorrect issue, the Committee did not travel to the “same countries” as they did not study Belgium. So Mr Denton who acclaims all the safeguards, actually is factually wrong in this commentary about safeguards. That does not build confidence in his assertions that the safeguards will work perfectly.

10. To make matters worse, Mr Denton then throws in some self serving statistics about Belgium, not mentioning new laws that broadened the ambit of the original euthanasia laws which in itself is a slippery slope, as if to convey that Belgium was considered by the Victorian Committee when it was not.

11. In episode 13 of “Better off dead”, Mr Denton includes the following:

Andrew Denton: I’m in Sydney Town Hall listening to a debate about voluntary euthanasia. Arguing the case for is the well-known Australian ethicist, Peter Singer. And against is the Archbishop of Sydney, the Most Reverend Anthony Fisher.

Anthony Fisher: There is bracket creep in euthanasia. First we’re told it’s for competent informed consenting adults only. Then it’s extended to the incompetent, the unconscious, babies.

Andrew Denton: As Fisher speaks it soon becomes clear that what I’m listening to is a master class in FUD – fear, uncertainty, and doubt – the seeds sown by opponents of assisted dying to great effect down the years.

12. Again, this FUD was repeated, this time to the NPC where Mr Denton stated as follows:

Citing elder abuse and suicide contagion as other possible arguments, she went on to say: “You only have to convince legislators that they don't want this bill. You don't have to win their hearts and minds; all you have to do is get them to say, ‘Not this bill’, and then you have got your win”

I call these tactics FUD….Fear, Uncertainty, Doubt. Sow one seed of FUD and you can reap a harvest of political inaction. Just scare the hell out of people. Without ever engaging with the evidence accumulated over 20 years in countries with assisted dying laws.

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13. If Mr Denton had considered the evidence of the Mulino Minority Report and not considered self serving evidence when he visited Belgium, he would know that he:

(a) Should not have been dismissive of Cardinal Fisher;

(b) Should have questioned why the Committee did not consider Belgium, perhaps because the evidence that they ignored would have been unfavourable and therefore:

(i) Shown the Committee they should not have euthanasia;

(ii) That FUD is not mere FUD and is real, tangible and actually happening;

(i) An example of a person’s mind who is oblivious or ambivilant to the risks;

(ii) An example of how the slippery slope becomes manifest in reality:

(1) First, people’s consciences are turned off;

(2) Second, people start to ignore what they see and know about; and

(3) Finally, people actively particulate and agree to more and more lax laws and less and less safeguards and wider and wider ambit of the laws.

14. Mr Denton is living, speaking, breathing proof that people can be corrupted and make the decisions to support euthanasia even when they know it is not safe.

15. How much more the doctors, family members and anyone else who seeks to gain from the person dying will they compromise themselves.

16. It is not just me who says this, Mr Denton even interviewed people who hold similar concerns to me that the laxity will create a culture of permissiveness – but Mr Denton merely calls all reason yet more FUD. He simply does not want to listen, and says all the safeguards can protect the vulnerable against the manipulative schemers who will have much to gain by the death of the vulnerable. Once again, from episode 13 of Better off Dead:

Alex Schadenberg: Once you legalise it, some physicians are going to say "I agree your life is not worth living. That's reasonable to me", but you can't separate the prejudices or the attitudes of the person when they're agreeing that your life is not worth living.

Andrew Denton: That’s Canadian Alex Schadenberg. And this is Father John Fleming who played an important backroom role in overturning the Northern Territory’s euthanasia law in 1997.

Father John Fleming: We have to penetrate into the mentality that gives rise to it, and that is that there are some lives that are simply not worthy to be lived...

Andrew Denton: Sometimes, key phrases are regularly trotted out. Father Fleming again.

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Father John Fleming: "I begin to suffer with my mother who is seriously ill’, and then it is, "Please put Mum out of my misery"…

Henk Reitsema: The temptation can be there to try and put somebody else out of our misery because it is so hard to see them.

Andrew Denton: Which brings us back to the Most Reverend Anthony Fisher.

Anthony Fisher: Putting Granny out of her misery so easily becomes putting Granny out of our misery.

Andrew Denton: It’s FUD. Fear. Uncertainty. Doubt. Words and phrases that, taken at face value, sound alarming.

The “slippery slope” is closer to home than one thinks

17. The Committee needs to understand what the slippery slope “is” and more importantly what it “is not”.

Not one aspect but, but aspects of the slippery slopes

18. The Committee has included the following definition of “Slippery slope” in the Final Report.

Slippery slope Legalising assisted dying will create a slippery slope, particularly to involuntary assisted dying, in which safeguards are eroded, either in practice, or by further changes to law. People beyond the initial scope of assisted dying law will die as a result.

Once assisted dying is morally acceptable, such extensions will be difficult to resist. Assisted dying should not be legalised because it is impossible to guard against these risks.

19. In my view, there are actually three (3) aspects to the slippery slopes to be considered as follows:

(a) The “substantive slippery slope” being and including all of the following:

(i) New categories of people being permitted to be killed through euthanasia; and

(ii) Greater numbers of people being killed as a result of new categories of people being permitted to be killed through euthanasia.

(b) The “administrative slippery slope” being and including all of the following: and

(i) Laws that do not directly enable euthanasia being downgraded or not considered;

(ii) Legal principles that do not directly enable euthanasia being downgraded or not considered; and

(iii) Governments and government departments who do not:

(1) audit euthanasia practitioners, deaths, records of consent; and

(2) report

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 225

accurately and do not care about doing so.

(i) People turning a blind eye to euthanasia abuses;

(ii) People not caring if laws are not enforced;

(iii) People not caring if legal principles are not followed;

(iv) People relaxing definitions of murder;

(v) People relaxing attitudes towards suicide being bad:

(1) for people who commit it

(2) for the family of people who commit it; and

a. for society as a result of people committing suicide;

(vi) People who willfully ignore the affect on young people when old and sick people commit suicide; and

(vii) That killing a few people outside the legislation is okay as long the legislation works reasonably well and do not consider or care that people have been unlawfully killed and no one is accountable for that.

The threshold should not be impossibly high so as to make the definition impossible to actualize

20. In my opinion, the definition of the slippery slope, or any one of the three slippery slopes, does not require either:

(a) Numerous, obvious and potentially new risk creating changes in the law; and/ or

(b) A million people to die

before the definition is shown to have become a practical, tangible and visible reality and any definition that required evidence on such a grand scale is ignorant, meaningless and self serving.

21. In addition, one must, and the Committee should have, looked to receive and consider evidence that is likely to suggest that the slippery slope has happened and how it happened. The Majority did not do this.

What should be considered to determine if the slippery slope exists

22. In my respectful submission, the following details must be considered in determining if there is a slippery slope.

(a) We are considering legislating to kill people when previously there was no legislation – nothing will have become something;

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(b) We have seen pro-euthanasia organisations down play overseas evidence of increase in deaths by euthanasia as each year comes and goes;

(d) We have seen pro-euthanasia organisations belittle the number of deaths that were unlawful in jurisdictions where euthanasia is permitted, as if a small margin of error does not matter as it is only a small margin;

(e) We have seen pro-euthanasia organisations assert that children are not at risk in overseas jurisdictions where children were once omitted from permissible euthanasia and now they are permitted to be euthanaised – they belittle the fact that there has been an extension asserting safeguards are in place so all is okay – and at the same time, they say there is no increase in the scope of euthanasia; and

(f) The attitudes of atheists who are driving this debate for the pro-euthanasia side have a wide range of motivations and aspirations which will all but guarantee that at the bottom of the slippery slope is where Australia ends up – and they will call that an achievement to be proud of.

23. In my respectful submission, I would be worried and society should be worried if euthanasia is brought in to Australia and it is found that unlawful deaths have been taking place under euthanasia laws, and then the politicians of the day argue with each other like they do on other laws in the following way:

Government Politician “Well, the deaths are inside accepted parameters of world best practice. We are seeing less deaths here in Australia than overseas in comparable jurisdictions”

Opposition Politician “But people are dying, it is a system out of control”

A GRAPHICAL REPRESENTATION OF THE SLIPPERY SLOPE 24. For anyone who is a graphical learner, not a words learner, I have prepared a graphic to summarise the complex issues in this annexure and the complex issues regarding the “slippery slope”/

25. This graphic is what Mr Denton, Mr Francis, the Honourable Stephanie Key, the Honourable Mark Parnell and others would call “FUD” (or use words of their own to the same effect). I disagree with them.

26. This graphic is what the majority of the Parliament of Victoria said that there was “no evidence” as to the existence of – without looking at Belgium and without considering all of these issues simultaneously.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 227

A Graphical Representation of the “Slippery Slope” – for Picture Based Learners. Stage Graphic Substantive Slippery Slope Administrative Societal Slippery Slippery Slope Slope Staying 1 Doctors not permitted to No laws exist to Society rejects at the practice medical killing. kill anyone. euthanasia and sees top pain as party of dying and not worth the risk of legalising killing.

Top of 1 Adult (18+) only Laws changed to Society allows the 2 Voluntary only introduce new euthanasia. Slope 3 Death imminent categories. Society expects 4 Doctor administered only Reporting is 100% doctors to be 100% compliant (never compliant (never achieved to date). achieved to date). Non compliance is murder. Descend 1 Adult (18+) only Laws changed to Society allows new ing 2 Voluntary only introduce new categories. down 3 Death imminent categories. Protestors are the 4 Doctor or nurse administered Judges give liberal criticised. slope 5 Children 11 - 17 interpretations to Omissions from 6 Non-curable disease 6 laws. compliance are months left to live. Government accepted if not too 7 “Suffering” is considered a departments give major/ many. reason. Suffering is considered wide definitions to Technical non- narrowly at first. killing. compliance are not Reporting not seen as murder. audited so rigorously. Bottom 1 Adult (18+) only Laws changed to Killing seen as good. of the 2 Voluntary an option. introduce new Killing seen as slope 3 Death imminent categories beneficial to society. 4 Doctor or nurse administered Judges give liberal Killing seen as 5 Children 11 - 17 interpretations to beneficial to the 6 Non-curable disease with laws. deceased. years left to live. Government The living who are 7 “Suffering” is interpreted departments give “haves” determine more widely to include lower wide definitions to that people who are thresholds to qualify as killing. “have nots” do not suffering entitling euthanasia. have a happy life 8 Non voluntary: Babies 0 – 1 and deserve to die. year/ others without capacity No one cares about 9 Depression compliance with the 10 Alcoholics law. 11 Prisoners life sentence 12 “Completed life”

13 Tired of living 14 Free choice All these three (3) aspect of the slippery slope work together and are simultaneous.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 228

27. When one considers the multi-dimensional aspect of the slippery slope as I have outlined, one can see that the dismissive attitude towards the slippery slope argument in the Australian Human rights Commission Issues Paper dated May 12 titled Euthanasia, Human Rights and the Law, is simply inappropriate. I am not a member of the Australian Christian Lobby, however, I do very much agree with their concern.

Slippery slope

The Senate Inquiry heard from a number of groups warning against the ‘slippery slope’ effect that would result from the enacting of active voluntary euthanasia legislation. Specifically, the concern is that the legalisation of voluntary euthanasia in terminal cases would then lead to the practice of other forms of euthanasia such as involuntary euthanasia or voluntary euthanasia in non-terminal cases. For example, the Australian Christian Lobby (ACL) stated that:

[W]e have clearly seen the slippery slope well and truly in action in Holland and in Belgium, in particular, where we have seen people being euthanized without their specific consent. That is not voluntary euthanasia.

However, many submissions countered this view. For example, Professor Margaret Otlowski argued that:

The most commonly cited objection to the legalisation of active voluntary euthanasia is the 'slippery slope' argument: that the legalisation of active voluntary euthanasia would lead to widespread involuntary euthanasia and the termination of lives no longer considered socially useful. This is, however, a completely unsubstantiated argument. The 'slippery slope' argument is typically made without regard to the risks of abuse or other problems involved in retaining the present law.13

Similarly, Christians Supporting Choice stated:

From my understanding, in Oregon they have had this legislation for 17 years and they have done studies which have shown that this slippery slope you are referring to does not exist. It is a scaremongering tool used by those who are ideologically opposed to the proposed legislation and who will do anything they can to stop the law. We in Christians Supporting Choice side with loving compassion and mercy and not with religious dogmatic adherence to a particular point of view…There is no slippery slope.

Further, there were criticisms that the slippery slope argument, in being focused on the potential for active voluntary euthanasia to lead to other, more controversial forms of euthanasia, did not provide a strong argument against the practice of active voluntary euthanasia itself. Mr Peter Short, a man with terminal cancer who appeared before the Committee, argued:

Is it rational to take a position of denying the terminally ill and suffering the choice at the end of their life, because we are concerned we cannot put effective rules around a dying process? We manage road rules, alcohol rules and smoking rules. All are slippery slopes far more difficult and destructive, but all well-accepted in society and in law.

Finally, Dying with Dignity Victoria argued that a ‘slippery slope’ was more likely to occur ‘in an environment where voluntary euthanasia is prohibited rather than [in] a society where a transparent, legislative framework regulates the occurrence.’

28. I consider the comments by dying with dignity to be inexplicable as they are really motivated by expanding the role of euthanasia and are sought to protect doctors as much as possible from prosecution

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 229

CASE EXAMPLE SHIRLEY JUSTINS, EXIT INTERNATIONAL

4. In this example, is a clear case of abuse for financial gain. This example was obtained from the Real Dignity Tasmania website, in a In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 by Dr Kristi Giselsson, Doctor of Philosophy and Honorary Research Associate, at the University of Tasmania

The reality of George’s latter view is confirmed by a recent case she cites, where an Australian woman, Shirley Justins, was convicted as being an accessory to the unlawful death of her de-facto husband, Graeme Wylie. Wylie, who was suffering from dementia, had just the week previously changed his will, leaving Justins more than two million dollars. Justins was also alleged to have had a lover a Germany, and, despite the fact that the pro-suicide group Dignitas had declined Wylie’s request for assisted suicide on the grounds that they had uncertainties concerning his mental state, was eventually assisted by Philip Nitschke’s group, Exit International. Even after the case verdict was given, Nitschke still defended the unlawful death, despite not having any knowledge of Wylie’s medical records.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 230

Annexure 48.: Workplace Health and Safety laws Part 1: Victoria 1. I do not believe that the safeguards that are said to be so “robust” are going to be “robust” at all. I expect that there will be administrative, willful (by the medical practitioner) and family coercion.

2. Even if one believes that there will be no unlawful deaths, which I do not, sheer risk and the consequences of the new legislation should make people “eliminate” the risk in the same way that all other workplace risk is needing to be eliminated not merely controlled where the consequence is life threatening, let alone guaranteed as it is with euthanasia. The fact that some people would deviate from this principle I submit is an example of slippery slope in action.

3. In my view, anywhere where a doctor is working, he or she is in a workplace and bound by WHS legislation for their state or territory. In Victoria, where the relevant provisions of the Workplace Health and Safety Act 2004 states

Part 3—General duties relating to health and safety

Division 1—The concept of ensuring health and safety

20 The concept of ensuring health and safety

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

4. In my view by simply not enacting euthanasia laws, it will be easy and cheap to eliminate the risk In relation to cost, I believe there would be a cost saving to eliminate the risk – unless people want to raise an argument that it costs more to keep people alive than to have them killed which would be another instance of the slippery slope where society only values the ill and the elderly in terms of dollars and not the value of human life.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 231

Annexure 49.: Workplace Health and Safety laws Part 2: New South Wales 1. I do not believe that the safeguards that are said to be so “robust” are going to be “robust” at all. I expect that there will be administrative, willful (by the medical practitioner) and family coercion.

3. In my view, anywhere where a doctor is working, he or she is in a workplace and bound by WHS legislation for their state or territory.

4. In New South Wales, where the relevant provisions of the Workplace Health and Safety Act 2011 states

WORK HEALTH AND SAFETY ACT 2011 - SECT 18

What is “reasonably practicable” in ensuring health and safety

18 What is “reasonably practicable” in ensuring health and safety

In this Act, "reasonably practicable" , in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

5. In my view by simply not enacting euthanasia laws, it will be easy and cheap to eliminate the risk In relation to cost, I believe there would be a cost saving to eliminate the risk – unless people want to raise an argument that it costs more to keep people alive than to have them killed which would be another instance of the slippery slope where society only values the ill and the elderly in terms of dollars and not the value of human life.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 232

Annexure 50.: Workplace Health and Safety laws Part 3: South Australia 1. I do not believe that the safeguards that are said to be so “robust” are going to be “robust” at all. I expect that there will be administrative, willful (by the medical practitioner) and family coercion.

3. In my view, anywhere where a doctor is working, he or she is in a workplace and bound by WHS legislation for their state or territory.

4. In South Australia, where the relevant provisions of the Workplace Health and Safety Act 2012 states

18—What is " "reasonably practicable in ensuring health and safety

In this Act—

"reasonably practicable", in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 233

Annexure 51.: “Go Gentle Australia”. 1. I would like to respond to all of the posts included on the Go Gentle Australia website. I have had to limit myself. In my respectful submission, the position taken and espoused by Mr Denton and Go Gentle are not correct. I set them out for further consideration by the Greens and all people. It goes without saying, that in my respectful submission, anything that Go Gentle Australia assert which is based on the Final Report is an invalid assertion and cannot and must not be accepted as valid or a reason to support Euthanasia.

2. It was not until one evening in the second half of 2016 when I watched the televised speech of Mr Andrew Denton’s (Mr Denton) to the National Press Club (NPC) on the issue of euthanasia that I came to realise this was a contentious issue in Australia. I expect that for many opponents of euthanasia, my experience would be replicated in their lives.

3. When I heard Mr Denton give his speech to the NPC I was totally shocked at this unilateral dismissal and devaluation of people who hold faith based attitudes to oppose euthanasia - saying that we should stand aside. Mr Denton’s degradation of faith based attitudes, Catholic, non-Catholic and even non-Christian based faiths and labelling us as scare mongers, what he conveniently classified as “FUD” and he said:

“I call these tactics FUD….Fear, Uncertainty, Doubt. Sow one seed of FUD and you can reap a harvest of political inaction. Just scare the hell out of people. Without ever engaging with the evidence accumulated over 20 years in countries with assisted dying laws.”

4. Is an attitude that the Committee has replicated in putting Christian and faith based people’s concerns to one side, and, ignoring the evidence that there are real issues of people being killed, and, the permissive laws have and will continue to see people being killed unlawfully and take the option of suicide more easily and of course unnecessarily.

5. The pointlessness of the Victorian Committee’s report has also been highlighted by Mr Denton’s speech to the NPC, where he said under the heading “”Myth 1, the Slippery Slope”:

“Nor did the Victorian Committee, which travelled overseas to the same countries to speak with doctors, medical and legal experts, palliative care specialists, disability rights groups, and opponents of these laws, to see how they were working. Instead, they found:”

Strictly speaking, the Committee did not “travel” to Belgium. It had a short teleconference at the end of the series of hearings. It did not “eyeball”, ie see for itself, what is happening in Belgium. It took some reports, but construed those reports in the Majority Report’s favour.

6. Where community attitudes are influenced by “Go Gentle” and Mr Denton, and, polls are taken based on people who have their opinions tainted by the findings of the “Victorian Committee”, Mr Denton or Go Gentle those tainted opinions are worthless.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 234

7. It appears to me, and I submit reasonably so, that any presentation of statistical and theological reasons from nay sayers to euthanasia legislation will be classified as perpetrators of “FUD” and have themselves and their arguments ignored and sent out into the cold. This is empirical evidence that pro-euthanasia supporters and practitioners cannot be trusted to act without bias or ideology in influencing legalising and unlawfully practicing (killing) patients (also called people) for self-centered motives (financial, ideological etc).

8. As will be set out below Mr Denton has researched Belgium, and, knows the problems that exist there. For some reason in his speech to the NPC he affirms the “no evidence” of the slippery slope mantra of the Majority Report in the Final Report. By taking this action, and then saying that there are more safeguards in the proposed Victorian legislation and proposed legislation in other states (as he does on the Go Gentle Australia website comparing “then” and “now”) he has shown that within his own actions and words that the slippery slope has is what we are going down – fast I may say. He has compromised his own integrity by turning a blind eye to the facts – which is what doctors and others will do to achieve their own desired outcomes.

9. After his speech to the NPC, in question time, Mr Denton considered that people had a negative reaction to the actions, attitudes and deaths attributable to the philosophy of Dr Philip Nitschke. He made reference to people not liking him personally, and, that Dr Philip Nitschke did not care. Mr Denton effectively identified Dr Philip Nitschke as being bad public relations for the euthanasia movement.

10. Mr Denton when speaking to the NPC outlined how he wanted to be different to Dr Philip Nitschke and have people accept that he and Go Gentle Australia are different and they have a different outlook and attitude etc. In my view, there is absolutely no difference in the policy of Dr Philip Nitschke and Go Gentle Australia and Dying with Dignity and “SAVES” and other likeminded organisations.

11. The only difference between Dr Philip Nitschke and the more recent campaigners is that they are:

(a) Trying to have a friendly image;

(b) Relying more on alleged human rights;

(c) Trying to distance themselves from “baby killer” elements of the atheistic humanist pro-euthanasia lobby – Mr Peter Singer, Dr Philip Nitschke and all those in Belgium including Mr Wim Distlemans;

(d) Using more testimony of personal suffering;

(e) Seeking celebrity endorsement for their cause;

(f) Using nice words to make the alternative to palliative care sound more palatable but asserting that all will be okay with safeguards and no stigma of a person committing suicide; and

(g) Continuing to criticise Christians and conservatives and assert that we no longer have a right to press moral issues in determining this issue.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 235

12. In my respectful submission, this issue of trying to gloss up can be seen further in the attitude of Ms Shayne Higson, who is a photographer and a candidate for Dr Philip Nitschke “Voluntary Euthanasia Party in the 2013 Victorian State election who is trying to influence the New South Wales parliament by asserting that euthanasia is a “serious public health issue”:

Go Gentle spokeswoman Shayne Higson said the group was glad to hear Mr Ajaka has an open mind but that politicians need to move on euthanasia policy.

"This is a serious public health issue and it is no longer acceptable to oppose these laws on moral or ethical grounds," Ms Higson said on Monday.

"All members of parliament should be willing to approach the upcoming debate on assisted dying legislation with an open mind and be prepared to consider all the evidence."

Per Rebecca Chirichiello Australian Associated Press in her article Euthanasia advocate rejects moral argument January 16, 2017 6:26pm http://www.news.com.au/national/breaking-news/nsw-minister-not- convinced-on-euthanasia/news-story/79ee327cd3d862c880c07f2b12101ae3

(Emphasis Mine)

13. The above comments from Ms Higson were in the context of the NSW Minister for Ageing Minister John Ajaka, who is a lawyer, stating that he is willing to look at the evidence but that the pro-euthanasia lobby not having yet made out its case. I sure hope that the Final Report is not relied on by Mr Ajaka or anyone in New South Wales or anywhere in Australia as evidence for pro-euthanasia.

14. In my respectful submission, the lack of consideration of evidence by the majority of the Committee is reasonably able to be seen by any objective onlooker as being an attempt to likewise “gloss up” euthanasia. Even then, the Committee did not even do what Ms Higson asked, they did not consider “all” of the evidence.

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response

[1] Intro Surveys show that around 75% of Australians support This is unreliable. 75%, is a dubious the legalisation of voluntary euthanasia to allow for figure. better choice at the end of life, but despite this there’s still no law.

[2] Intro Here's our guide to some of the myths and These are not myths, and Andrew misinformation that surround the debate for voluntary Denton should not be so dismissive. laws. This misinformation has encouraged politicians This is not misinformation and not to act in a way voters clearly want them to. Andrew Denton should not be so dismissive.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 236

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response

[3] "Palliative care Australia has one of the best palliative care systems in We should be proud. can alleviate all the world, and we should be proud of it. But even What is the context of this suffering..." Palliative Care Australia admits that it “cannot relieve admission. This admission does not all pain and suffering even with optimal care in itself justify the change. This quote is misused for self serving purposes.

[4] "Palliative care ”For that small percentage of patients who they can’t The percentage is small, small, can alleviate all help, the suffering at the end of life can be savage. small. Hear that, small. suffering..."

[5] "Palliative care The legalisation of voluntary euthanasia would give Choices have consequences. can alleviate all patients experiencing such suffering another choice. It Just as it is overseas, just as it is in suffering..." should be used here just as it is used overseas: An Belgium? I hope not! option of last resort –decided upon by both the patient and their doctors – when all other treatments have The last resort rule is not always failed. practices, enforced or even contemplated.

[6] "It's a slippery Opponents argue that once voluntary euthanasia Yes, we do argue, and we are slope..." legislation is introduced, it will inevitably be correct. broadened to apply to those for whom it was never This is not entirely what we call the intended. They call this the ‘slippery slope’. slippery slope. Just when one person dies unlawfully, that is already an example of the slippery slope coming into effect. Just one.

[7] "It's a slippery Over the last decade, numerous, wide-ranging, official I absolutely cannot believe that the slope..." inquiries into these laws have rejected allegations of Victorian report is being relied the ‘slippery slope’ - most recently, a cross-party upon. Victorian parliamentary inquiry. In its June 2016 SO what it took 10 months, that report, handed down after 10 months of investigation, does not meaning anything. Down they found “rigorous safeguards, monitoring the wrong track for 10 months – at procedures and high levels of compliance” and “no tax payers’ expense. evidence of institutional corrosion or the often cited ‘slippery slope’”. “No evidence” – no investigation of Belgium. Did not want to see any evidence.

[8] "It's a slippery Often opponents refer to the European laws, especially The Majority Report did not slope..." in Belgium and The Netherlands, to suggest that laws consider Belgium. Andrew Denton written to apply only to the terminally ill have since should not try and say that it did, been broadened to provide access to those without terminal illness. This is incorrect – the laws in Europe were never written purely for the terminally ill, but for

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 237

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response those with a ‘medically futile condition that causes unbearable suffering’.

[9] "It's a slippery The overwhelming majority of people who use these The illness they have is not relevant. slope..." laws have cancer, but they also allow people with degenerative and chronic illnesses, such as Motor Neurone Disease, Multiple Sclerosis, and Chronic Rheumatoid Arthritis, to ask for help to die. In very rare instances, people with long-term and extreme psychiatric suffering have also been helped. All of this is consistent with how the laws in Europe were written. In the USA, access to voluntary euthanasia is restricted to people with a terminal illness and 6 months or less to live. In almost 20 years of operation this law has never changed.

[10] "The disabled This argument suggests that people with disabilities The evidence is that people are will be will be placed at risk. This is not true. Voluntary being euthanized in more and more vulnerable..." euthanasia laws come with strict eligibility criteria and categories. Especially in Belgium. strong safeguards to ensure they apply only to those for "The disabled whom the law is written. To qualify a person has to will be have to have an extreme medical condition which, in vulnerable..." the assessment of two doctors, independent of each other, is clearly leading to their death and which can no longer be treated in a way that will meaningfully ease their suffering. Disability, on its own, does not make a person eligible under this law.

[11] "The disabled Further, the request for voluntary euthanasia cannot be Strong theories, so many promises, will be made by anyone but the patient, who must be deemed so many sweet encouragements. The vulnerable..." to be mentally competent. Exhaustive, peer-reviewed reality is that doctors are, even as evidence about how these laws operate overseas has admitted in the Final Report, killing not shown any increased threat to people with a people who are almost dead disability under them, a fact confirmed by leading unlawfully. This law will simply kill disability rights groups in those countries. more and legitimize the current killing.

[12] "The elderly The elder abuse and coercion argument suggests that Strong theories, so many promises, will be abused family members or carers could pressure an elderly so many sweet encouragements. The and coerced..." patient to request assistance to die, for instance so that reality is that doctors are, even as they may access an inheritance or the family estate admitted in the Final Report, killing sooner. Voluntary euthanasia laws come with strict people who are almost dead eligibility criteria and strong safeguards to ensure they unlawfully. This law will simply kill apply only to those for whom the law is written. more and legitimize the current killing.

[13] "The elderly To qualify a person has to have to have an extreme Strong theories, so many promises, will be abused medical condition which, in the assessment of two so many sweet encouragements. The and coerced..." doctors, independent of each other, is clearly leading to reality is that doctors are, even as their death and which can no longer be treated in a way admitted in the Final Report, killing

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 238

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response that will meaningfully ease their suffering. There is far people who are almost dead more involved in the decision than a patient merely unlawfully. This law will simply kill requesting it. The opinion of medical professionals that more and legitimize the current the patient’s condition meets strict criteria is required. killing. Failure by doctors to follow the law means they risk losing their license or going to gaol.

[14] "The elderly As with the slippery slope argument, research in The elderly are those who will be will be abused jurisdictions where voluntary euthanasia is legal the most subject to the influence. and coerced..." demonstrates no evidence of elder abuse as a result of Their demise will be unrecorded these laws, a fact confirmed by leading elderly rights other than that they are death and the groups in those countries. relatives then make an application for probate.

[15] "Suicides will This argument is known as suicide contagion, which The trend is that more suicides will increase..." suggests that the legalisation of voluntary euthanasia take place, the increase in euthanasia will lead to an increase in suicides. Suicide is entirely as suicide has increasing annual distinct from voluntary euthanasia. The first is an lamination. irrational impulse, acted on in secret, in response to a problem that, with treatment, could most likely be fixed. The second is a rational response, taken in consultation with doctors and family, to a condition that cannot be fixed.

[16] "Suicides will This difference was clearly understood by the Chief This is a ridiculous comparison, increase..." NY medical examiner, Charles Hirsch, when there is simply no factual investigating the deaths of office workers who jumped comparison, these are the reasons from the Twin Towers on 9/11. Faced with a terrible why: choice – a slow, agonizing death by fire, or a quick Entirely physical no aspect of illness death by jumping – many chose to jump. Seeing this as a rational choice to avoid needless suffering, Hirsch No physical options out of the refused to classify their deaths as ‘suicides’. physically dangerous situation Came upon them suddenly, not over time Waiting for help to arrive not an option Treating with drugs not possible for that situation, as the situation was not physical pain related If there was an option for waiting for recuse – which I deny – panic would have taken over so they did not make decisions based on cool, calm rational thinking. Go Gentle Australia should really be criticized for saying something so damn dumb.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 239

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response This comparison is offensive to those who died and their families. Now, where have we heard that before (see below)

[17] "Suicides will There is no credible evidence of increased suicide rates Go Gentle and the Committee’s use increase..." as a result of euthanasia laws overseas of “No Evidence” is no longer trustworth. That he has said “credible” is an admission that there is some evidence, so why is that evidence not credible What is faulty about it.

[18] "Children are at Opponents to voluntary euthanasia laws often refer to There are two issues involved in risk..." Belgium, which does have legislation allowing a child this, and Go Gentle’s statement in a 'medically futile condition', and who is confuses and blends them. experiencing constant and unbearable suffering that First issue: Belgium cannot be alleviated, to request voluntary euthanasia. Belgium have laxed their laws from the original position of children not being permitted to be euthanatized to now being permitted to be euthanized. Does that mean they are at risk? I think it does. Second issue: Infnaicide Even humanists in Australia believe in infanticide. Even Peter Singer believes in infancicide. Peter Singer was nominated for Australian of the Year, despite his support for infancicide.

[19] "Children are at However, this law carries even greater safeguards, and Strict is getting more and more lax risk..." stricter criteria, than the already strict laws relating to and the atheistic ethos and liberalism adults. of the nations that support euthanasia is permitting the laws to be broken and not enforced.

[20] "Children are at Along with two doctors, a child psychiatrist has to Go Gentle Australia are again risk..." confirm that the child knows what they are requesting. ignoring the fact that there was once The child’s parents must also participate in, and a prohibition on killing kids who are approve of, the request. Passed into law by a two-thirds under 18 years old, and, now that majority of the Belgian parliament, this is a recognition has changed – a slippery slope that even children can die from illnesses which, in spite which Go Gentle Australia deny was of the best treatment, cause terrible suffering. taking place – and they try to justify the new category of killing saying

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 240

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response there is safe guards. They again ignore the killing of kids.

[21] "Children are at To date, the law has only been used once. So they did originally in Belgium. risk..." All the laws being proposed in Australia apply only to adults.

[22] "Doctors are It is correct that the Australian Medical Association is This is misleading by Go Gentle opposed..." opposed to voluntary euthanasia laws though they are Australia. currently reviewing their position. However, the AMA This is a misleading statement that represents only 29% of Australia’s doctors. tries to conjure up the idea that 29% v 71% split of opinions amongst those in the medical field. The reality is that one also needs to consider those doctors who are not aligned with the AMA. More misleading information from Go Gentle Australia. Self serving misleading information.

A serious question must be asked, is the support for new laws for the benefit of the patients, or the peace of mind for the doctors and nurses who inject or recommend the lethal drugs so they do not have any criminal liability.

[23] "Doctors are There has never been a comprehensive survey of The sample sizes are usually small. opposed..." Australian doctors on the issue, but the few that have The doctors are probably wanting to been done show close to 50% support for a law for cover their own past actions of assisted dying. Some doctors have left the AMA killing paitents. because of its opposition to voluntary euthanasia. Others, such as the ‘Doctors 4 Voluntary Euthanasia’ That they leave the AMA shows group strongly support this Bill. they are obsessed with wanting to be permitted to kill and will not submit to a governing body supervising them. So what if Doctors 4 Voluntary Euthanasia support the bill, that means their medical career is taking them in that direction and it is their obsession and legacy to change the law. It is also important know how many doctors there are in this group. Also, if they can make money out of this “procedure” then their opinions

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 241

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response are devalued as interests of their hip pocket not the interests of their patients being put first.

[24] "Doctors will be Voluntary euthanasia is voluntary and is about choice, No one is saying that they are. forced to and this applies to medical professionals as well as to That said, the future may see doctors comply..." patients. By law, there is no mandatory requirement for compelled to do so a doctor, who is ethically or morally opposed to voluntary euthanasia, to assist a patient in their request. I have seen documentaries on bullying in hospitals and I wonder if any junior doctor may be bullied into killing a patient?

[25] "Doctors will be Everyone involved, including doctors and nurses, has No one is saying that they are. forced to the right to opt out at any time. That said, the future may see doctors comply..." compelled to do so I have seen documentaries on bullying in hospitals and I wonder if any junior doctor may be bullied into killing a patient?

[26] "The Church are A 2012 Newspoll survey showed that 88% of In 2012, people did not know the opposed..." Anglicans and 77% of Catholics agreed that a doctor issues. I did not know the issues. should be allowed to meet a request from a hopelessly Not Sydney Anglicans I bet. ill patient for help to die. Scripture is opposed to this killing. Why is Go Gentle Australia even mentioning these alleged statistics I question the value of this report. See below.

[27] "The Church are The 2013 ABC Vote Compass policy tool found that In 2013, people did not know the opposed..." out of 1.4 million Australians, 75% supported the issues. I did not know the issues. legalisation of assisted dying for the terminally ill. People hit yes/ no pretty flippantly. It also provided a breakdown based on religion, and the People call themselves catholic and rate of support among Catholic respondents was do so flippantly. 69.8%. I question the value of this report. See below.

[28] "The Church are While the Catholic Church hierarchy is opposed to In 2013, people did not know the opposed..." voluntary euthanasia, it does not speak for a majority issues. I did not know the issues. of Australian Catholics. People hit yes/ no pretty flippantly. People call themselves catholic and do so flippantly.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 242

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response I question the value inferences based on reports cited above. See below.

[29] "‘Terminal’ is 'Terminal' is already a legally recognised term in Raising the issue of “Terminal” is a hard to Australia. Australian insurance companies accept a trick and is misleading and define..." prognosis of less than 12 months to live for the payout deceptive. That is like saying of a life insurance policy. This is a long-standing everyone knows what a “cricket practice and is considered uncontroversial. pitch” is in a game of cricket. The cricket pitch is easy to define. “Terminal” meaning 12 months to live is an easy issue to agree with. The Discussion Paper does not really ask what “Terminal” means. The Discussion Paper asks the following - serious and incurable: Questions to consider: • Is greater specificity required to identify what constitutes a person being at the end of life and, if so, how should that specificity be worded? • How should a ‘serious and incurable condition’ be defined?

[30] "It's what the During World War II, amongst many other atrocities, This is another trick that is Nazis did...” the Nazis conducted a program, described as misleading and deceptive. It is being euthanasia, known as the Aktion T4 program. It was tricky and “technical” with a not voluntary, nor does it have anything to do with specific detail (ie the “Aktion T4 voluntary euthanasia legislation. program”) and saying that euthanasia in Australia will not be Voluntary euthanasia is voluntary, and is about giving exactly the same as that therefore better choice to those who are suffering beyond there is absolutely no comparison. meaningful medical help. The undergirding motive of free killing is the concern not the specific detail. The granting of a self authoritiesing licence to kill, just like the Nazis gave themselves.

[31] "It's what the This choice can only be granted to a person found by This is irrelevant repetition. Nazis did...” medical professionals to fit strict criteria, who is mentally competent, and who has made the request themselves.

[32] "It's what the There is no link between voluntary euthanasia and Nazis prefer open slaughter, what is Nazis did...” what happened in Nazi Germany. Go Gentle’s point.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 243

Rebuttal of what Go Gentle Australia call Myths per “The Facts” Webpage on their website

# GGA “myth” Go Gentle Australia’s Assertion David Foletta’s Response

[33] "It's what the To compare people who are needlessly suffering and Jewish people tend to oppose Nazis did...” seeking the choice of a compassionate end to their life euthanasia, they would not be to the thousands of souls who were murdered in the offended by the comparison. Aktion T4 program is not only a lie,

[34] "It's what the it is also highly inflammatory. and offensive Jewish people tend to oppose Nazis did...” euthanasia, they would not be offended by the comparison.

[35] "It's what the to the memory of those who died and their descendants Jewish people tend to oppose Nazis did...” euthanasia, they would not be offended by the comparison.

DETAILED RESPONSE TO THE VARIOUS REPORTS COMMUNITY SUPPORT FOR ASSISTED DYING

15. I respectfully submit my criticism of the following polls and therefore the legitimacy placed in them by pro- euthanasia supporters. Indeed, two of them are commissioned by pro-euthanasia organisations and only one has a sufficient number of respondents.

Essential Media Communications

16. This was a total of 1006 respondents only. This is what the report says about itself.

About this poll

This report summarises the results of a weekly omnibus conducted by Essential Research with data provided by Your Source. The survey was conducted online from the 23rd to 269h September 2016 and is based on 1,006 respondents.

Aside from the standard question on voting intention, this week’s report includes questions on party leaders, voluntary euthanasia, media laws and recognition of indigenous people.

The methodology used to carry out this research is described in the appendix on page 16.

Note that due to rounding, not all tables necessarily total 100% and subtotals may also vary.

Fairfax Ipsos

17. On 14 November 2014, one Julia Medew ran an article titled as follows “Fairfax Ipsos poll: 3 out of 4 Victorians support people being given assistance to die if they want to” (see http://www.theage.com.au/victoria/victoria-state-election-2014/fairfax-ipsos-poll-3-out-of-4-victorians- support-people-being-given-assistance-to-die-if-they-want-to-20141113-11m854.html )

18. Ms Medew said:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 244

“A Fairfax Ipsos poll of 1000 Victorians conducted last week found 76 per cent supported a change to laws that ban assisted suicide and euthanasia.”

19. Again, a small number of people are being cited as holding the opinion of a nation.

ABC Vote Compass

20. The ABC Vote Compass which claims to have had a sample size of 201,204 respondents, is itself subject to the following issues:

21. It was, by design, held during an election campaign after an election had been declared, with the vote compass being held from 8 May 2016 to 19 May 2016 – where more motivated people will vote for euthanasia when they know that this compass will be influential in assisting their cause;

22. The data is subjected to the following statistics

What's the data you get out of it?

Vote Compass provides insights into what Australian voters think about key issues around the election.

Unlike online opinion polls, respondents to Vote Compass are not pre-selected.

Similar to opinion polls, however, the data is a non-random sample from the population and has been weighted in order to approximate a representative sample.

Vote Compass data is weighted by geography, gender, age, educational attainment, occupation, and religion to ensure the sample's composition reflects that of the actual population of Australia according to Census data and other population estimates.

23. I do not conclude that this sample is informed about all of the issues for the reasons set out in these submissions. If the Committee cannot conclude a true picture, then, how can the people of Australia. This sets a false belief in “safeguard” which I submit will not exist and will not protect people.

24. The ABC’s Clare Blumer in her article “Vote Compass: Aussies want it, but euthanasia still a 'great untouched issue'” dated 26 May 2016, 10:22am spoke about the now Prime Minster Mr Malcolm Turnbull in the following terms

Liberal leader Malcolm Turnbull told ABC Radio last year that end-of-life laws were "fraught with practical difficulties and of course fraught with very significant moral difficulties", and that it was a legislative issue for the states.

25. Ms Blumer also quoted the ABC election analyst Antony Green as saying:

"It's easy to say that people shouldn't suffer in their last days. It's easy to have that opinion," Green said.

"It's much harder to legislate and it's much harder to legislate the safeguards."

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 245

26. I agree with Mr Green on those two (2) statements.

Australia Institute

27. Whilst I believe that the Australia Institute does do a lot of valuable work, this report must be viewed with suspicion for the following reasons:

(a) The Australia Institute has only 1400 respondents to its survey

(b) This survey was produced by an organisation who was founded by Mr Clive Hamilton;

(c) The Council of Australian Humanist Societies, Australian Humanist Convention 2017 will be held in Melbourne - April 7-9, and Mr Clive Hamilton will be speaking at this event;

(d) Mr Peter Singer will also be speaking at this same conference; and

(e) The Council of Australian Humanist Societies have awarded Mr Rodney Symes the award of Australian Humanist of the Year for 2017, for his euthanasia campaigning.

28. I do not say that it is certain that Mr Hamilton and the Australia Institute have skewed the results, however, I view these results with suspicion. Given that the pro-euthanasia lobby is looking for reasons for justify the new legislation based on community support, one needs to be additionally careful when looking for possibly bias survey results. The Australia Institute and Mr Hamilton are certainly entitled to a defence, and, it may be that the philosophy of Mr Hamilton has pervaded all parts of the Australia Institute, so he may influence the result even without directing the result. That is just how easy it is to influence a result.

2012 Newspoll survey

29. I have not been able to find the actual published results for the 2009 Newspoll survey. I have only been able to find a summary of the result from a publication by the organisation called “Your Last Right”. This article says

The primary data reported in this whitepaper was collected via a national public opinion poll conducted by Newspoll on behalf of YourLastRight.com Limited. Residents of all states were included in the sample of 2,521 people. Interviews were conducted by telephone late October through mid-November 2012.

(Emphasis mine)

30. This raises the following issues:

(a) It is a small sample size, 2,521 people only; and

(b) It was commissioned by a pro-euthanasia organisation.

2009 Newspoll survey

31. I have not been able to find the actual published results for the 2009 Newspoll survey. However, I have located an article on SBS, “Support for voluntary euthanasia rising: poll” dated 24 Feb 2015 - 2:41pm (See

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 246

http://www.sbs.com.au/news/article/2009/10/27/support-voluntary-euthanasia-rising-poll) which stated as follows:

The result from the poll, conducted by Newspoll on behalf of Dying with Dignity NSW, saw a five point increase in support from the results of the last survey, conducted in 2007.

The 2009 study, involving 1,201 adult respondents, found 10 per cent of Australians opposed voluntary euthanasia while five per cent were unsure.

Support was at its greatest in Western Australia where 88 per cent of respondents were in favour of voluntary euthanasia, while 87 per cent of South Australians were in favour of it, with six per cent opposed.

NSW residents were 87 per cent in favour, an increase of 12 points on the last survey, while Victoria had 84 per cent support and Queensland 82 per cent.

Dying with Dignity NSW spokesman Robert Marr said the results showed Australians wanted to explore the issue.

"With such massive support across the country, the results of this poll send a message to the country's lawmakers that the time has come for a full debate on this issue," Dr Marr said in a statement.

32. Not only was the sample size a mere 1200 respondents, it was done on behalf of no other than Dying with Dignity. That makes me suspicious of the sample size, the sample members and so forth.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 247

Annexure 52.: Rebutting the Dying for Choice’s (Neil Francis) Submissions 1. In the second half of 2015, Mr Neil Francis (Mr Francis) lodged written submissions dated 31 August 2015 (Francis Submissions) to the Victorian Parliamentary enquiry for an on behalf of dyingforchoice.com (DFC).

2. According to the Final Report produced by the majority of the Victorian Parliamentary Committee, Mr Francis was interviewed by the Committee on 21 October 2015 in Melbourne. See below, extracted from their Final Report.

21 October 2015, Melbourne Name Title Organisation Mr Arnold Bates Chair, Policy Advisory Group National Seniors Australia Ms Vicki Davidson Group Member Mr Alan Castleman Chair Australian Centre for Ms Rebecca Bartel Chief Executive Health Research Mr Norman Geschke OBE Private capacity Mr Neil Francis DyingForChoice.com

3. According to the Francis Submissions, Mr Francis is:

(a) the person who runs DyingForChoice.com;

(b) a past President and CEO of Dying With Dignity Victoria Inc

(d) a past President of the World Federation of Right To Die Societies, Inc; and

(e) a former primary medical researcher.

For me, someone who a relative nobody compared to Mr Francis, I say, the bigger they are, the harder they fall.

Notwithstanding the big resume that is possessed by Mr Francis, with the greatest respect he is quite simply, wrong, very, very, very wrong in the position he takes on euthanasia.

4. As will be seen in the table below, I strongly hold the belief that people who support euthanasia are more likely to be vocal in their personal capacities than people who oppose it. In my submissions to the Ministerial Advisory Panel, dated 5 March 2017, I wrote on that very issue – even before I knew about the existence of Mr Francis, DFC and the Francis Submissions (all of which I only came to the knowledge of in June 2017 in my further research for this letter). In my submissions I wrote as follows:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 248

NUMBERS NEED TO BE BETTER UNDERSTOOD. The following needs be carefully considered by the Committee and has said: A6.1 Submissions received The Committee issued a call for submissions on 30 May 2015. Submissions formally closed on 31 July 2015, however the Committee continued to accept submissions throughout the course of the Inquiry. The Committee received 1037 submissions. Of these, 925 were from individuals in a private capacity, and 112 were from organisations. This volume of submissions is significant for a parliamentary Committee Inquiry, indicating the importance of end of life choices to Victorians. And A6.2 Submission quantitative analysis Also important to note is the source data used in this analysis. Submissions to the Inquiry were not gathered in any kind of scientific manner, and the content of the submissions does not follow any particular format. Further, the content of each submission is not a response to a carefully worded questionnaire, but entirely at the discretion of the author. And A6.2.2 All submissions Of the 1037 submissions the Committee received, 1023 were included in the analysis. The remaining 14 submissions were received too late to be included. Of those 1023 submissions, 92 per cent expressed a view on assisted dying. 59 per cent of the total 1023 submissions were supportive of assisted dying and 33 per cent were opposed to assisted dying. The remaining eight per cent were unclear, inconclusive, or did not engage with assisted dying. In my respectful submission, in determining that there is overall community support for assisted dying the Committee has made the following errors and these errors are thus a “further issue” to be considered: 1. Individuals are more likely to write in the negative, to support euthanasia, based on personal experience; 2. Individuals are more likely to write something, as compared to not making submissions at all, if they have had a personal experience of something. People often say “I am going to write a book about my experience …”, well, this is the chance for people who have had an experience to write that book; and 3. Christians who oppose euthanasia will support a lobby group and rely on that lobby group being listened to by the decision maker, hence, there will be no 1000 individual submissions from 1000 different Christians. For the above three (3) reasons, sheer weight of numbers is not as easy to say two thirds v one third therefore the supports of euthanasia with two thirds win and euthanasia is approved.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 249

TABLE REBUTTING THE FRANCIS SUBMISSIONS

5. In this annexure, I propose to set out in a table, my specific rebuttal to the assertions made by Mr Francis in the Francis Submissions. Whilst some of the material is also included in other annexures, it is useful to have a fully self contained rebuttal to allow the reader a greater level of ease of comprehension of the arguments raised by and against the Francis Submissions. Once again, I have used a table to show the competing views.

Item Location Assertion Why Mr Francis is wrong 1 Cover letter I hold a literature database of over 4,000 This is an irrelevant assertion. He professional journal and other articles on has not shown how the number of assisted dying and related topics. articles he holds is of benefit to the Committee’s understanding of the issue. 2 Bias: Strong Strong and emotional language and expressed The Final Report is emotion emotional language certainty in regard to ‘slippery slopes’ and how based. Testimonies of suffering diminishes critical ‘the vulnerable’ will supposedly be ‘at risk’ and suicides are emotion based. faculties from assisted dying law reform appears in Supporters of euthanasia use numerous submissions. emotion as a key weapon. 3 Bias: Strong However, arguments that arouse strong Maybe this is what happened to emotional language emotions can reduce the engagement of critical the mental faculties of the diminishes critical thinking (Blanchette 2013) and make weak majority of the Victorian faculties ‘slippery slope’ arguments appear strong Committee. (Quraishi & Oaksford 2013). Interpretive biases are particularly linked with anxiety and The Final Report is emotion the perception of risk (Blanchette & Richards based. Testimonies of suffering 2010), which the Committee and Secretariat and suicides are emotion based. may experience as a result of strong (and Supporters of euthanasia use untrue) statements in numerous submissions. emotion as a key weapon. 4 Bias: Repetition The inquiry has received hundreds of This is an assertion to deflect doesn’t make a submissions opposing assisted dying law attention from the fact that when falsehood true reform, making a range of highly repetitious lots of people criticise the pro- claims. Indeed, it is clear that many of these euthanasia arguments, that means, submissions are form letters in which cohorts that lots of people have the same of people have been given ‘talking points’ and justifiable concerns. This is a very cut and pasted selections into their own dismissive, ignorant argument that submission. evades empirical evidence. 5 Bias: Use of Appeals to perceived ‘authority’ or ‘expertise’ The Francis Submissions uses ‘authorities’ as are common when there is a diversity of views politicians and others as undeserved on a topic (Furedi 2015), and the Committee authorities and then denies the ‘evidence’ cues has received submissions to this inquiry from a same right to opponents of number of medical and religious ‘authorities’. euthanasia. However, such appeals are problematic. Where an authority’s views are opinion-based rather than validly founded on direct empirical research, they are only slightly more accurate than chance (Mizrahi 2013). 6 Bias: Use of Importantly, the views of ‘expert authorities’ The Francis Submissions uses ‘authorities’ as can have the effect of inappropriately politicians and others as undeserved excluding options, and can result in authorities and then denies the ‘evidence’ cues questionable political judgements (Robinson & same right to opponents of Goren 1997). euthanasia

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 250

Item Location Assertion Why Mr Francis is wrong 7 Bias: Use of This report provides examples of ‘authorities’ The Francis Submissions uses ‘authorities’ as making statements that are untrue or politicians and others as undeserved misleading. The Committee and Secretariat authorities and then denies the ‘evidence’ cues must remain vigilant so as not to be misled by same right to opponents of such statements by virtue of the stater’s euthanasia apparent ‘expertise’. 8 Recommendation 6: That the Committee and its Secretariat I repeat responses to argument vigilantly avoid inadvertent bias in its decision based emotion. If the Committee making that may result from (a) emotions was to take this recommendation, diminishing critical evaluation, (b) repetition supporters of euthanasia would giving rise to perceptions of validity and have very little material to be accuracy of misinformation and (c) appeals to considered by the Committee. ‘authority’ giving rise to false impressions of ‘evidence’ and inappropriate exclusion of options 9 Assisted dying law The Committee has received a large number of How does Mr Francis know about reform is necessary submissions clearly showing that the the actual numbers. He should not experience of a bad death is not uncommon, have known this unless he was and that many would have liked the option of either behind them or he had an assisted death, whether they would have someone tell him this ahead of his used it or not. written submissions. Quite odd. 10 Assisted dying law However, it is equally well-recognised that No one ever said it could. That reform is necessary even the best palliative care can’t always does not mean euthanasia is alleviate severe symptoms of the dying needed. process, causing intolerable suffering for some at the end of life. Both Palliative Care Australia and the Australian and New Zealand Society for Palliative Medicine acknowledge this fact: 11 Assisted dying law “While pain and other symptoms can be No one ever said it could. That reform is necessary helped, complete relief of suffering is not does not mean euthanasia is always possible, even with optimal palliative needed. care.” (Palliative Care Australia 2006) 12 Assisted dying law Equally, the past President of the AMA, Dr Small number. Mr Mulino and the reform is necessary Brendan Nelson, acknowledges that there is: majority all said the number of “…a small group of patients for whom no people to be helped by such a law amount of medical treatment is going to relieve is small, therefore their suffering.” (Nelson 1994) disproportionate legislation. 13 Consequences of Some dying individuals experience extreme This does not provide the denying lawful and unwanted suffering in their last chapter, as statistical context which Mr assisted dying choice amply documented in numerous submissions Francis later demands when to the inquiry. considering suicide levels in For those wanting to avoid intense and Oregon when asserting there is no prolonged end-of-life suffering, the suicide contagion. consequences can be dire. On average, four Australians over the age of 70 suicide every week (Australian Bureau of Statistics 2010). While not all elderly Australians are terminally ill, not all terminally ill Australians are elderly, and the rate serves as a useful proxy measure.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 251

Item Location Assertion Why Mr Francis is wrong 14 Consequences of The Bureau of Statistics, coroners and This is emotional. denying lawful researchers agree that the rate is underreported What is dignity. This is a assisted dying choice (De Leo et al. 2010). Suicide methods used are presumption. often violent and undignified, traumatising emergency response teams and families. 15 Consequences of “I mean, everybody’s got that right [to suicide] This is a bare right to kill oneself. denying lawful in one sense in that suicide is not a crime; what If one chooses to self harm, in an assisted dying choice is a crime is assisted suicide…” Prof. Margaret “undignified” way. It is not a Somerville (Somerville 2007) reason for legislation. 16 Medicalisation and “Those same technologies that can save life This is not a reason for institutionalisation of can also prolong dying.” (Kenny 2011) legislation. death 17 Medicalisation and “Skilled nursing care can maintain life in a This is not a reason for institutionalisation of frail, elderly patient whose general condition is legislation. death such that a comparable state in an animal might well lead to prosecution of the owner.” (Baker 1976) 18 Medicalisation and “Australians are not dying as they would wish. This is not a reason for institutionalisation of Surveys consistently show that between 60% legislation. There is no nexus death and 70% of Australians would prefer to die at between this and euthanasia. home, and that residential care facilities are their least preferred option.” (Swerissen & Duckett 2015) 19 Medicalisation and The mere availability of choice of assisted This is fear of dying, it is fear in institutionalisation of dying is itself good palliative care. It means itself. See further opinion from death that a dying individual can get on with living RealDignityTas and my assertion out the remainder of life, without having to that euthanasia supporters are fear worry about how bad tomorrow might be if mongers, who cash in on people’s there is no acceptable ‘exit’ plan. This is the fear of dying. clear evidence in jurisdictions where assisted dying is legal. 20 Choice to die can be Choice to die can be rational But rarely is so rational. This is rational Community perception of suicide is that acting not evidence that there is no abuse to end one’s life is irrational, ill-informed, and that there is no potential for impulsive, and the result of mental illness with abuse. or without concomitant substance abuse. In such cases the negative perceptions—and efforts to reduce suicide—are justified. 21 Choice to die can be By contrast, however, in the face of refractory This is emotional. That is not a rational and intolerable symptoms, most Australian permissible argument even doctors believe a request for hastened death according to Mr Francis himself. can be rational, including 96% of NSW doctors (Baume & O'Malley 1994), 93% of Victorian doctors (Kuhse & Singer 1988) and 89% of South Australian doctors (Stevens & Hassan 1994). 22 Regulation of Despite assisted dying’s illegality in Victoria, This is a breakdown is safeguard existing underground and across Australia, research reveals that it is and is empirical evidence that practice widely practiced. Many Australian nurses nurses cannot be trusted to have have collaborated with doctors to provide laws that allow killing. assisted dying, and occasionally have even done so without consulting a doctor (Kuhse

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 252

Item Location Assertion Why Mr Francis is wrong & Singer 1993). Nurses in New Zealand also The laws will benefit nurses and provide assisted dying, sometimes without doctors more than patients. It will consulting a doctor (Malpas, Mitchell & kill patients and allow nurses and Koschwanez 2015; Mitchell & Owens 2004). doctors to evade liability and being “in residence” in jail. 23 Regulation of “Euthanasia is common. It’s practiced out of This is a breakdown is safeguard existing underground sight, under wraps, no regulation, no rules, no and is empirical evidence that practice supervision.” Prof. Peter Baum (Baum 2001) nurses cannot be trusted to have laws that allow killing.

The laws will benefit nurses and doctors more than patients. It will kill patients and allow nurses and doctors to evade liability and being “in residence” in jail. 24 Regulation of Professor Baum’s statement is borne out by This is a breakdown is safeguard existing underground scientific search. A national survey of and is empirical evidence that practice Australian doctors in 1996 found that 1.9% of nurses cannot be trusted to have deaths were the result of voluntary euthanasia laws that allow killing. (VE) or physician-assisted dying (PAD) (Kuhse et al. 1997). By comparison, the rate in The laws will benefit nurses and the Netherlands in 1995 (the closest year of doctors more than patients. It will empirical research data) was 2.6% kill patients and allow nurses and (Onwuteaka-Philipsen et al. 2012). The rate of doctors to evade liability and medically assisted deaths in Australia, where being “in residence” in jail. the practice is illegal, was three quarters the rate of the Netherlands, where the practice is legal. 25 Regulation of Similarly, Douglas and colleagues (2001) This is a breakdown is safeguard existing underground surveyed Australian surgeons, finding that and is empirical evidence that practice more than a third had provided drugs with the nurses cannot be trusted to have intention to hasten patient death, and with laws that allow killing. more than half of cases lacking an express request from the patient. The laws will benefit nurses and doctors more than patients. It will kill patients and allow nurses and doctors to evade liability and being “in residence” in jail. 26 Regulation of Indeed, “euthanasia is performed worldwide, This is a breakdown is safeguard existing underground regardless of the existence of laws governing and is empirical evidence that practice it” (Gastmans et al. 2006), “in all countries nurses cannot be trusted to have studied” (Muller, Kimsma & Van Der Wal laws that allow killing. 1998),“albeit in a secretive manner” (Rosenfeld 2000) “in the privacy of their The laws will benefit nurses and [doctor-patient] relationship” (Cassell 1995) doctors more than patients. It will and with repeated involvement among some kill patients and allow nurses and physicians (Smith 2007). doctors to evade liability and being “in residence” in jail. 27 Regulation of The research evidence accords strongly with This is a breakdown is safeguard existing underground my own experience. Having delivered and is empirical evidence that practice countless addresses at public events, nurses cannot be trusted to have conferences and meetings, I have lost count of laws that allow killing.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 253

Item Location Assertion Why Mr Francis is wrong the number of doctors who have approached me privately and said, in one way or another, The laws will benefit nurses and “of course I’ve helped patients to die: just doctors more than patients. It will sometimes it’s the right thing to do.” kill patients and allow nurses and doctors to evade liability and being “in residence” in jail. 28 Regulation of Even Dr Brendan Nelson, while President of This is a breakdown is safeguard existing underground the AMA, acknowledged that he had helped and is empirical evidence that practice hasten the death of a patient. He stated that in nurses cannot be trusted to have the “2 percent of cases” where there was no laws that allow killing. hope of recovery, that “patients, their families and their doctors make those decisions [for The laws will benefit nurses and euthanasia]” though clandestinely, because doctors more than patients. It will “technically it would be illegal” (Nelson kill patients and allow nurses and 1995). doctors to evade liability and being “in residence” in jail. 29 Regulation of The evidence is irrefutable: there is unground This is a breakdown is safeguard existing underground assisted dying worldwide and it demonstrates and is empirical evidence that practice that there is a profound need for assisted dying nurses cannot be trusted to have law reform to allow dying patients the right to laws that allow killing. seek a peaceful hastened death, and to protect doctors and nurses who provide that assistance. The laws will benefit nurses and Law reform would also force assisted dying doctors more than patients. It will from the dark shadows, creating transparency kill patients and allow nurses and and accountability around the process, which doctors to evade liability and would then be open to discussion and being “in residence” in jail. improvement if required. 30 Overwhelming Repeated and longitudinal research shows high This shows that people are overly public support for levels of public desire for assisted dying law trusting in the medial profession law reform reform. National public opinion has been in the and that they believe that there are majority for around half a century, with very safeguards when there is not. high levels for at least two decades (Francis 2012). 31 Overwhelming Contrary to conventional political wisdom, the This is an issue I raised with the public support for attitudes of assisted dying supporters is on Ministerial Advisory Panel in law reform average more deeply entrenched than are March 2017. They asserted that attitudes of those opposed. Voters opposed to there are a greater number of assisted dying law reform were nearly twice as submissions for euthanasia than likely to rate the issue as less important. So against. I said that, that is because how might this translate into votes at the ballot euthanasia supporters belong to box? organisations and they write individual letters, opponents support organisation who oppose euthanasia. Therefore the statistics need to be so interpreted with that knowledge. 32 Overwhelming In summary, extensive research into voter This is an issue I raised with the public support for attitudes shows that: Ministerial Advisory Panel in law reform 1. An overwhelming majority of voters support March 2017. They asserted that assisted dying in restricted circumstances. there are a greater number of submissions for euthanasia than against. I said that, that is because

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 254

Statistics and polls can be a result of framing. See the opinion on this from RealDignityTas by Mr Ray Groom, former Premier of Tasmania. 34 Overwhelming In summary, extensive research into voter Clearly this is written as a thinly public support for attitudes shows that: veiled message to politicians, if law reform 3. Community support spans age, gender, you want to be re-elected, then education, income, region, religion and voting support euthanasia. If you don’t, intention. then oppose euthanasia. This is bullying by people who say there is no abuse against the vulnerable.

Statistics and polls can be a result of framing. See the opinion on this from RealDignityTas by Mr Ray Groom, former Premier of Tasmania. 35 Overwhelming In summary, extensive research into voter This is an issue I raised with the public support for attitudes shows that: Ministerial Advisory Panel in law reform 4. Assisted dying law reform is of a higher March 2017. They asserted that personal significance to voters than a raft of there are a greater number of other policy areas, many of which have already submissions for euthanasia than been ‘dealt with’ by the legislature. against. I said that, that is because euthanasia supporters belong to organisations and they write individual letters, opponents support organisation who oppose euthanasia. Therefore the statistics need to be so interpreted with that knowledge. 36 Overwhelming In summary, extensive research into voter This is an issue I raised with the public support for attitudes shows that: Ministerial Advisory Panel in law reform 5. Contrary to conventional political wisdom, March 2017. They asserted that the attitudes of assisted dying supporters is on there are a greater number of average more deeply entrenched than those of submissions for euthanasia than opposers. against. I said that, that is because

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Item Location Assertion Why Mr Francis is wrong euthanasia supporters belong to organisations and they write individual letters, opponents support organisation who oppose euthanasia. Therefore the statistics need to be so interpreted with that knowledge. 37 Overwhelming In summary, extensive research into voter Clearly this is written as a thinly public support for attitudes shows that: veiled message to politicians, if law reform 6. On average, an election candidate you want to be re-elected, then supporting law reform would stand to gain support euthanasia. If you don’t, from supporter voters nearly four times the then oppose euthanasia. This is votes lost from opponent voters. bullying by people who say there is no abuse against the vulnerable. 38 Victoria’s youth Victoria’s Youth Parliament has dealt with This is evidence of very little more in touch assisted dying law reform four times in the last value. decade. Teenagers think they know the world. Then they hit university, introduced an assisted dying Bill. It was and what they learned upto the debated and passed. end of secondary school is team Bill was covered in the first week of debated and passed. university lectures. These people have not seen debated and passed. enough of themselves die to know how the law will affect their age the others, was also debated, sent to group. committee, revised, went to a vote and passed. It is easy to pass law in theory. 39 Opposing arguments Opponents of assisted dying law reform often The benefits of the law are critiqued Time to claim that there is no ‘rush’ for assisted dying admitted by all parties to be small. name up filibustering law reform. A typical example is Fr Brank Therefore there is no rush. for what it is Brennan, who says that “there is no hurry” and that it is “presently an academic issue” 40 Hippocratic Oath The Committee has received numerous Very view people argue the fictions submissions opposed to assisted dying argued Hippocratic oath. This is a minor on the basis that assistance is said to argument relative to the statistical contravene the Hippocratic Oath. and philosophical arguments. 41 Hippocratic Oath Australian medical students do not take the Something need not be mentioned fictions Hippocratic Oath. Some medical schools adopt to be included. This is more the the Declaration of Geneva (World Medical case when it is so obvious that it Association 2006), which doesn’t outlaw or “goes without saying”. even mention assisted dying. 42 Hippocratic Oath A thorough examination of oaths taken in USA But 18% do. fictions medical schools found that only 18% of schools used an oath prohibiting assisted dying (Kao & Parsi 2004). 43 ‘First do no harm’ The Committee has received numerous Again, how does Mr Francis fails in the real world submissions imploring it to reject assisted know this? Is there are dying on the basis that doctors are obliged to collaboration amongst supporters? ‘first do no harm’—the non-maleficence principle. Firstly, the claim has little to do with the real world. Many medical interventions cause

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Item Location Assertion Why Mr Francis is wrong harm, for example surgery, chemotherapy, and Harm, with a positive live keeping even common pharmaceuticals. We intent. Euthanasia is harm with no conveniently call these outcomes ‘side- life keeping intent. effects’, yet they are clearly and unequivocally ‘harms’. 44 ‘First do no harm’ There’s the crux: it is the patient who assesses This is a separate category of fails in the real world the situation according to the information, their belief is the euthanasia. This is own context, and whether the options accord also allowing the illness/ injury to with their own deeply-held values, beliefs and take its normal course, which is world views. For example, a Jehovah’s the same as withholding food and Witness may decide to decline a simple life- refusing harm. saving blood transfusion, and that decision is protected in statute in Victoria. 45 ‘First do no harm’ The principle is that it is the patient—not a The patient chooses, and, this is a fails in the real world medical association or academic philosopher— nation and worldwide understood who decides what constitutes harm (or a that JWs do not do blood greater harm) in his or her own context. transfusions. Different issue. 46 ‘First do no harm’ Overseas experience clearly shows that dying Peter Regan has a bias view as he fails in the real world people don’t want to die, but find it a lesser is a practitioner who administers harm than enduring. The Hon. Ken Smith death as far as I can understand asked Oregon doctor Peter Regan, who has the Francis Submissions. He will helped a handful of patients to die under their never go against law that protects Death With Dignity Act, why there wasn’t an him from criminal liability. avalanche of assisted deaths as predicted by critics of the law: “I cannot imagine why they would [expect an avalanche] anywhere. It just turns out that people don’t want to die!” 47 Assisted dying does The Committee has received many How does he know about the not ‘save money’ submissions asserting that assisted dying must other submissions? has been seen be rejected because its purpose or outcome is them? This is odd. Did he submit to save money. his submissions after others did so This is not only a shabby imputation of that he could tailor his shallow self-interest, but fails to understand submissions to rebut what has interests in a real-world context. Healthcare been said? institutions, and doctors, create jobs and earn The question is of WHO IS income by servicing the medical needs of SAVING MONEY. patients. They can’t do that when the patient The answer is, the people who has died. are paying the people providing the palliative care, not the people who are earing money delivering palliative care. That may be government, tax payer, family members. I cannot believe that Mr Francis does not understand this. 48 Assisted dying does An equally shallow counter-imputation is that The question is of WHO IS not ‘save money’ healthcare institutions and doctors over-service SAVING MONEY. patients for the express purpose of generating The answer is, the people who income, accounting for opposition to assisted are paying the people providing dying law reform. the palliative care, not the people who are earing money delivering palliative care. That may be

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Item Location Assertion Why Mr Francis is wrong government, tax payer, family members. I cannot believe that Mr Francis does not understand this. 49 Assisted dying is In March 1912, Captains Robert Scott and When Sydney Harbour Freezes consistent with the Lawerence Oates (and others) were returning over, when the Yarra River right to life from the South Pole when bad weather freezes over and when Lake overcame them. Running out of supplies they Burley Griffin Freezes over and were aware they were going to die (rather like the Blue Mountains becomes a terminally ill patients). Scott records in his glacial system from Katoomba to diary that Oates, leaving their tent for the Penrith, I will consider this blizzard outside, said “I am just going outside argument as being relevant. The and may be some time”. frost will kill so many crops that starvation will kill so many of us that euthanasia will not get a look in. 50 Ample evidence Many submissions to the Committee that voice Mr Francis has a very narrow and against ‘slippery opposition to assisted dying law reform warn self serving definition of the slope’ theories of dire consequences: that ‘vulnerable’ patients slippery slope. would be ‘at risk’ from pressure to choose the option. There are three broad reasons why these arguments fail: rhetorical sham, unsupported by overseas evidence, or unsupported by domestic evidence. 51 Ample evidence Rhetorical sham Mr Francis has a very narrow and against ‘slippery “The vulnerable will be at risk if we legalise self serving definition of the slope’ theories assisted dying!” slippery slope. 52 Ample evidence Various forms of this argument are advanced Mr Francis has a very narrow and against ‘slippery not only by lobbyists, commentators, self serving definition of the slope’ theories journalists and politicians, but even by judges slippery slope. and professional medical bodies (see examples on the next page). 53 Ample evidence But the statements are silly and nonsensical Mr Francis has a very narrow and against ‘slippery flapdoodle because they use circular rhetoric self serving definition of the slope’ theories dressed up as a profound or self-evidential slippery slope. truth to fabricate a case for or against change. 54 Ample evidence The fabrication is to present ‘the vulnerable’ Mr Francis has a very narrow and against ‘slippery and people ‘at risk’ as different groups. They self serving definition of the slope’ theories aren’t. The Oxford slippery slope. 55 Ample evidence English dictionary defines ‘the vulnerable’ as Mr Francis has a very narrow and against ‘slippery “at risk”, and Merriam-Webster agrees: “open self serving definition of the slope’ theories to harm”. slippery slope. 56 Unsupported by An international, peer-reviewed study into Mr Francis has a very narrow and overseas evidence hypothetical “vulnerable” groups has showed self serving definition of the no evidence of heightened risk for the elderly, slippery slope. Mr Francis needs women, the uninsured, the lesser educated, the to look at the evidence of change poor, the physically disabled, the chronically in laws in Belgium, people’s ill, minors, people with psychiatric illnesses permissiveness to allow including depression, or racial or ethnic definitions to include people who minorities, compared with background are not nearing the very last populations, whether under the law or outside breath of air and laxity in it (Battin et al. 2007). standards of monitoring

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Item Location Assertion Why Mr Francis is wrong compliance, and people’s apathy to compliance. 57 Unsupported by As Harvard University Professor of See response to 56 above. overseas evidence Psychology Steven Pinker says: “For [slippery slope] hypotheses to justify restrictive laws, they need empirical support. In one’s imagination, anything can lead to anything else … In a free society one cannot empower the government to outlaw any behaviour that offends someone just because the offendee can pull a hypothetical future injury out of the air.” (Pinker 2008) 58 Research evidence is Adding to our stock of empirical evidence, “Longitudinal” - mere jargon. at odds with the detailed medical research has been conducted See response to 56 above. theory that the around the world, including longitudinal elderly, the research in the two countries with the longest- uninsured, or other running voluntary euthanasia laws: the groups are Netherlands and Belgium. ‘vulnerable’ to assisted dying laws.

59 Research evidence is In Belgium, assisted dying was illegal in all See response to 56 above. at odds with the forms prior to 2002, when their voluntary theory that the euthanasia Act came into effect. While the Act elderly, the formally recognises voluntary euthanasia, it is uninsured, or other also taken to recognise the practice of groups are physician-assisted dying. ‘vulnerable’ to assisted dying laws. 60 Research evidence is In addition, Switzerland has had an assisted What is the significance of this. at odds with the suicide law in effect since 1942. He has not asserted this is without theory that the fault or non-compliance. elderly, the uninsured, or other groups are ‘vulnerable’ to assisted dying laws. 61 Research evidence is How has legalisation of assisted dying in these Where there is smoke there is fire. at odds with the countries affected medical practices, The non-reporting of people dying theory that the particularly controversial ones like non- is an ongoing problem. elderly, the voluntary euthanasia (NVE)—hastening a The philosophy of doctors being uninsured, or other patient’s death without a current explicit the deciders is reason for concern. groups are request from the patient? Likewise the action of nurses to ‘vulnerable’ to which Mr Francis had admitted. assisted dying laws. 62 Research clearly But does a country’s underlying culture of THIS IS THE SAME shows that the rate of medical practice mask unwanted assisted dying NVE is not law effects? To answer that ‘slippery slope’ QUESTION FOR correlated with question, we need to establish that the rate of SUICIDE THAT IS THE assisted dying laws. NVE went up after assisted dying entered the ALLEGED GENESIS It is more likely to be statute books. OF THE NEED FOR correlated with the

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Item Location Assertion Why Mr Francis is wrong country’s underlying EUTHANASIA TO BE culture of medical LEGISLATED. practice. 63 Research clearly Evidence against the ‘slippery slope’ theory is See response to 56 above. shows that NVE has also available closer to home. There are ready decreased after and useful parallels for end-of-life decision statutory legalisation making in Victoria (and elsewhere) that of assisted dying. provide powerful insights. Unsupported by domestic evidence 64 Opposing world In countless addresses I have given over the This is not a worldview issue. views can be past ten years, I have asked for a show of This has been incorrectly concurrently hands as to who in the audience believes it is categories as being a “worldview accommodated appropriate for a doctor to stab and slash their issue” when it is not. It is simply patients. Needless to say, hardly a hand has an application of medical science risen except for the few who knew what I was to try and save a person through going to ask next: the same question using surgery, for their long terms different language. Who believes that surgery sustenance of life. As oppose to can be appropriate? All hands rise. killing them outright. 65 Correcting Misinformation from opponents of assisted There is no mis-information being misinformation dying law reform is imaginative, highly varied, asserted. The mis-information is frequently stated and widely broadcast the underreporting by (remember the repetition bias). Many varieties practitioners and government have appeared in numerous submissions to this officials that monitor the inquiry.. occurrences of euthanasia. Eg the euthanasia statistics for the year 2013 in Oregon. 66 Correcting This submission has already provided ample See response to 56 above. misinformation evidence against the ‘slippery slope’, the subject of common erroneous beliefs. What follows are some other facets about which misconceptions are commonly held. The list is merely illustrative rather than exhaustive 67 Dr Els Borst remains Dr Els Borst remains proud of euthanasia law So what. This person is proud of proud of euthanasia reform their own achievement. They law reform would be as it is their life work. 68 Dutch elderly happy However, in the same public address as above, It is a true fact that most of the with nursing homes Professor Margaret Somerville said this: forigners who are killed at “Old Dutch citizens are seeking admission to Dignitas are German. nursing homes and hospitals in Germany, which has a strict prohibition against Euthanasia because of its Nazi past, and they’re too frightened to go into nursing homes or hospitals in the Netherlands.” (Somerville 2011) 69 Dutch elderly happy There is no evidence to support this claim in “No evidence” is quite absolute with nursing homes the research literature, although it is popular and cannot be seen as absolutely scuttlebutt on the Internet. true. Where there is smoke, there is fire. Why is this even in debate other than it has some factual basis.

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Item Location Assertion Why Mr Francis is wrong 70 No suicide contagion Figure 23 shows official Oregon government The social approval of suicide is census data on suicides in that state. The chart always going to give a person one includes all data available through the Oregon more reason to commit suicide. government’s web portal (Oregon Health This cannot be denied by Authority 2012). Part-way through the supporters of euthanasia. When available data period, Oregon’s Death With depression, mixed up emotions Dignity Act has come into effect (1997). There and life failures collide, social is a small drop in the average rate of suicides approval for the choice to self since 1997. harm and kill oneself will see have a latent persuasion to encourage the terrible act of suicide. \The extent can be debated but not denied. 71 No suicide contagion While factors leading to suicide are often THIS IS THE SAME complex and multi-factored, it is well- QUESTION FOR recognised that a key driver of suicide rates is the state of the economy, unemployment in SUICIDE THAT IS THE particular. Figure 24 adds the available USA ALLEGED GENESIS Bureau of Labor Statistics for Oregon (Bureau OF THE NEED FOR of Labor Statistics (USA) 2014). EUTHANASIA TO BE LEGISLATED

72 No suicide contagion Yet Mr Alex Schadenberg of the Euthanasia Where there is smoke there is fire. Prevention Coalition (EPC) in Canada has The social approval of suicide is published on his blog multiple opinion pieces always going to give a person one arguing a causal connection between Oregon’s more reason to commit suicide. Dying With Dignity Act and the general This cannot be denied by suicide rate. Indeed, in one he wrote: supporters of euthanasia. When depression, mixed up emotions “Oregon’s overall suicide rate … has been and life failures collide, social increasing significantly since 2000. Just three approval for the choice to self years prior, in 1997, Oregon legalised harm and kill oneself will see physician-assisted suicide. Suicide has thus have a latent persuasion to increased, not decreased with the legalisation encourage the terrible act of of physician-assisted suicide.” (Schadenberg suicide. \The extent can be 2013a) debated but not denied. 73 No suicide contagion Notice that Mr Schadenberg refers only to data See response to 72 above. since 2000. If we look at the official data as from this date, illustrated in Figure 25 and what it implies, one could be forgiven for accepting that suicide contagion is a result of Oregon’s Dying With Dignity Act. But the data is cherry-picked to support that argument, while the full data provides contrary evidence. Mr Schadenberg also omits to refer to readily available Swiss data (Federal Department of Home Affairs (Switzerland) 2012) shown in Figure 26, which also runs counter to his theory. After the launch of Dignitas (who assist suicides) in 1998, the general suicide rate in Switzerland continued to drop.

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Item Location Assertion Why Mr Francis is wrong 74 No suicide contagion Domestically, Mr Paul Russell who runs the See response to 72 above. Australian Family Association’s anti-assisted- dying blog “HOPE” and is second in charge to Mr Schadenberg at EPC, also wrote:

“In Oregon following the introduction of doctor-assisted suicide, suicide by other methods went up and not down as predicted. This is consistent with suicide contagion or clusters.” (Russell 2011) 75 Belgian nurses are According to a booklet published by anti- This is empirical evidence that like anywhere else euthanasia campaigner Alex Schadenberg, nurses do kill. Belgian nurses often perform illegal It is empirical evidence that “euthanasia without request” (Schadenberg safeguards are only as good as the 2013b).4 He lays the blame for this squarely at doctors and nurses are at the feet of Belgium’s euthanasia law. He cites communicating with each other. as ‘proof’ a point-in-time study of Belgian It is empirical evidence that nurse behaviour (Inghelbrecht et al. 2010). Mr people are overcome by emotion Schadenberg’s ‘findings’ are quoted widely by and will kill to overcome their assisted dying opponents. But this is no own stress as seeing suffering and scientific analysis. will do so when they can do so. 76 Belgian nurses are Firstly, the ‘analysis’ cherry-picks statements See response to 75 above. like anywhere else from the research which help to prosecute the desired case, while omitting to mention ones that counter his theory. For example, his analysis omits to mention that the researchers said "nurses may have thought that they were ending the patient’s life, when in fact the drugs were intended [by the prescribing doctor] to relieve symptoms in an aggressive, but necessary manner”. 77 Belgian nurses are These kinds of medical interventions are a See response to 75 above. like anywhere else facet of continuous deep sedation or palliative sedation, practiced around the world. There are still controversies, with some referring to it as ‘good palliative care’ or ‘intensified alleviation of symptoms,’ while others disagree. When it is practiced without an explicit request from the patient (because they are near death and are not mentally competent) and actually does shorten life (which commonly-used opioids generally don’t), it may be referred to as non- voluntary euthanasia (NVE). 78 Belgian nurses are So, did Belgian nurses overestimate their See response to 75 above. like anywhere else doctors’ intentions to hasten death? In a follow-up study, the researchers indeed found that Belgian nurses “see it [continuous deep sedation] mainly as a practice intended to hasten death, with a life-shortening effect”, when it may not have that intention (by the doctor) or had any life-shortening effect in any case (Inghelbrecht et al. 2011).

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Item Location Assertion Why Mr Francis is wrong 79 Belgian nurses are Secondly, the use of a single point-in-time The fact is that a single point in like anywhere else study to make a causative assertion fails the time study IS ACCEPTABLE. It most basic tenets of science.5 To prove is evidence that IF IT CAN causation, the first and most basic of several HAPPEN ONCE, IT CAN steps is to establish correlation. Did these HAPPEN AGAIN AND IT CAN nurse practices begin or at least increase from HAPPEN LOTS OF TIMES – the time of the Belgian euthanasia Act (2002)? AND PROBABLY WILL. 80 Belgian nurses are Figure 27 shows the rate of nurse- See response to 75 above. like anywhere else administration of NVE in Belgium before and after the Euthanasia Act came into effect in 2002 (Bilsen et al. 2014). Clearly, the practice was well-entrenched long before the Act, and it went down, significantly, afterwards. This is clear and empirical evidence against correlation, so causation fails at the first hurdle of proof. 81 Opponents admit no Dr Toffler said: This is Dr Toffler’s inability, it is slippery slope ‘cause “Now what we’re saying is… it exists, the not everyone else’s inability. and effect’ slippery slope, and can we prove cause and The fact that a climate or a culture effect, of course not!”; and of permissiveness exists, does not “We can’t show cause and effect. That’s not mean that, that climate/ culture what we’re claiming.” did not cause the death/ suicide. These statements were not challenged by Drs When there are multiple facets to Bentz or Stevens; the three sitting together. the slippery slope, it is difficult to say which of the many facets applied in a specific person’s death, but the slippery slope en total clearly did allow the death to take place. There is probably a repeat of the narrow definition of the slippery slope; 82 Opponents admit no Opponents of assisted dying law clearly have a What Dr Toffler said was not that slippery slope ‘cause strong belief in the ‘slippery slope’, but admit he had not evidence for it, it was and effect’ they have no evidence to support it. just that he said that he finds it difficult to say how the slippery slope applied in each instance of a person’s death. There is probably a repeat of the narrow definition of the slippery slope; 83 Opponents admit no Even opponents of assisted dying readily admit See response to 82 above. slippery slope ‘cause that there is no proof that legalising assisted and effect’ dying leads to claimed slippery slope effects. 6. In further answer to the issue of the far removed “Youth Parliament” argument is refer you to the following from Professor. Jeff Malpas Doctor of Philosophy, UTAS and Professor. Norelle Lickess Clinical Professor, University of Sydney In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Euthanasia and the issue of autonomy” wrote as follows

Yet although the survey evidence on this matter should be treated with caution, it is notable that one feature of those surveys, which also appears in much anecdotal evidence, is the degree to which support for physician-assisted suicide reduced according to the degree to which

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individuals are more closely and regularly involved in end-of-life care.[2] This is a particularly important consideration for two reasons: first, because individuals involved in end-of-life care are precisely the individuals one might expect to be most directly familiar with the issues and circumstances surrounding end-of-life decision-making; and, second, because these are also the individuals who might be called upon to administer assistance should physician-assisted suicide be made legal (the alternative, which is to use specialist physicians, raises additional concerns of its own).

[2] See for instance C. Seale, “Legalisation of euthanasia or physician-assisted suicide: survey of doctors’ attitudes”, Palliative Medicine, 23.3 (2009), p.208 .

7. In the words of the Honorable Ray Groom, Former Premier of Tasmania and Chairman of Southern Cross Care, In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Aged care - protecting the vulnerable”, where the former Premier of Tasmania said:

4. PUBLIC OPINION We notice that the proponent of the Bill has made a point that opinion polls indicate public support for voluntary euthanasia. It is well known that you can achieve any result you want to achieve from an opinion poll by posing the question in the most suitable form. Opinion polls are so often used to push causes and it is interesting to note that the, body which seeks the opinion poll usually obtains the result they want.

We suggest that if an individual person who may have said yes in an opinion poll was present when there was a full and proper debate on the issue of euthanasia, it is quite likely that he or she may change their mind In the United States an opinion poll was taken showing some 80% support for euthanasia but those results were in marked contrast to a later referendum where people were subjected to a range of views over a period of time before formally voting. The end result was that the referendum showed that some 55% of voters were opposed to the suggested euthanasia legislation.

In any event, Members of Parliament are elected to be representatives of the people. We live in a representative democracy. It is for the Members of Parliament to finally decide what they believe to be in the best interests of the community. Lf the wider community decided every issue, then there would be some interesting results. Perhaps there would be no taxation to fund all the essential services of Government. We doubt that the end result would be as beneficial to the community as good representative government where Members of Parliament think carefully about the issue at hand and decide what is best for the wider community.

An interesting example is capital punishment. When public attitudes are polled following a heinous crime, the poll usually shows that a clear majority of people are in favour of capital

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punishment. Yet through representative government, no Australian State currently permits capital punishment.

PROFESSOR MARGARET SOMERVILLE V MR NEIL FRANCIS

8. Following on from items 12 through to 15 in the above table, which deal with altercations between Professor Margaret Somerville and Mr Francis, I draw your attention to the article by Professor Somerville in the June 2017 newsletter of Euthanasia Prevention Coalition where she said:

Neil Francis is correct in criticizing me for a loose statement that “the general suicide rate has increased in every jurisdiction that has legalized assisted suicide.”

Although I believe that my statement will prove to be correct, at this point in time I should have left out the word “every.”

One problem in obtaining the required evidence, is that it’s difficult if not impossible to know how often physician-assisted suicide or euthanasia (PAS-E) is being used in countries where those interventions are legal to commit what we should view as “ordinary suicide”—if one can ever regard suicide as “ordinary,” but for want of a better term.

Two features of legalized PAS-E make “suicide by physician” seem likely: The percentage of deaths occurring from PAS-E, for instance, in The Netherlands and Belgium, is rising by approximately 10% each year and is now around 4% of all deaths. And the conditions for access to PAS-E are expanding in both jurisdictions. If one is not terminally or physically ill, neither of which is a legal requirement in either country, is euthanasia “ordinary suicide”? And what about if a person wants PAS-E because they are just “tired of life” or feel they have a completed life as the Netherlands is now contemplating allowing or, as an elderly couple proposed on ABC’s Q&A, simply want to avoid going into a nursing home, should these be classified as “ordinary suicide” cases?

Cases in which using PAS-E as a substitute means of suicide seems very likely have made headlines around the world. They include the deaf Belgian twins who were going blind; the young gender- dysphoric woman with the botched sex-change operation; the anorexic woman in her 20s; the depressed 34 year old Eva, whose death by euthanasia is focused on in real time in the documentary film, End Credits, made by Dutch pro-euthanasia advocates; the convicted rapist and murderer in the Belgium prison.

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9. When I consider Professor Somerville’s comments in this article I draw the following conclusions:

(a) The Q and A assessment I have made where Margo Somerville opposed Nikki Gemmel and Mr and Mrs Fellows- where I was in the studio audience.

(b) I agree, that that the old couple wanted was not a termination of life due to imminent painful death, they wanted what is not being called, and what Professor Somerville explained on the night, to be a “completed life” – which is an example of the slippery slope.

(c) Mr Francis is being disproportionate in his prosecution of Professor Somerville, where Professor Somerville says that she should not have used (at this point in time) the word “every”.

(d) That Mr Francis is looking for any excuse to discredit Professor Somerville as he knows that Professor Somerville is correct and her arguments damn his own; and

(e) That lawyers, like me, are expected to correct ourselves, and that is seen as honourable when we do. Why should this not be the same when a Professor in this debate corrects themselves.

10. I do believe that ordinary suicides going down when people rely on euthanasia and assisted dying to be a farce and a mere statistic to throw and the general populous to have us believe something and to give euthanasia supporters to argue. That does not change the fact that even supporters of euthanasia admit that doctors are killing people illegally. One bad action, does not justify another bad action, the second bad action is still a bad action.

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Annexure 53.: “Dying with Dignity Victoria” FIRST MAJOR ERROR – THAT LACK OF PAIN EQUALS DIGNITY

1. In my respectful submission, the Committee needs to consider the offerings of the Dying with Dignity organisation Australia wide. They are not correct in their assertions.

DWD’s Contentions

2. I extracted the following from the Dying with Dignity Website:

Dying With Dignity Victoria statement on the Government's plan to introduce assisted dying legislation:

December 8, 2016

The Andrews government has today committed to developing legislation enabling a terminally ill person with only months to live to end their life in a safe and controlled manner. Premier Daniel Andrews said the debate respects people’s views and people’s lives.

Recommendations of the Inquiry into End of Life Choices included the need for assisted dying laws in Victoria to give Victorians who are suffering at the end of their lives the ultimate choice should they be experiencing unrelievable and intolerable pain.

The state government responded to these recommendations by pledging to table legislation in 2017. In announcing their plans, Health Minister Jill Hennessy noted that there was majority support for assisted dying laws in the community.

She said she believed the health system was failing a small group of people whose pain was not alleviated by palliative care: "I genuinely do think there is strong community sentiment in support of assisting people who make a choice to die at the end of their life when they are enduring unbearable suffering."

"I don't think this is a left versus right issue. I don't think it's a matter of ideology. I genuinely think it is about people having dignity at the end of their lives."

DWDV made a significant submission to the Inquiry into End of Life Choices and has continued to advocate for safe and compassionate assisted dying laws in Victoria.

DWDV president, Lesley Vick, is committed to advocating for people’s end of life choices:

“The overwhelming majority of Victorians who support assisted dying will welcome this announcement from the government,” she said.

“We now look forward to the Victorian parliament enacting a humane and compassionate law based on the thoroughly researched and evidence-based report of the End of Life Choices inquiry.”

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Noted assisted dying spokesperson and DWDV vice-president, Dr Rodney Syme, believes there is a lot of work to be done to inform politicians and the public as to how laws will work to keep vulnerable people safe, while providing relief for those suffering at the end of their lives.

“It is essential that the legislation be clear and workable and that it contains sufficient safeguards to address the concerns of the community." Dr Syme said.

“This is not rocket science, as many jurisdictions in Europe and North America have been able to create legislation that functions well and without abuse.”

My Answer to DWD’s Contentions

3. If the minister’s opinions are based on the defective report then, the opinion is baseless. This is for the following reasons:

(a) The Committee did not turn its mind to Belgium;

(b) The submissions received need to be interpreted as set out in these submissions; and

SECOND MAJOR ERROR – THAT ASSISTED DYING IS NOT SUICIDE

DWD’s Contentions

4. The Dying with Dignity organisation is, Australia wide, attempting to change the public perception of euthanasia by downgrading the terminology. Where the terminology is causing people to not be so conscious of what is happening, then, that is not bona fides community support and politicians should not be relying on the alleged community support. This is mere misrepresentation of the truth of what is actually happening. That the Dying with Dignity organisation is attempting to “dull the senses” of the Australian populous is seen from the following passages included in “Episode 3 The 80-year-old outlaw” in Mr Denton’s series “Better Off Dead”

Catherine Foster: You cannot just put a nice word in front of an unpleasant one and change the meaning. What about assisted suicide, aid in dying, death with dignity — call it what you will, it is at its core an attempt to sugarcoat death and particularly suicide.

Andrew Denton: That’s US litigation attorney, and anti-euthanasia campaigner, Catherine Foster. She knows that a word like ‘suicide’ carries a historically dark meaning. She, and others who oppose these laws, try to harness that darkness wherever they can. It is a tactic that rankles.

Rodney Syme: I get so annoyed when the word suicide is used in relation to somebody who has got unbearable suffering, terminal illness, wants to end their life not because they want to end their life but because they want to end their suffering. To me this is a totally different circumstance to what we usually see as suicide.

(Emphasis mine)

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 268

My Answer to DWD’s Contentions

5. Suicide is suicide, and window dressing the premature death with new words is masking the reality and will likely result in society not caring about the process, the misuses and abuses that will happen. Again, Mr Denton is likely to call this last statement FUD, and refer us all to the “safeguards” that do are so weak in practice and designed by people who cannot see evidence in front of them let alone the acts of killing that are done in secret.

Plenary answer to dying with dignity

6. The Dying with Dignity arguments are repetitions of other euthanasia enthusiasts’ arguments therefore the arguments I raise against Go Gentle Australia and others I also raise against Dying with Dignity and Dr Rodney Symes.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 269

Annexure 54.: Christians for Euthanasia WHY CHRISTIANS FOR EUTHANASIA (IN ANY OF ITS FORMS) ARE WRONG

1. I have reviewed brochure produced by “Christians for Voluntary Euthanasia” and I am actually shocked and disgusted by it.

2. I cannot agree with the following expressly stated objectives of “Christians for Voluntary Euthanasia”

Our objectives are:

to demonstrate to Members of Parliament that there is a strong majority of thinking Christians who want Voluntary Euthanasia to be made lawful with appropriate safeguards

to counter the misinformation so often put forward by many of the religious hierarchy in their opposition to Voluntary Euthanasia.

3. I do not believe that there is a “strong majority of thinking Christians who want Voluntary Euthanasia” I have never spoken with a Christian who reads their bible and attends church regularly who is in favour of euthanasia.

4. It looks more like something that Go Gentle Australia would produce than a Christian organisation would produce. I say this because many of the arguments are actually quite secular and not based on theological issues. Indeed, the issue of jumping from a burnish bush is a key justification relied upon by Go Gentle Australia.

5. I cannot accept for one moment that just because during the Second World War the German Soldier wore a belt buckle that stated “Gott mit Uns” meaning “God with Us” (I accept this as being a historical fact of the Second World War as I have heard a lot of people say this even though I have never physically seen such a belt buckle) means that Christians should and therefore all other people should agree with the introduction of euthanasia. I have never heard something quite so illogical or of such ideologically unsound footing. There is no way that God would support the atrocities of the Nazi regime. “Gott mit Uns” was a means of increasing the German soldier’s self-belief for the fight and to build morale.

6. The command to not kill is not set aside by compassionate killing.

7. Where, in the Old Testament, the Israelites wiped out the enemies, they had specific command to do so. That was God specifically saying to do this. It was not a model for killing in this day and age and was not a model for euthanasia in any of its forms.

8. When God wiped out the people of the earth except for those who were on the Ark, again, that was God’s decision. Once again, it was not a model for killing in this day and age and was not a model for euthanasia in any of its forms. Oh, and the rainbow belongs to God’s people, it does not belong to the LGBTIQ community.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 270

Annexure 55.: Practical Problems Part 1: Substantial Compliance FULL COMPLIANCE ALMOST IMPOSSIBLE TO LEGISLATE

1. It is a feature of legislation that the full compliance with all aspects of written legislation is very difficult to legislate.

FULL COMPLIANCE ALMOST IMPOSSIBLE TO ENFORCE

2. In my respectful submission, one issue that the pro-euthanasia supporters mist horridly confront is that, despite the numerous and often very intelligent and well intentioned submissions from people who have very different and very learned backgrounds and industry experience (often different industries) not legislation is fool proof. No legislation is perfect. No legislation is able to be guaranteed to have the intention that Parliament had for it. Courts on a daily basis chop up, chop down and even dismiss legislation. The best laid plans of legislators come to nothing or have unintended legal effects.

3. I can assure the Committee that as human nature is, as soon as the legislation is enacted, it will be examined by suitably minded practitioners to test where the law is and what loop holes there are in the law to allow them to get away with what they want to do. This is what people do, people test legislation until it is either affirmed or until it breaks – whatever happens first. Where people are exercising statutory powers, the testing of the law will be more complex and the intention and meaning of each and every word will be tested in court.

4. Ordinarily, I would not be so concerned. Whilst from a commercial perspective, the change in the interpretation may see a court case decided in different ways, the losses could be huge, even in the millions of dollars going to one party on one interpretation, but to another party on a new interpretation of the same legislation. That is money, it is NOT A HUMAN LIFE.

CASE STUDY, the Building and Construction Industry Security of Payments Act 1999 (NSW)

5. A clear example; BACISOPA. This valuable piece of legislation which regulated payments in the construction industry in New South Wales, and was the first of its kind in Australia, has suffered a very turbulent judicial history since it came into force fifteen (15) years ago. It has seen three (3) distinct epochs of how the New South Wales Supreme Court of Appeal has interpreted its contents. Believe it or not, the most recent epoch was ushered in by an industrial relations case in the High Court of Australia, and that case affected the whole interpretation remedies under the BACISOPA. The BACISIOPA is now so complicated in what is still and is no longer good law is very difficult to understand and often argued. This is the mess that has resulted in relation to what supposed to be very simple legislation that even tradesmen could use to help themselves get paid by a person who did not want to pay.

Epoch 1: The Musico Period

6. This is based on the NSW Supreme Court case of Musico and Ors v Davenport and Ors [2003] NSWSC 977 (31 October 2003). Adjudications are “quashed”.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 271

131 Grosvenor also submitted that it would be open to the judgment debtor to seek a stay of the judgment. Section 32 preserves such rights as the parties to a construction contract have apart from (and of course not inconsistent with) the Act. I do not think that there is anything in the Act that would preclude a court from exercising its statutory or inherent jurisdiction to stay a judgment that, by force of s 25(1), it must be taken to have given. However, unless such a stay can be granted because of denial of natural justice or jurisdictional error, it cannot be regarded as an alternative remedy. Even if it could, it would not be a true alternative. The effect of a stay is to prevent execution, during the continuance of the stay, of the judgment. The effect of certiorari is to quash the decision and, therefore, the judgment consequent upon it. Neither is finally determinative of the rights of the parties under the construction contract.

132 It is not to the point that the balance of accounts between Musico and Grosvenor will (or may) in due course be ascertained, and that appropriate adjustments will (or may) be ordered. The question for present consideration is whether Grosvenor should be forced to pay an amount that is due only because of an adjudicator’s determination that, I have found, was flawed by denial of natural justice and jurisdictional error. In this context, it should be remembered that, whilst the judgment remains in force, it can be enforced. It could also be used to found a notice under s 459E of the Corporations Act 2001.

Relief would be futile

133 Grosvenor submits that relief would be futile “since the adjudicator is now “functus officio”, and the determination has been registered as a judgment of this Court”. Whether or not those propositions are correct, certiorari to quash the determination will be effective – either automatically or by way of consequential relief.

134 In any event, I am not certain that the concept of “functus officio” has any relevance. If the decision is quashed then the effect will be that there has been no valid determination of Grosvenor’s adjudication application. I see no reason why Adjudicate Today could not nominate another adjudicator to undertake the task that, on my reasoning, Mr Davenport failed to carry out according to law. Musico in their written submission in reply, appeared to accept that this would be the case.

I order that the determination of the first defendant made on 18 July 2003 on adjudication application No. 2003 ADJT082, pursuant to the Building and Construction Industry Security of Payment Act 1999, be quashed.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 272

Epoch 2: The Brodyn Period

7. This is based on the NSW Supreme Court of Appeal case of Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394 (3 November 2004). Adjudications are “void”, not quashed, they were of no legal effect at all if they do not comply with the BACISOPA so nothing to “quash”.

8. The famous passage is as follows:

54 The relevant sections contain more detailed requirements: for example, s.13(2) as to the content of payment claims; s.17 as to the time when an adjudication application can be made and as to its contents; s.21 as to the time when an adjudication application may be determined; and s.22 as to the matters to be considered by the adjudicator and the provision of reasons. A question arises whether any non-compliance with any of these requirements has the effect that a purported determination is void, that is, is not in truth an adjudicator's determination. That question has been approached in the first instance decision by asking whether an error by the adjudicator in determining whether any of these requirements is satisfied is a jurisdictional or non-jurisdictional error. I think that approach has tended to cast the net too widely; and I think it is preferable to ask whether a requirement being considered was intended by the legislature to be an essential pre-condition for the existence of an adjudicator's determination.

55 In my opinion, the reasons given above for excluding judicial review on the basis of non-jurisdictional error of law justify the conclusion that the legislature did not intend that exact compliance with all the more detailed requirements was essential to the existence of a determination: cf. Project Blue Sky Inc. v. Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390-91. What was intended to be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf. R v. Hickman; Ex Parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598), and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non- compliance.

56 It was said in the passage in Anisminic quoted by McDougall J that a decision may be a nullity if a tribunal has refused to take into account something it was required to take into account, or based its

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 273

decision on something it had no right to take into account. However, in Craig v. South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177 the High Court said that this would involve jurisdictional error if compliance with the requirement in question was made a pre-condition of the existence of any authority to make the decision. I do not think that compliance with the requirements of s.22(2) are made such pre- conditions, for the same reasons as I considered the determination not to be subject to challenge for mere error of law on the face of the record. The matters in s.22(2), especially in pars.(b), (c) and (d), could involve extremely doubtful questions of fact or law: for example, whether a particular provision, say an alleged variation, is or is not a provision of the construction contract; or whether a submission is "duly made" by a claimant, if not contained in the adjudication application (s.17(3)(b)), or by a respondent, if there is a dispute as to the time when a relevant document was received (ss.20(1), 22(2)). In my opinion, it is sufficient to avoid invalidity if an adjudicator either does consider only the matters referred to in s.22(2), or bona fide addresses the requirements of s.22(2) as to what is to be considered. To that extent, I disagree with the views expressed by Palmer J in Multiplex Constructions Pty. Limited v. Luikens [2003] NSWSC 1140.

Epoch 3: The Chase Oyster Bar Period

9. This is based on the NSW Supreme Court of Appeal case of Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 (24 September 2010). Adjudications are quashed and void. This judgment is quite long, so I include part of the decision as described in he header of the case.

DECISION: Question 1: Whether the determination of the Second Defendant (the Adjudicator) on 18 March 2010 that he could hear and determine the first defendant’s adjudication application pursuant to the Building and Construction Industry Security of Payment Act (the Act) should be set aside or quashed for jurisdictional error in circumstances where the adjudicator incorrectly concluded (on the facts found by him and on the facts subsequently found by the Court) that the notice required by Section 17(2)(a) of the Act had been served on the Plaintiff in the time required by the Act. Answer: The Supreme Court, in exercise of its supervisory jurisdiction: (a) has power to determine that – (i) an adjudication application has not been made in compliance with s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999; (ii) the determination of the adjudicator, made in the absence of a valid adjudication application, was invalid, and (iii) there was non-compliance in the present case; (b) has power to grant relief in the nature of certiorari and set the determination aside. Question 2: Whether in light of the decision of the High Court Kirk v Industrial Relations Commission [2010] HCA 1 the decision in Brodyn Pty Ltd v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 274

should not be followed or was incorrectly decided so far as it held that: a. the Supreme Court of New South Wales was not required to consider and determine the existence of jurisdictional error by an adjudicator in reaching a determination under the Act; b. an order in the nature of certiorari was not available to quash or set aside a decision of an adjudicator under the Act; c. the Act expressly or impliedly limited the Supreme Court of New South Wales’ power to consider and quash a determination for jurisdictional error by an adjudicator in reaching a determination under the Act. Answer: To the extent that Brodyn Pty Ltd v Davenport held, in relation to an adjudication application which was not in compliance with s 17(2)(a) of the Act, the matters set out in the question at a, b and c, it was in error. Question 3: Whether the Act, so far as it expressly or impliedly limits the power of the Supreme Court of New South Wales to review an adjudicator’s determination for jurisdictional error, is inconsistent with the requirement of the Constitution that there be a State Supreme Court with jurisdiction to grant relief in the nature of certiorari. Answer: The Act contains no such limitation. Order that, as between Chase and Hamo the costs in this Court should be Chase’s costs in the proceedings, but otherwise there should be no order as to costs.

10. The point I make and attempt to impress on the Advisory Panel, is quite simple, the legislators do not get it right in their drafting, and, what ever is drafted will be challenged and the loop holes will be found, exploited. It will be a never ending “cat and mouse” chase with legislators trying to plug holes in the euthanasia permitting law that a euthanasia practitioner has found to exploit.

Judges hold different opinions

11. Part of the reasoning that lead to the three (3) epochs above is that different judges quite legitimately held different views. Citing again, Her Honour Justice Bergin in Shell Refining (Australia) Pty Limited v A J Mayr Engineering Pty Limited [2006] NSWSC 94 (6 March 2006), Her Honour relied upon the reason of a former Chief Justice of the High Court of Australia, His Honour Chief Justice Murray Gleeson AC QC.

26 Adjudicators are under pressure to produce their determinations within tight timeframes and in large and/or complex cases that pressure can be intense. It also seems that the development of the case law in relation to the Act has not made the adjudicator’s task easier. Indeed Gleeson CJ, in refusing a grant of special leave, recently observed that certain provisions of the Act that had to be construed by the New South Wales Court of Appeal “have occasioned some difficulty and some differences of opinion among judges”: Coordinated Construction Co Pty Ltd v JM Hargreaves (NSW) Pty Ltd & Ors; Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd & Ors [2006] HCATrans 9 (3 February 2006.

(Emphasis mine)

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 275

12. That judges have different opinions, is another reason why parliament cannot be sure they have had a correctly drafted piece of legislation. It is amazing how swiftly a “safeguard” can be swept aside by a single judicial decision. This would allow people to get away with getting away with killing.

FULL COMPLIANCE WITH LEGISLATION IS NOT ALWAYS REQUIRED

13. The pro-euthanasia lobby are so, so, so, so, so dependent on the “safeguards” that are in the legislation. Well, I hope that you may be able to see from the above three cases in relation to the BACISOPA, that, the NSW Supreme Court and even the NSW Supreme Court of Appeal have had a lot of trouble over many years trying out what level of compliance the various people and organisations who are affected by the BACISOPA must make in order to not be in breach of that legislation. For the purposes of euthanasia, and the so called safe guards, it is alarming that 100% compliance is not required 100% of the time on 100% of actions to be taken by 100% of people and organisations who are affected by the BACISOPA.

14. This problem is even more alarmingly brought home in the case of NSW Supreme Court of Appeal case of Hawkins Construction (Australia) Pty Ltd v Mac's Industrial Pipework Pty Ltd [2002] NSWCA 136 (9 May 2002). This case dealt with a now repealed provision that required the party making a claimant to expressly state that the claim for payment is made under the applicable legislation, the BACISOPA.

24 Stein JA: I also agree with Davies AJA and with the orders which he proposes.

25 In my view, the application to the Court should be refused for the reasons given by the trial judge, Windeyer J. The application before the Court is lacking in merit and substance and displays, in my view, an unjustified technical approach to the law.

26 In particular, I endorse what his Honour said at paragraph 8 of his judgment concerning the argument about the incorrect naming of the relevant Act in the payment claims. His Honour said:

The second argument was that because the payment claims abbreviated the name of the Act, they did not fulfil the statutory requirement to name the Act. This argument might have had some weight in 1800 . In 2001, an argument based on the absence of the word "and" and the letters "ustry" has no merit. It should not have been put.

15. The loopholes that one may find in any euthanasia legislation will cost people their lives because compliance may be seen as not mandatory. As cited above in, the second epoch was wrought into existence as a result of the truism that full compliance is not always required per NSW Supreme Court of Appeal case of Brodyn Pty Ltd t/as Time Cost and Quality v Davenport & Anor [2004] NSWCA 394 (3 November 2004):

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 276

be essential was compliance with the basic requirements (and those set out above may not be exhaustive), a bona fide attempt by the adjudicator to exercise the relevant power relating to the subject matter of the legislation and reasonably capable of reference to this power (cf. R v. Hickman; Ex Parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598), and no substantial denial of the measure of natural justice that the Act requires to be given. If the basic requirements are not complied with, or if a purported determination is not such a bona fide attempt, or if there is a substantial denial of this measure of natural justice, then in my opinion a purported determination will be void and not merely voidable, because there will then not, in my opinion, be satisfaction of requirements that the legislature has indicated as essential to the existence of a determination. If a question is raised before an adjudicator as to whether more detailed requirements have been exactly complied with, a failure to address that question could indicate that there was not a bona fide attempt to exercise the power; but if the question is addressed, then the determination will not be made void simply because of an erroneous decision that they were complied with or as to the consequences of non- compliance.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 277

Annexure 56.: Is euthanasia a “good death” and pain free? Denying all Dignity In Death EUTHANASIA IS NOT A PLEASANT DEATH – AND DENIES DIGNITY IN DEATH

1. I am concerned that the quick and painless death ideal, aspiration goal indeed promise of euthanasia is not going to work out, indeed, has not worked out, in 100% of occasions in the past. I am concerned for this situation for the following reasons:

(a) if the person wakes up after sedation and taking the poison, then, they are likely to stay in a soon to be dead not yet and the poison will be in their body possibly causing additional prolonged pain;

(b) if the person wakes up after sedation and taking the poison, the doctor may decide to “finish them off” and given them more medicine, forcing into the person’s mouth or arm or however the original ingestion took place. This is a problem because:

(i) that action will do exactly what we are told the legislation will not permit, that Europe allows physician induced death but Victoria will not, the doctor may feel he or she has no choice; and

(ii) this action will probably be unreportable, the non-compliance will never see the light of day.

2. In my lay, non-medically trained view, I can see that there is always a chance that the drugs will not be 100% successful for at least the following reasons:

(a) different people react to different drugs differently

(b) different people require different doses;

(d) the compounding chemist may get the formula wrong.

And the patient will be the one who suffers and the doctor the one who covers for the mistake by taking matters into their own hands.

3. This problem is not idle conjecture and it is a real concern that all supporters of euthanasia must factor into their reasons for supporting the state sanctioned killing of people. From Oregon

(a) From the BBC article Euthanasia deaths 'not easy' Thursday, 24 February, 2000, 12:53 GMT. I note the following : Attempts by doctors to help people suffering from fatal illness take their own lives failed to give an 'easy' death in one in five cases, researchers say.

The claim comes as figures from Oregon, in the US, showed the number of people taking advantage of the state's assisted suicide law doubled last year.

Research into euthanasia in the Netherlands claimed people awake from comas after taking supposedly fatal drug doses and suffer side effects such as vomiting and gasping.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 278

The study showed that when patients tried to kill themselves using drugs prescribed by a doctor, the medication did not work as expected in 16% of cases.

In a further 7% of cases there were technical problems or unexpected side effects.

Problems surface so often that doctors felt compelled to intervene in 18% of cases, according to a report in the New England Journal of Medicine.

Even when the doctor directly performed euthanasia, complications developed in 3% of the attempts.

Patients either took longer to die than expected or woke from a drug-induced coma that was supposed to be fatal in 6% of cases.

(extracted only – for full story (see http://news.bbc.co.uk/2/hi/health/655143.stm))

(b) When he considered evidence from over ten years later than the statistics I found, Mr Daniel Mulino did not find any improvement in this dire situation. As Mr Daniel Mulino put it in his Minority Report:

4.6.8 Failure of drugs performing as designed In Oregon, according to official statistics 24 patients are known to have regurgitated some of the legal dose and six regained consciousness after taking the drugs and died later.134 In Washington State, according to official statistics, there have been at least 8 cases of regurgitation, 2 cases of “other” complications (2012 and 2015) and a seizure (2014).135 A study of euthanasia and assisted suicide in the Netherlands found that complications arose in 7 per cent cases of assisted suicide and problems with completion (such as a longer-than-expected time to death, failure to induce coma or induction of coma following the awakening of the patient) occurred in 16 per cent of cases. The rate of complications and completion were lower in the case of euthanasia (3 per cent and 6 per cent respectively).136

134 For the number of regurgitations, see Table 1 of the 2015 report: http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year18. pdf For the number of instances of regained consciousness see Table 1 of the 2015 report but also, for more detailed breakdown, see Oregon Public Health Division Report for 2012, Table 1, note 13. http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16. pdf

135 Washington State Department of Health, Washington State Department of Health 2015 Death with Dignity Act Report, see reports for the years 2011-2015. See http://www.doh.wa.gov/portals/1/Documents/Pubs/422-109- DeathWithDignityAct2015.pdf and reports for 2012-2014 (Accessed 30 May 2016)

136 Groenewoud, Johanna, Agnes van der Heide, Bregje D. Onwuteaka-Philipsen, Dick Willems, Paul van der Maas and Gerrit van der Wal, “Clinical Problems with the Performance of Euthanasia and Physician-Assisted Suicide in the Netherlands”, New England Journal of Medicine, 2000, 342, 551-556. 4. Given this risk of further pain when the euthanasia process fails to deliver the death as promised, this is yet one more reason to oppose euthanasia.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 279

Annexure 57.: The Poker Machine Test Must Be Avoided THE POKER MACHINE TEST MUST BE AVOIDED

1. The damage done by “poker machines” (my words and description) is often debated and the positive or negative net benefit of euthanasia should not be the deciding factor on the legalisation/ decriminalisation of euthanasia.

2. The damage done by poker machines is often debated, understood that they damage some people, and provide money to other people – local clubs and government revenue;

“Is the money that is made, more than the money than is needed to be spent to overcome the problems of the poker machines? If so, then poker machines are economically viable.”; and

“Is the benefits to seeing young people in sporting clubs, and the utility of giving people a place to congregate to meet, of a greater social benefit than the emotional and relational carnage done to old people and families through problem gambling?”

3. Money is money and is replaceable. However, people are not replaceable, and the decision on permitting or not permitting euthanasia should not be based on a quantification of the suffering:

(a) “Is the overall level of suffering by society increased or lessened:

(b) When people who are suffering have their suffering ended early?; or

4. To rely on the poker machine test is to intrinsically ignore human worth and is an example of humanity sliding down the slippery slope of degradation that the euthanasia lobby said would not happen.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 280

Annexure 58.: The Real Fear Mongers Are the Pro-Euthanasia Lobby Fear of Death Itself – The Victorian Enquiry

1. In my respectful submission, this fear that everyone has about them dying needs to be discussed and the dying demystified and what life is like at the end of life stage better understood so that people do not legislate out of unfound fear.

3.9.2 Talking about death

Annette Cudmore, Clinical Nurse Consultant at West Hume Palliative Care Consultancy Service crystallised the issue from both a patient and medical practitioner point of view:

… we need to be comfortable with our own mortality, and we need to be comfortable with supporting people to discuss their mortality.377

The Committee heard that people are open to discussing death and end of life care if it is raised sensitively. They are particularly prepared if they are deteriorating or dying. As Dr Neil Orford of Barwon Health put it:

People are prepared to talk about their end-of-life care as they are deteriorating and dying, because they have got skin in the game. It matters and they want to talk about it … I think people are prepared to talk about it if it is done sensitively.378

Luke Williams, Clinical Lead at Latrobe Community Health Service in Morwell explained that people who are dying are thankful for the opportunity to talk about their options, perhaps because our society ignores death in general:

… we do not talk about this as a society — death is often ignored. Going into someone’s house, as I do a lot, and talking about death and what they want for end of life, they are often thankful for having that opportunity, because we ignore it as a society.379

Dr Michelle Gold, Director of Palliative Care at Alfred Hospital told the Committee that she sees death and the dying process as misleadingly bleak and frightening in the public mind, where her experience is that the end of life can be a time for important experiences, goodbyes, and shared memories with loved ones:

… I am concerned that the community narrative on end-of-life care is very skewed. It seems that there is an overly bleak picture of death and dying that has come into the public mind and context that death is always frightening. I think that is quite misleading. It seems to be something that by definition must be painful, undignified, ghastly, and if that is your impression, then of course it is no surprise that people want to avoid death at all costs — which I can assure you is not possible — or to exert some sort of control over it.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 281

2. The pro-euthanasia want people to be scared and seek protection from what they are afraid of – and they then suggest that euthanasia needs to be available. Not many people will be in the dire situation of unquenchable pain, and, those that are – as sad as it is – should not expose the community to the risk of murderous abuses to many, many, many others (in addition to themselves).

Fear of Death Itself – Expert Opinion Dr Kristi Giselsson

Pain or even a terminal illness in itself is not an adequate measure of the quality or worth of a person’s life. In May this year, Rob Cordover stated that “The rule by fear - (the fear) that euthanasia will be abused - should not be the path for a humane society.”[9] However, Cordover’s decision to kill himself on June 22nd was actually motivated by fear; the fear that his motor neurone disease would eventually rob him of dignity and a fear of experiencing pain (Cordover insisted that the issue was one of controlling the “agony” of his death, as opposed to the death itself[10]). To legalise euthanasia would inevitably affirm to people that yes, they are indeed right to fear such things; sentiments which would actually foster a climate of fear and distrust – as opposed to the apparently more ‘humane’ society where fear is apparently dispelled via the legalised killing of other humans, as suggested by Cordover.

[9] The Mercury, May 30th, 2009

[10] Ibid.

(emphasis mine)

Fear of Death Itself - My Opinion

4. In my respectful submission, the Committee, Parliament and all people in Victoria (and even Australia) need to look long and hard at the tactic being perpetrated by the pro-euthanasia lobby. Irrespective of the outcome of any survey/ poll/ report and the like – one thing is common to all results is this, people all people fear pain and have extreme fear of extreme pain. In my opinion, and I strongly suspect in the mind of the pro-euthanasia lobby when they are doing surveys, is that if they can tap into the inherent fear of pain – and pain at its worst – then they can get anyone to agree to anything – even agreeing to an early death.

5. In my view, it is not likely that the people who are contacted for a survey/ poll/ report and the like are even thinking about consequences, pollsters are usually not interested in asking:

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Annexure 59.: The “Euthanasia Industrial Complex” 1. Another further issue is the cost of the programs needed to control euthanasia. At this point in time, that money is not needing to be spent.

2. The level of spending and government departmental infrastructure will be immense. I have heard of the American “military industrial complex” and people in America are now these days describing as the “prison industrial complex”. I would like to add one more complex, the “euthanasia industrial complex”.

3. It is pretty clear to me, that if euthanasia is permitted in Victoria, then, when people die unlawfully, the opposition will say to the government of the day:

Opposition “that is happening because we have a system which is not being sufficiently resourced”

Government “we are spending more money than when you were in government.”

Opposition “your government has decreased funding by $50M”

Government “in real terms, we have increased funding”

4. Further, I expect that all the cost of euthanasia will be at the expense of the public purse. When we consider that the federal government was no able to get its “co-payments” for visiting the doctor approved and the community backlash that there was with that issue. Imaging the outcry from Dying with Dignity and other organisations. I expect that they would say something like the following:

Euthanasia organisation: “These people are suffering, they are in pain, intolerable and horrible pain, they want to die. They want a peaceful and loving death. These people are poor. And this government is hitting them up for a $1000.00 fee. The cost of dying for these people who are already suffering is too high. This should be something that the government should pay for, these people have paid taxes.”

5. These people will also be the first people to oppose taxpayer money being spend on Christian schools and complain that there is not enough money for public schools. There will be less money to spend on public schools when we are paying for the cost of the euthanasia industrial complex.

6. That some people earn or save money from euthanasia is not something which Mr Francis wants to admit in the Francis Submissions. People who work in palliative care do not earn money, but people who make, sell, distribute drugs do, people who administer injections do and tax payers save money if care is not being paid for.

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Annexure 60.: Atheism and Humanism RESPECT FOR ATHEISTS AND HUMANISTS

1. In this letter, I have a great deal to say against the attitudes of atheists. Please understand, that I consider atheists, like all people deserve:

(a) Respect to have an opinion;

(b) To not be “hassled” or in any way mistreated for the opinion that they have; and

(c) Called names or in any other way humiliated in the process of critiquing the: merit; validity; workability; implications and consequences; and so forth of their views.

A PROXY WAR

2. As a Christian, I express the need to treat all people with respect. I do so, even if they are LGBTI or an atheist.

3. Whilst I do not want to turn this debate in a Christians v atheists contest it appears to me that this debate is being fueled by atheists who do not care about human life like they say they do, but are waging this fight to oppose Christianity and to oppose religion in Australia, and overseas.

VALUES. WHO’S VALUES DID THE COMMITTEE APPLY?

4. This issue is very relevant given that the Committee places so much emphasis on “values” which are said to be held by Victorians and that the Committee considered them in determining that euthanasia should be introduced into Victoria.

5. The Final Report should be condemned for this reason alone let alone the many other reasons it should be condemned for.

6. In addition to the table of individuals, it is important to recognize the stated purpose of atheistic organisations – that is, to undermine religion:

WHO’S VALUES: SECULAR PARTY OF AUSTRALIA

7. The “Secular Party of Australia” quite openly state on their website: https://www.secular.org.au/

As 21st century citizens, we want to challenge the power and privilege of religious institutions in Australia. As secular humanists, we want an end to religious interference in education, health, civil liberties and taxation. As champions of human rights, we want women, minorities and the LGBTI community to be free of discrimination and the dictates of archaic superstition.

(emphasis mine)

8. Further, as a policy, in absence of critical reason to the contrary, they say that:

We stand for:

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Constitutional separation of church and state

A secular republic, free of hereditary privilege

Pro-choice regarding abortion

…

No anti-discrimination exemptions for religious schools and businesses

The right to die

Voluntary euthanasia

Scientific research unlimited by unfounded religious objections

(emphasis mine)

9. In my respectful submission, two issues stand out from the reading of their aims:

(a) That they do not care for the affects and the evidence of the consequences of their policy; and

(b) That they believe in the positivity of science, and, that people should let science do whatever science is capable of doing and should investigate what more science is cable of doing.

WHO’S VALUES: HUMANIST SOCIETY OF NEW SOUTH WALES

10. The Humanist Society of New South Wales Inc which is affiliated with the Council of Australian Humanist Societies and the International Humanist and Ethical Union seek the separation between church and state.

Suicide and Infanticide are Core Values of Atheistic Humanism

11. Humanist Society of New South Wales Inc affirm the 1973 work “ analysis and report about Voluntary Euthansia by a Committee led by Dr Jim Woolnough (deceased).” http://www.hsnsw.asn.au/euthanasia.html

12. I oppose this view point and am concerned by it. It is of no surprise that humanist movements in Europe see doctors support infanticide from the medical profession.

ASSISTED SUICIDE

Intending suicides should be able to seek and obtain assistance for the act of suicide, but safeguards against abuse are necessary. Assistance is needed if the individual is incapable of carrying out suicide, or if he wishes the procedure to be made easier, more dignified or less distressing.

NON-VOLUNTARY EUTHANASIA (N.V.E.)

Non voluntary euthanasia could cover:

Babies grossly mentally or physically handicapped;

Children grossly mentally or physically handicapped;

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The severe mentally afflicted;

Senile degenerates.

It does seem undesirable to keep these unfortunates alive. Their continued existence burdens relatives, friends and the community, and often, though not always, themselves.

By the nature of their disability they are unable to consent to E., and this poses severe moral and legal problems. Two possible avenues of escape from these problems have been mentioned. One is the giving of consent in advance, as described under Convertible Euthanasia; the other is mentioned in Item 2 on page 2, where we suggest that there is a case for restoring to the mentally ill, the right of consent to E. under certain conditions. Careful legislation would be required to cover this category, because at present no person legally under protective jurisdiction is regarded as capable of giving consent to anything. However doctors, and others, are aware of many cases of patients suffering from major mental illnesses such as schizophrenia, paranoia, or prolonged depression, who have sought and obtained the best medical advice over the years, with little benefit. They have eventually committed suicide, and one feels that it is the sanest thing they ever did, and they should have been assisted to do so, if this was their wish.

The only one of the categories of non voluntary euthanasia listed above on which the Society wishes to make recommendations is the case of the newborn baby with gross defects.

THE NEWBORN BABY

If a baby is born with severe mental or physical disabilities, such as are sure to make it a misery to itself or to those who have to look after it, its life should be terminable by legal process before any person becomes emotionally attached to it.

Doctors may sometimes take no steps to sustain such a baby, or may even hasten its end.

Whereas there appears to be a good deal of sympathy for such action or inaction, the position is not really morally tenable because the right of parents to take this decision plainly overrides that of a doctor, and the right of society to grant any rights at all in this area could be taken to override those of the parents, as they do in any case regarded as murder.

Sympathy for a doctor in this position derives from a situation of expediency, because he is present, alert, knowledgeable and in a position to take swift action.

The difficulty is that this expedient is not morally justifiable. It is the hypocrisy and moral cowardice of society which forces such a decision on a doctor. By failing to face up to the problem, and by failing to arrive at a standpoint on the issue, society washes its hands of the affair and expects the doctor to act as final arbiter, without any social or backing.

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The problem could be met by passing a law granting to parents a right to assign certain discretion to a doctor. Such granting of discretion would have to take place during the pregnancy, and would take a legal form.

In the absence of such discretion legally granted before the birth, the consent of both parents would be required at the birth, unless the father was unknown or could not be located in a reasonably short time - in which case the mother's permission would be adequate, and her wishes should be respected and regarded as final.

13. It is clear from this evidence from the Humanist Society of New South Wales Inc that they have intention to make the “slippery slope” take place – and the Committee says that there is “no evidence” of a slippery slope.

14. It should come as no surprise that Dr Rodney Symes has been named as Australian Humanist of the Year for 2017 for this euthanasia campaigning.

WHO’S VALUES: NATIONAL COUNCIL OF HUMANIST SOCIETIES

Supporters of Euthanasia who are known atheists or acclaimed by atheists

# Name Org Role Status Comment

1 Julian DWDN/V Ambassador Acclaimed 2009 Australian Humanist of the Year Burnside AO by atheists Citation Being: “In recognition of their courageous human rights advocacy, coordination of and participation in much needed assistance programs to asylum seekers after the disgraceful Tampa 'children overboard; incident (August 2001).”

2 Jane Caro DWDN/V Ambassador Atheist 2013 Australian Humanist of the Year Citations being: “In recognition of her public advocacy of atheism, secularism and ethics as a product of informed and reasoned discussion. In espousing these core Humanist ideals, Jane has been outspoken on a wide range of issues, particularly equality for women and the need for high quality public education.” https://en.wikipedia.org/wiki/Jane_Caro Caro is a feminist and atheist.[9]

3 Peter Singer DWDN/V Ambassador Atheist 2004 Australian Humanist of the Year Citation Being: In appreciation of his outstanding contribution to ethics. With uncompromising commitment to clear thinking and to secular democratic principles, he has developed reasoned, practical approaches to contemporary human problems.

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Supporters of Euthanasia who are known atheists or acclaimed by atheists

# Name Org Role Status Comment His courageous re-appraisal of traditional ethics gives guidance for the challenges raised by biotechnology and promotes ethical relations with the biosphere. His work further many Humanist causes.

4 Greg Combet DWDN/V Ambassador Atheist https://en.wikipedia.org/wiki/Greg_Combet AM Combet has stated that he is an atheist.[23]

5 Gareth Evans DWDN/V Ambassador Atheist?? 1990 Australian Humanist of the year AM Citation being: In recognition of his commitment to a humanist approach to political decision making and, while Australia's Foreign Minister, for his outstanding contribution to furthering a peaceful resolution of international conflicts.

6 Former DWDN/V Ambassador Atheist 2010 Australian Humanist of the Year Australian Citation being: “For a wide range of Greens endeavours in the political sphere advancing a Senator Bob range of humanist values. As a publicly Brown avowed atheist he has been outspoken over many decades on numerous matters of concern to Humanists.”

7 Philip Adams DWDN/V Ambassador Atheist 1987 Australian Humanist of the year Citation being: “For his outstanding contribution as author, columnist, and public speaker in making the Australian community more informed, less superstitious, more caring, more rational society and therefore more humanistic.”

8 Mr John Bell DWDN/V Ambassador Atheist 2016 Australian Humanist of the Year AO

9 Dr. Philip Exit Medical Atheist 1998 Australian Humanist of the Year Nitschke Australia practitioner Citation being “In recognition of his and voluntary outstanding contribution to furthering the euthanasia cause of voluntary euthanasia. Despite campaigner opposition and many setbacks he showed that the Northern Territory's ground breaking Right to Die Bill was needed and workable.”

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Supporters of Euthanasia who are known atheists or acclaimed by atheists

# Name Org Role Status Comment

10 Hon. Step DWDN/V Ambassador Acclaimed On February 11th in South Australia the Hon. Key by atheists Steph Key presented a new Voluntary Euthanasia Bill to the South Australian Parliament. http://atheistfoundation.org.au/media- release/voluntary-euthanasia-deserves-a-real- debate/

11 Peter Go Gentle Journalist Atheist Cites “its time” ie time for social change, Fitzsimons including an Australian republic Chair Australian Any social change is good change and he will Republican be quick to say, a Commonwealth is too Movement conservative, but vote for a republic and the republic will give you the right to prevent pain Former by allowing euthanasia. Rugby Player

Note also, The Hon. Rupert Hamer MLA who is cited in the Final Report at 6.1.1 as seeking the decriminalization of suicide, was also a staunch republican. So Social change, and saying that the old ways of thinking including religion was convenient for his republican agenda.

“6.1.1 In his second reading speech, the Hon. Rupert Hamer MLA observed that the law prohibiting suicide ‘is open to strong attack on the ground that it is based on factors which do not now apply in a modern society.’680”

12 The Non Former Atheist Cited by Mr Denton in Episode 17 – Why do I Honourable, aligned Prime have to go through Hell to get to Heaven? of Mr Bob Minister his series “Better Off Dead” and accredited Hawke AC with the following words; Bob Hawke: I think it is absurd that we should say that it is illegal that a person who is suffering terribly and is in an irremediable condition should be forced to continue to suffer. It doesn't meet any requirements of morality or good sense. Andrew Denton: This is Australia’s former Prime Minister Bob Hawke. When he says … Bob Hawk: It is absurd that euthanasia is not legal within this country.

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Supporters of Euthanasia who are known atheists or acclaimed by atheists

# Name Org Role Status Comment Andrew Denton: ..he is speaking for the overwhelming majority of Australians.

Legend

DWDN/V = Dying with Dignity in New South Wales and Victoria

SOCIAL DARWINISM

15. It is of no surprise that the Atheist and Humanist who worships the outlook and selection theory of Mr Charles Darwin also support euthanasia. Is this social Darwinism at work? I suggest that, that is the case. Further I strongly suggest that there is a latent discrimination just waiting to be given life in Australia law by permitting euthanasia against “undesirable” parts of the Australian population. This is perhaps what Mr Dr Christopher Newell AM, Associate Professor and Lecturer in Medical Ethics, University of Tasmania wrote in his article to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 “Medical killing and people with disability”

A Risk to the Vulnerable Yet is there a case for arguing that legalising medical killing could put the lives of some who are powerless or vulnerable at risk? It certainly may be argued that the proponents of these arguments need to demonstrate their validity, in that it involves the legal curtailment of human freedoms and therefore requires some form of argument to justify it, (Hwang, 1995)

…

Of course, treating this just as a philosophical argument, I would agree that there needs to be some form of argument for a curtailing of people's actions. This may be found in those arguments which point to the experience on the margins, including people with disabilities in the Nazi regime. These may be used to examine whether or not euthanasia laws could bring about direct or indirect harm to people with disabilities. Certainly, the WORK OF VARIOUS DISABILITY ADVOCATES IN Australia supports such a proposition. (See for example Alister, 1994; Fitzgerald 1994 & 1996; Galbally, 1995; Hume, 1995; Leipoldt, 1996) Likewise the work of Robert J. Lifton (1985) regarding the medical killing which occurred in the Nazi years also supports such an argument. There would certainly seem to be some similarities to the Nazi regime, although the discrimination which occurs in today’s society is much more insidious.

Certainly discrimination against people with disabilities may not have been totally based upon hatred of people with disabilities (although this could be said for the Jewish race) Rather, those were designated by Nazi ideology as “life unworthy of life” were either blamed for society's misfortunes or seen to exist to the detriment of both themselves and society. This is in accordance with the social Darwinist principles that we

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see today, found in the notion that we should ensure that only the fittest survive, and those notions of fitness and goodness are defined very narrowly.

In current Australian society the social Darwinism which informed Nazi doctrine lives on in a much more subtle form. It is found in the ideologies which support the screening and termination of those with genetic disease, which was actually one of the corner stones of the social Darwinist movement in the early 1900’s, not only in Germany, but in all Western societies. Such thinking locates problems within the individual as opposed to the narrow norms provided by society. It uses narrow notions of health to suggest that some of us are less fit, or would be less desirous of life if we only had a right perception. It also justifies the termination of many foetuses that are deemed to have a risk of particular disabling conditions, and the sterilisation of people with disabilities.

EUGENICS AND EUTHANASIA

16. Naturally, I would be delighted to know:

(a) how many politicians;

(b) how many leaders of Dying with Dignity; and

(c) how many euthanasia advocates in Belgium, the Netherlands, Canada, Oregon, Luxembourg and Australia (if any) are believers in eugenics.

I expect that a lot of people which disabilities would like to know the same thing.

Eugenics (/juːˈdʒɛnɪks/; from Greek εὐγενής eugenes "well-born" from εὖ eu, "good, well" and γένος genos, "race, stock, kin")[2][3] is a set of beliefs and practices that aims at improving the genetic quality of a group of individuals.[4][5] The exact definition of eugenics has been a matter of debate since the term was coined.

See further https://en.wikipedia.org/wiki/Eugenics

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Annexure 61.: Christianity CHRISTIANS WHO ARE AGAINST EUTHANASIA (IN ANY OF ITS FORMS)

1. The Greens and all people must refrain from the excessive, emotional and angry attitudes of people who want the blame others for their situation. It appears to me that both the Committee and many others are called into agreement with euthanasia due to strongly worded emotional outbursts. One such example was brought to my attention in Mr Denton’s series “better off dead” in Episode 3 – The 80-year-old outlaw. This episode included the following:

Jon Faine: Steve from Point Lonsdale's on the line. Good morning, Steve.

Steve Guest: Morning, Jon.

Jon Faine: What can we do for you?

Andrew Denton: On a cold winter’s morning in 2005, top-rating radio host Jon Faine took a call from a listener for which he was completely unprepared.

Steve Guest: I can't see any Christian compassion. I'm dying an awful death.

Jon Faine: You're what, sorry?

Steve Guest: I'm dying an awful death of cancer. I have cancer of the oesophagus, which means that I can't swallow. I'm as good as dead now, Jon. I've probably got less than a fortnight to live, at this stage. And for the past few months, I've had no quality of life whatsoever. I'm in pain 24 hours a day. I can't eat, I can't do anything, I'm as weak as a kitten. I can't even hang washing on the line, and I want my life to end. And that's all I ask. And these bastards who call themselves Christians, they won't let me have that death, Jon. And that's all I want now. I want a pill in the cupboard that I can reach for, and take it, and end this nightmare that I'm living at the moment.

Andrew Denton: As Melbourne listened to Steve Guest’s desperate wish to die, one man stepped forward. His name was Doctor Rodney Syme, and he is Australia’s oldest outlaw.

2. People are motivated to hate Christians, ignoring all other issues that affect and issues that are affected by euthanasia.

3. That there was an overbalance towards sympathy for reasonless emotional pleas, is made plain in the Final Report where it says as follows:

4. Mr Denton, in his speech to the NPC, clearly states that the majority of the Committee was intimidated and “rocked” and overcome by personal testimony of the Victorian Coroner. In Mr Denton’s words from his speech, he said as follows:

What is undeniable is that desperate people take desperate measures. And here we turn away from anecdote and private pain to the formal findings of the cross-party Victorian Parliamentary Inquiry into

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End of Life Choices, the most extensive inquiry of its kind ever held in Australia, which reported in June this year. And which mirrored the anguished testimonies listed here.

It found repeated examples of inadequate pain relief and of deep suffering beyond the reach, even, of palliative care. It found doctors breaking the law and relatives being put on trial to relieve the torment of their patients and loved ones. Most shocking was the testimony of Victorian Coroner, John Olle, who detailed the horrific ways in which desperately ill Victorians were – are - taking their own lives to end their suffering.

His evidence rocked the Committee, and was so distressing the Coroner had to collect himself three times while speaking – including the case of a 90-year-old man with cancer who killed himself by repeatedly firing a nail gun into his head and chest. Coroner Olle went out of his way to stress that these were people without a history of mental illness, from loving families, faced with the slow, ‘irreversible decline’ of chronic disease.

He said his office saw no way of preventing these deaths, quoting directly:

“To my knowledge the people we are talking about have made an absolute clear decision. The only assistance that could be offered is to meet their wishes, not to prolong their life”

He estimated the number of elderly Victorians dying in this way - by suicide to escape the ravages of disease - at 1 a week.

Faced with such evidence, the Committee found that maintaining the status quo was unacceptable and this was a clear case for law reform.

5. Is this use of emotional testimony what the majority of the Committee means when they said that they did not rely “solely” on arguments for and against euthanasia. Clearly, they relied on emotional stories and emotional pleas.

The Committee’s research in Victorian and international jurisdictions has satisfied it that the methods used in assisted dying are medically sound and help that small cohort of patients who want this option to achieve a peaceful death. The evidence is conclusive that assisted dying can be provided in a way that guards against abuse and protects the vulnerable in our community in a way that unlawful and unregulated assisted dying does not.

The Committee chose not to focus solely on the arguments for and against legalising assisted dying. These are well known and have been addressed in many different reports and research papers, both in Australia and internationally. The arguments put forward in evidence to the Inquiry reflected these and were consistent with arguments the Committee examined during its research process.

The Committee’s recommended assisted dying framework allows for adults with decision making capacity who are at the end of life, and suffering from a serious and incurable condition which is causing enduring

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and unbearable suffering that cannot be relieved in a manner the patient deems tolerable to request assisted dying.

Per “executive summary” in relation to “Chapter 8”

6. Given the undue emphasis on emotional testimony, which was not cross examined and is therefore uncorroborated as to the extent of any truth in the claims of suffering, those who do not get to give testimony, such as in Belgium other than a teleconference and the Committee does not see the harm of people who have suffered at the hands of euthanasia, those who do not get the chance to be heard in person are at a serious and manifest disadvantage. There is also no reason for why the amount of weight was given to this testimony of the Victorian Coroner. This lack of reasoning for why this oral emotional testimony was given greater weight than the statistical evidence of abuse is another reason to suspect the whole majority report.

7. In addition to the above, I also submit the following:

(a) Jesus, who is God, created the world, and created people;

(b) No person has the right to murder another person;

(d) Death is something that has come into this world as a result of human sin;

(e) Death is a punishment for sin;

(f) Sin is rebellion against God, out creator, and wanting to live lives out own way not under God’s rule;

(g) Only God has the right to say when a person dies;

(h) Jesus died, to take the punishment of eternal death and cause anyone who trusts in his death to accept God’s forgiveness as a free gift, by faith alone, not earned; and

(i) Christianity does not cause people’s suffering.

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Annexure 62.: Vernacular & Colloquial Assessment Part 1 - The “Pub Test” 1. In my view, the lack of transparency of the majority of the Committee and the problems of euthanasia are so patently obvious to anyone who:

(a) not clouded by political persuasion/ objectives;

(b) wanting to take an honest look;

(c) wants to be able to see that their elected politicians look at all the evidence to as to protect the people they are elected to represent;

(d) sees that looking at all the evidence makes sense, because that is what people must do on all issues; and

(e) wants to be kept safe from people who have dangerous ideologies.

2. In my view, even the most unlearned of people can be considered to have the characteristics (a) through to (e) in the above list, even if they do not articulate them when they discuss social issues in their local:

(a) tavern;

(b) bistro;

(d) restaurant

(e) roadhouse;

(f) hotel; or

(g) pub.

QUESTION TO ASK AT THE PUB

3. In my view, even the most unlearned of people can see that the action of not considering the evidence, is like asking if there has ever been a test match cricket triple century scored at the Melbourne Cricket Ground and saying:

“No, there is no evidence to say a test match cricket triple century as ever been scored at the MCG. Sir Don Bradman scored 270, Sir Vivian Richards scored 208, but no triple century has ever been scored and there is no trend in that direction. The 307 by Mr Bob Cowper against England in 1966 at the Melbourne Cricket Ground is not relevant and not to be considered. It did not really happen official sources say. People who are pedantic want issues like Robert Cowper’s 307 to be considered when answering this question.”

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Annexure 63.: Vernacular & Colloquial Assessment Part 2 - The “Pell Test” 1. In my respectful submission, not only would euthanasia law when understood by the general population of Victoria and Australia, failed the “Pub Text” I would also most certainly fail what I have decided to call the “Pell Test”.

2. The Pell Test is this:

“Would the proposed action or omission, if were made known, have the same reaction that people do to Mr. George Pell in his alleged action or inaction regarding keeping children safe and dismissing and reporting pedophile priests, namely would the proposed action or omission:

(a) cause the police to investigate;

(b) cause police to travel to Italy to investigate;

(d) cause channel nine’s sixty to spend 20 years trying to convict the person/ oranisation of wrong doing;

(e) would it make newspaper’s front pages;

(f) would there be community outrage at an equivalent level to people sledging Mr. George Pell; and

(g) would people accuse that person/ organization of not being loving enough.

In my view, euthanasia does and will do again in Victoria and throughout Australia more harm than:

(a) the pedophile priests collectively; or

(b) and certainly more harm than what Mr George Pell on his own

3. For the record, I doubt that Mr George Pell would even want to do harm.

4. I do not expect that it is as popular to criticise the medical profession and others as what it is to accuse Mr George Pell so there will never be rapturous condemnation of such practice as there is against Mr George Pell.

5. The irony is that people often say:

“George Pell did not do enough to prevent harm and did not do enough to punish harm, even if he was not a perpetrator”

Yet when Christendom opposes euthanasia so that no harm will be done, we get opposed. How lamentable that is.

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Annexure 64.: Euthanasia Contrary to Other Policies of the Australian Greens 1. I consider the introduction of euthanasia will be contrary to the Australian Greens polices of Justice. This is for the following reasons:

Greens policy statement: “Justice, The chronic under-funding of legal aid and community legal centres results in people missing out. A just society is a healthy society.”

Item Principles: The Australian Greens believe that: Euthanasia is contrary for the following reasons.

1 All Australians have a right to a safe, peaceful and Euthanasia creates a situation that is not safe; ecologically sustainable existence, free from crime and Euthanasia destroys the peace. fear of violence. People will live in fear of “loving” violence that will kill them for their wealth.

2 The rule of law, the protection of human rights and The rule of law must protect people from timely access to justice for all people are fundamental abuse. Democracy means religious based to a democratic society. opinions must be heard. Rule of law demands that the administrative law objections I have must be considered and given full and proper weight.

3 The separation of powers between the executive, the Not an euthanasia issue. parliament and the judiciary is crucial to the maintenance of freedom, justice and democracy.

4 Equality before the law can only be achieved when The recognition that people who are depressed, there is recognition of the way in which cultural, social old, ill and mentally ill make decisions that are and economic structures and practices influence not in their best interests must be made, decision-making processes and affect people's choices understood and protected against. and opportunities.

5 The fundamental principles of the right to a fair hearing It is a fundamental right that opponents must – such as access to open, impartial and independent get a fair hearing. There was no fair hearing for courts and, in the case of criminal proceedings, habeas the reasons set out in this paper with the way corpus, the right to silence, the right to be presumed the Victorian inquiry was conducted (not going innocent until proven guilty according to law, and the to or considering Belgium) and not giving right to a trial by jury – must be preserved and upheld. reasons. Did not turn its mind, and the absence of reasons gives a presumption that the person making the submission was not heard by the decision maker.

6 Access to justice requires policies and resources that This accss to justice means that resources need overcome social, economic and cultural inequalities to to be put into palliative care, to give people ensure equality before the law. access to the care that they need – especially if they paid tax during their live and contributed to the cost of palliative care for others in previous decades.

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Item Principles: The Australian Greens believe that: Euthanasia is contrary for the following reasons.

7 Australian law must address the particular cultural and I hope that we NEVER see the day when social needs of Aboriginal and Torres Strait Islander Aboriginal and Torres Strait Islander peoples peoples. get categorised as receiving euthanasia for not being white. Their higher rates of disease etc than white Australia means they may have more chance of falling into an illness based reason for receiving treatment in the form of euthanasia.

8 Australian law must address the historical and I hope that we NEVER see the day when continuing injustice faced by Aboriginal and Torres Aboriginal and Torres Strait Islander peoples Strait Islander peoples. get categorised as receiving euthanasia for not being white. Their higher rates of disease etc than white Australia means they may have more chance of falling into an illness based reason for receiving treatment in the form of euthanasia.

9 A fairer, socially just, more economically equal, and A fairer society will value old, sick etc people inclusive society will improve social cohesion and and give them dignity to them despite the fact reduce crime. that they are no longer young, beautiful and healthy – which a commercial society values over valuing people who are an “inconvenience”.

2. I consider the introduction of euthanasia will be contrary to the Australian Greens polices of “Children and Young People”. This is for the following reasons:

Greens policy statement: “Children and young people must have greater opportunities to participate in decision making affecting their lives.”

Item Principles: The Australian Greens believe that: Euthanasia is contrary for the following reasons. Children and young people have a right to a loving and Overall, I agree. 1 nurturing environment which is free of physical, Emotional abuse can include pressure to agree emotional and sexual abuse, neglect, exploitation and to die. discrimination. Physical abuse can mean death at the decision of a doctor. To reach their full potential and live a healthy life, And the avoidance of influence by family and 2 children and young people should have access to family doctor to die. resources, education and opportunities for personal growth, lifelong learning, and participation in decision making about their lives.

The needs and views of young people should be taken Including when they want to live. And 3 into account by all those involved in developing and presume they do when they cannot implementing policies that impact on young people. communicate this for lack of capacity to do so.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 298

Item Principles: The Australian Greens believe that: Euthanasia is contrary for the following reasons. All children and young people have a right to access Those services include health services and 4 appropriate services regardless of where they live or the palliative care services. socio-economic status of their parents. Prevention strategies play a significant role in setting Prevent kids from suffering emotional harm by 5 children and young people up for lifelong success and not having their elders, siblings etc commit giving them a good start in life. The development and suicide all around them. implementation of policies and strategies which Intervene in the lives of the loved ones of emphasise prevention and early intervention reduce young ones so the young ones see value in future harm to people and in the long term is cost living. saving to society. Quality outdoor green spaces are essential for healthy See, even the Greens admit, dignity comes 6 childhood development including physical, from things like enjoyment of life, like being psychological and social health. around others who love and interact with the person who is suffering – even in the great outdoors. Aims: The Australian Greens believe want No 7 A reduction in the rates of suicide and mental illness This will not be achieved by introducing and among children and young people through adequate esteeming euthanasia. funding for mental health services. No 8 Adequately funded children's and young people's This will not be achieved by introducing and services, particularly for addressing mental health, esteeming euthanasia. suicide, drug abuse, sexual health, disability or special care and protection needs.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 299

Annexure 65.: Lessons about “Self Harm” from “Beyond Blue” 1. When I read the website of beyond blue, a national depression website here in Australia, I see that they recommend for people who are struggling with depression issues and self harm. 2. A lot of the dignity encouraging things that I have asked people to focus on – in lieu of focusing on way/ excuses to kill people. I note the following comments see - https://www.beyondblue.org.au/the-facts/self-harm- and-self-injury :

Self-harm and self-injury

Self-harm might be part of your experience now, but it doesn't have to be in the future – you can learn to care for yourself emotionally and physically. Changing your self-harming habits is about learning to cope with your urges to self-harm, finding new ways to express how you feel, having the right support, and improving your general health and wellbeing.

Self-harm refers to people deliberately hurting their bodies. It is usually done in secret and on places of the body that may not be seen by others. The most common type of self-harm is cutting, but there are many other types of self-harm including burning or punching the body, or picking skin or sores.

Why do people self-harm?

In general people self-harm as a way of coping. People often talk about harming themselves as a way to relieve, control or express distressing feelings, thoughts or memories. Some people harm themselves because they feel alone, while others do so to punish themselves due to feelings of guilt or shame. However, the relief they experience after self-harming is only short term and at some point the difficult feelings usually return. With the return of these feelings often comes an urge to self-harm again. This cycle of self- harm is often difficult to break.

Most people who self-harm are not trying to kill themselves, but there's a chance that they may hurt themselves more than they intended to; this increases their risk of accidental suicide. People who repeatedly self-harm may also become suicidal and feel hopeless and trapped.

Finding other ways to cope

It is possible to learn to manage really intense feelings in ways that don't cause harm, and many of these alternatives can also offer you long-term relief. It can be hard and at times confronting to break free from your self-harming habits, but just take it one step at a time.

Some people can begin this process on their own but many need the support of their friends and family. If your self-harming is particularly intense or long term, then the support of a health professional will be essential.

Learn about ways to cope in our Self-harm and self-injury fact sheet

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 300

Get support

Having supportive people around you is always important. Surround yourself with people that you trust, who will listen to you without judgment and who you enjoy being with. It’s good to work on some things that you can do for yourself, but you don't to have to face this challenge alone. It's important to let others know how you feel when things don’t go to plan. Don’t build up worries, anger or disappointments – talk about them.

A counsellor, psychologist or doctor can help you to work out what is triggering your self-harm, and begin to work with you on managing your difficult thoughts and feelings. Talk to your GP or find a mental health professional. You can also call a crisis line like Lifeline – 13 11 14.

How family and friends can help

If you're worried about someone who is self-harming, it's important to talk with them about it. It can be a hard conversation at first so approach it with care, respect and without judgment. Let them know that you're there for them and encourage them to seek help.

It can be overwhelming and at times distressing to know someone you care about is self-harming. To look after others you need to also look after yourself – try to get enough sleep, keep fit and healthy, and seek your own support from friends or professionals.

Expert opinion, Dr Nicholas Cooling

3. I find support for the Beyond Blue description above from Dr Nicholas Cooling, Senior Lecturer in Medical Practice, University of Tasmania and General Practitioner , in his paper to the inquiry into the Dying with Dignity Bill 2009 in Tasmania, where he said:

Suffering What is more significant for our patients, particularly those at the end of their life, is the suffering that comes from loss of meaning and purpose. The suffering is profound but is not hopeless. We physicians can address it by being present for our patients, by giving weight to their experience, and by becoming the kind of doctors we always wanted to be. (Chen 2007).

…

What most dying patients want is a skilled, compassionate doctor who is sensitive to their physical, mental and spiritual needs and who is willing to journey with them as they leave the world.

See the RealDignityTas website for the full paper.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 301

Annexure 66.: The Groningen Protocol: Down’s syndrome; deafness; blindness and cerebral palsy 1. I consider that as surely as night follows day, if any state of Australia legalizes euthanasia then, the following will happen:

(a) Pro-euthanasia lobbyists other states will seek for the equivalent legislation. Like LGBTIQ lobbyists who lobby for same sex marriage, they will adopt the following approach:

“We are wanting to building on the momentum of [Victoria]”

(b) Pro-euthanasia lobbyists other states will cite inequality based on where a person lives:

“Why does a person who is not a resident of [Victoria] forced by governments in other states and the federal government to move to [Victoria] to find the relief from pain that they want? That is undignified! That is discrimination.”

(c) Pro-euthanasia lobbyists other states will say there is inconsistency and a lack of harmony in laws in competing states:

“We need to have a “national approach” so people know what the law is in whatever state they live in. Doctors need to know, patients and their loved ones need to know. This will make everything so much more efficient and reduce the administration. This will give these people more comfort in a time of need.”

(d) When the above is achieved, then, there will be others who will then say that we are not progressive enough and we need to Groningen Protocol in Australia. They will say something like:

“There is no slippery slope issue. There is no slippery slope shown to exist overseas or in Australia. We want legislative reform to allow euthanasia of newborns like in Europe. It is time for Australia to catch up with what is being done elsewhere. Others are doing it. We are lagging behind comparative economies and western countries where we adhere to the rule of law on caring for people who are dying, suffering and who have no prospects of having a pain free and dignified live. We are causing people to suffer and live in suffering. We have seen the Groningen Protocol in the Netherlands, we think it is safe and we need it here. This is not slippery slope. This is further law reform which should have happened years ago. We should think of how much suffering we could have prevented if we had this since euthanasia was first legislated. The Dutch have an “x-ray” vision of all the deaths, each and everyone one, and it is all safe.”

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 302

2. If these pro-euthanasia lobbyists are successful in introducing the Groningen Protocol into Australia, then I see that all the following types of newborn children will be at risk of being classified as being suitable candidates for receiving the “protocol” done them:

(a) kids born with downs syndrome;

(b) kids born with cerebral palsy;

(d) kids born with weak vital organs (eg a weak heart);

(e) kids born blind;

(f) kids born deaf;

(g) kids born to parents with mental illness;

(h) kids born into situations of extreme poverty;

(i) kids born with missing limbs; and

(j) kids born with any other observable birth defect.

3. I have no doubt that given the propensity for doctors and nurses to kill, and the willingness of doctors to kill babies as admitted so widely, and an Australian of the Year nominee advocating for infanticide, that all the above classes of newborn children:

(a) will meet their fate before the age of one (1) week;

(b) will meet their fate without their life and death being recorded;

(d) will meet their fate in a society not caring if that kid lives or dies; and

(e) will meet their fate without the Australian Greens’ policy on young people intervening to save them.

4. I hold a greater concern for the child when:

(a) the mother is a single mother;

(b) the mother is a sex worker; and

(c) the mother is a commercial surrogate mother. No one will want to purchase the baby who is deformed and will want the baby to be gotten rid of.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 303

Expert opinion – Mr Ray Groom, Former Premier of Tasmania.

5. In the words of the Honoruable Ray Groom, Former Premier of Tasmania and Chairman of Southern Cross Care, In a submission to the Joint Standing Committee on Community Development on the Dying with Dignity Bill in 2009 titled “Aged care - protecting the vulnerable”, where the former Premier of Tasmania said

We wish to refer to a speech made in the House of Lords in the United Kingdom earlier this month on 7 July 2009 by Baroness Campbell of Surbiton when debating proposed euthanasia related legislation. Baroness Campbell is herself severely disabled. She referred to a gathering of 100 disabled people with terminal conditions who opposed an earlier euthanasia Bill. She said in her speech as follows:

"We were there for a very simple reason: because we feared for our lives and the lives of hundreds of other disabled people if the Bill were to become law. Our belief was that if the State were to sanction any person to assist another in the ending of that person's life, it would switch the mindset of doctors and those who would help us in this country to thinking that that is what we really want- the very people who need every encouragement to live and not to succumb to society's prevalent view that our situation is so tragic, so burdensome, so insufferable that surely we must want to die. It takes an extraordinary will to rise above such views, and many do not, especially when those views are held by our loved ones. That is when it is the hardest. "

The Baroness later added:

" ... not a single organisation of or for terminally ill people or older people support this assisted dying legislation. That includes organisations that advocate on behalf of people with motor neurone disease and multiple sclerosis - two disabling conditions that are often referred to when describing who would benefit most from the legislation. "

(House of Lords. 7 July 2009 : Column 613)

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 304

Annexure 67.: Nazi Germany and Dehumanizing People Deemed Suitable to be Killed in Australia 1. I do not want to dwell too much on calling people Nazi. That is usually not what will win an argument. However, the Go Gentle Australia website and even Christians for Euthanasia website raise the issue of Nazi Germany and the Second World War. 2. In my view, I see: (a) categorising people with physical illness as being suitable to die; (b) categorising people with mental illness as being suitable to die; (c) categorising unborn babies with prospects of difficulties in life as being suitable to die; (d) categorising newborn babies with prospects of difficulties in life as being suitable to die; (e) categorising people who are about to die and therefore should be encouraged to die; (f) considering deaths of people as being mere numbers on a spreadsheet to know if a plan for killing is being effective; (g) categorising the deaths of people who should not have been killed as not worth investigating; (h) categorising people who will have a difficult life as causing too much of an onerous obligation onto those who are going to need to care for them As being just a mere one micrometre away from being the same as: (a) not permitting Jewish people to represent Germany at the 1936 Olympic Games; (b) not permitting Jewish people to own property; (c) permitting Jewish people’s businesses and homes to be torched; (d) killing Jewish people as part of a ‘final version” to deal with the Jews; and (e) denying the Jewish people to have “dignity” in the form of “choice” of where to live, how to live and to identify as being German. 3. Need I mention the callous behaviour or Mr Wim Distelmans taking people for study tours of Auschwitz to learn more about his plans for euthanasia. This is surely an insult and shows: (a) a lack of reception to any kind of morality by this person; and (b) what happens to a doctor when a doctor kills people and gets accustomed to metering out death.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 305

Annexure 68.: Victoria’s LGBTIQ Inclusion Plan and Euthanasia

OH, THE IRONY OF IT ALL

1. I lament the irony of how Christians are blamed for everyone’s pain and suffering:

(a) One on hand, we are accused of causing depression and suicide in LGBTIQ people because we are called "hater“ of people who are LGBTIQ (when we do not hate them at all) do not allow same sex marriage; and

(b) On the other hand, we are accused by such people as the Honourable Mr Marshall Perron, Mr Denton and others as being people who cause people’s suffering for not letting them commit suicide.

2. On 30 May 2015 and 25 August 2016, I wrote to Mr Bill Shorten, Leader of the Opposition in the Federal House of Representatives, setting out my views on same sex marriage. He is yet to reply. In those letters, it is clear that we Christians do not hate LGBTIQ people and that he induces self-esteem problems in LGBTIQ people by telling them they are hated when they are not. I can provide these letters to you for your information if you wish.

THE VICTORIA GOVERNMENT LGBTIQ

3. I hold the view, there euthanasia will have adverse consequences for people who are LGBTIQ people.

4. The rhetoric (which is probably correct) that so many LGBTIQ people commit suicide above national averages causes me to consider the following:

(a) that LGBTIQ people will continue to suicide when they are (falsely) told that Christians do not like them;

(b) that LGBTIQ people will look for options to kill themselves;

(d) that some doctors will get a reputation for being willing to assist the LGBTIQ people die;

(e) that the above doctors will not care for protocols, laws or if the person has a fatal illness and death is imminent (in the next couple of days); and

(e) that the numbers of LGBTIQ people committing suicide may go up.

5. Wim Distelmans, from Belgium, did euthanasia a transgender man who was unhappy about the new life.

CONTRARY TO THE LGBTI INCLUSION PLAN

6. I hold the view that the Government of Victoria must show consistency in caring for LGBTIQ people by:

(a) showing LGBTIQ people that people who oppose same sex marriage do not hate LGBTIQ people; and

(b) with keeping LGBTIQ people alive by ensuring that euthanasia does not come into Victoria.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 306

7. This is my email to the Victorian LGBTIQ+ inclusion plan task force.

------Forwarded message ------From: David Foletta Date: 18 June 2017 at 21:47 Subject: Fwd: David Foletta - Substantive and Procedural reasons to oppose euthanasia in Victoria - Letter and Annexures. To: [email protected]

Dear Equality taskforce,

My name is David Foletta.

I am a lawyer in NSW.

I am also an evangelical Christian. Therefore you may find it unusual that I am writing to you to give you a document and to ask for your help.

I do not agree with same sex marriage, and I never will, and I do not believe that same sex marriage is something that God allows Christians to share - we can share out time, money, homes, lives, love, concern and food, but we cannot share marriage.

I write to you to ask you to OPPOSE euthanasia being introduced to Victoria.

I have no doubt that if euthanasia is introduced into Victoria, then LGBTIQ people will see this as an option for dying and relieving themselves of depression and LGBTIQ people will die in greater numbers from suicide than they are currently doing so. The experience overseas is that where euthanasia is introduced is not where it stays for very long. Euthanasia for depression will be legal sooner than we know. I have included an annexure specifically in my list of 40+ annexures to deal with this issue.

Please also be advised, that Christians are not perfect that is true, but we do NOT hate LGBTIQ people. I actually think it is sad that LGBTIQ people think this and that adversely affect them, and then we get the blame.

Best regards always

David Foletta

------Forwarded message ------From: David Foletta Date: Sun, 18 Jun 2017 21:22:55 +1000 Subject: David Foletta - Substantive and Procedural reasons to oppose euthanasia in Victoria - Letter and Annexures. To: "senator.dinatale" , [email protected], [email protected]

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 307

Cc: "samantha.dunn" , [email protected], [email protected], [email protected]

Dear Senator Dr Di Natale

My name is David Foletta.

I am a lawyer.

I attach my letter to you dated 18 June 2017 and annexures thereto

For the reasons I set out in my letter and annexures, I ask you and the Australian Greens to oppose euthanasia in all of its forms in Victoria and throughout Australia.

I actually believe that it is in the interests of the Australian Greens to vote against euthanasia

Thank you for considering my submissions.

Regards -- David Foletta Number omitted BCME LLB GDLP JP 8. This is the only email acknowledgement that I received from the LGBTIQ+ inclusion plan taskforce.

------Forwarded message ------From: Date: 19 June 2017 at 00:12 Subject: AutoReply: Fwd: David Foletta - Substantive and Procedural reasons to oppose euthanasia in Victoria - Letter and Annexures. To: David Foletta

Your message was received. Thank You.

------Please consider the environment before printing this email Notice: This email and any attachments may be confidential and may contain copyright or privileged material. You must not copy, disclose, distribute, store or otherwise use this material without permission. Any personal information in this email must be handled in accordance with the Privacy and Data Protection Act 2014 (Vic) and applicable laws. If you are not the intended recipient, please notify the sender immediately and destroy all copies of this email and any attachments. Unless otherwise stated, this email and any attachment do not represent government policy or constitute official government correspondence. The State does not accept liability in connection with computer viruses, data corruption, delay, interruption, unauthorised access or use.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 308

THE LINKS BETWEEN EUTHANASIA SSM AND ABORTION

9. I have noted that euthanasia, same sex marriage and abortion each:

(a) lead to people being killed;

(b) are marketed as being “safe”;

(d) are opposed by Christians; http://www.massresistance.org/docs/gen/09b/ParkStreetChurch_0428/index.html

(e) are opposed by people who are not even Christians;

(f) opposing them will cause a person be called “conservative” and stuck in the 1950s;

(g) politicians who are progressive assert that the Australian community approves these;

(h) politicians rely on “community support” from very small, ill informed, samples of respondents – often commissioned by organisations that support the advancement of item they are surveying;

(i) the “slippery slope” is denied by supporters, and a concern held by opponents;

(j) they are all supported by the Australian Greens at federal and state level;

(k) are supported by atheists, secularists, humanists and secular science positivists;

(l) where a politician supports one, that politician will usually support all three;

(m) government reports will usually slanted to unjustifiably support them; and

(n) Christians accused of causing harm for opposing them;

(o) the use of dramatic emotional testimonies is a common feature of overcoming peoples’ proper resistance to changing the law (Dying with Dignity Victoria emphasizes the use of emotional testimony to politicians, and this is a common feature of all SSM advocacy);

(p) the approach of “sweet talking” people into agreeing with changes in the law by “stories” and “conversations” is being used to overcome peoples’ proper concerns. (This is seen in both Tiernan Brady regarding SSM and Andrew Denton regarding euthanasia); and

(q) Finally, the all HATE the reference to statistics from what is happening in Europe as being evidence of what WILL happen in Australia.

Euthanasia in New South Wales and the LGBTIQ+ community

10. I am highly critical of the involvement of Mr Alex Greenwich MP in drafting euthanasia legislation As the leader of LGBTIQ+ organisation, he should know the suicide rates and depression rates of LGBTIQ+ and the level of risk that euthanasia poses to them. The office of Alex Greenwich and I have had the following exchange of emails:

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 309

------Forwarded message ------From: ElectorateOffice Sydney Date: 19 June 2017 at 09:11 Subject: RE: David Foletta - Substantive and Procedural reasons to oppose euthanasia in Victoria - Letter and Annexures. To: David Foletta

Dear David

State MPs don’t have any direct involvement in federal legislation.

Alex Greenwich is a co-sponsor of a draft bill for assisted dying in NSW and has been working for some time to get a robust law based on the best aspects of other laws across the world.

The bill has a number of protections and safety barriers built into the provisions including court oversight, two separate independent doctors and a third psychiatrist assessment. There is a cooling off period and the person concerned can withdraw consent at any time.

Regards Roy Bishop JP

http://alexgreenwich.com.au www.facebook.com/alexgreenwich http://twitter.com/alexgreenwich https://www.instagram.com/alexgreenwich/

P Please consider the environment before printing this email.

-----Original Message----- From: David Foletta [mailto:Omitted] Sent: Sunday, 18 June 2017 11:48 PM To: ElectorateOffice Sydney Subject: Fwd: David Foletta - Substantive and Procedural reasons to oppose euthanasia in Victoria - Letter and Annexures.

Dear Member Greenwich,

My name is David Foletta.

I am a lawyer in NSW.

I oppose euthanasia.

I have prepared substantive submissions against euthanasia in the form of a letter with 40+ annexures to Senator Dr Di Natale.

I have included my own opinion and expert opinion.

I ask you to consider my submissions and to oppose euthanasia.

Kindest regards

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 310

David Foletta

Dear Senator Dr Di Natale

My name is David Foletta.

I am a lawyer.

I attach my letter to you dated 18 June 2017 and annexures thereto

For the reasons I set out in my letter and annexures, I ask you and the Australian Greens to oppose euthanasia in all of its forms in Victoria and throughout Australia.

I actually believe that it is in the interests of the Australian Greens to vote against euthanasia

Thank you for considering my submissions.

Regards -- David Foletta Number omitted BCME LLB GDLP JP

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 311

Chapter 6: Indexes and Further Information Annexure 69.: Useful Links 1. For further information, and to learn more about the comments I have included in these submissions, I have included the following table of useful hyperlinks:

Item Organisation Hyperlink

1 Patient’s Rights Council http://www.patientsrightscouncil.org/site/

2 Real Dignity Tasmania http://realdignitytas.com/

3 European Institute of Bioethics www.ieb‐eib.org

4 Right to Life Australia http://www.righttolife.com.au/

5 Beyond Blue Australia https://www.beyondblue.org.au/

6 Euthanasia Prevention Council www.epcc.ca

Please see the hyperlinks the numerous journal articles from various online information’s sources I have obtained comments from. As a rule, I always take down the full article and the URL so that if the URL disappears, I still have the journal article. Please contact the author of this letter/ report for more information on any article cited if required.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 312

Annexure 70.: Definitions

1. I have no objection to the definitions of euthanasia, assisted dying and so forth as set out in the majority report in the Final Report.

2. In this report, I use the term euthanasia to mean all forms of euthanasia as I oppose all forms of euthanasia – whether or not the physician is permitted to send the patient to sleep with a barbiturate or similar and then inject a neuromuscular blocking drug.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 313

Chapter 7: About the Author Annexure 71.: My Background 1. I am a solicitor, admitted to practice in the High Court of Australia and the New South Wales Supreme Court.

2. I am not and I have never been a member of any political party.

3. I was born in Melbourne, Victoria, Australia.

4. I was born to a mother who was and upon first sight of my mother with me, the Nurses advised the Doctors of her incapacity and the Doctors certified her and I was immediately taken off her. I stayed in hospital for a few months, literally nowhere else for me to go, then I stayed at Allambie and then temporary foster care East Bentley and then I went to live with an uncle and auntie.

5. My father is unknown.

6. I expect that many a doctor may have encouraged my mother to abort me, and, upon birth, if the atheists had their way, killed me at birth as I would have been seen as a burden on society.

7. My mother did not inform anyone that she was pregnant, and I was an emergency admission to hospital – so the paperwork records and family folklore has always known. Perhaps she was concerned about being forced to have an abortion.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 314

Annexure 72.: Why I wrote a “big” letter not a “one page” letter 1. I decided to write what some may call a “big” letter rather than a one page quick to read letter for the following reasons: (a) a one pager letter is no more productive than emailing a “fact sheet” from a known organisation telling the reader of this letter what they could find out for themselves;

(b) I – and I expect many others also – find that reading fact sheets for and against euthanasia very confusing unless they are read side by side and the facts alleged in each compared very closely to determine where the same facts are being repeated in different words or different facts are being asserted, this is very important in assessing claims of non-compliance to know what is reality and what is fiction regarding the claims and denial of the claims actually

(c) the more I learned the more I learned that there was to know, and therefore I wanted to form a whole of issue opinion;

(d) the more pro-euthanasia arguments I learned about, there more I saw that different organisations were repeating the same wrong arguments in different words.

(e) I wanted to deal with all of the documents relied upon by the Government of Victoria in relation to the preparation for introducing euthanasia into Victoria

(f) I wanted to show that the concerns of abuse and sliding down the slippery slope is a reality, and this needed to be considered from as many avenues as what are being used to dismiss by euthanasia enthusiasts to support euthanasia.

(g) I wanted to separate out different lines of thought and provide my own thinking in addition to expert opinion and opinions of those who are more learned than me;

(h) The need for case examples of where euthanasia has gone wrong takes documentation and detailed retelling to accurately record, and, this is what people who vote in parliament need to have presented to them to see the euthanasia has and will continue to go wrong; and

(i) I have sought to present this information in a compartmentalized series of annexures to allow the reader to focus in on what areas of my arguments are of most interest to them and to be as a fluid and simple read as I can make of this complex issue.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 315

Annexure 73.: Statement of Independence 1. I have acted independently in the preparation of these submissions

2. I am not, and I have never been a member (however described) of the following organisations:

(a) Right to life;

(b) Patients’ Right’s Council;

(d) HOPE; or

(e) Dying with Dignity or any pro-euthanasia organisation.

3. The designs, thoughts, attitudes are my own unless they have been expressly referenced to another author;

4. I am grateful and indebted to the various experienced and learned opinions to which I have referred, I am appreciative of the wisdom they have provided to me;

5. Where an organisation may be classified, by some, as being “right wing” and arch conservative, I have done so on the basis that they are likely to record and detail non-compliances with legislation. In relying on those accounts of non-compliances I have made attempt to remove all hints of emotion and drama to hold only to the facts of “yea” or “nay” of compliance; and

6. I have not taken any dictation, direction or any other form of mandatory influence from any politician, person or individual.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 316

Annexure 74.: My Involvement in this Debate 1. Several years ago I saw a documentary about euthanasia in Europe mentioning Belgium. I partly recalled name “Wim Distle….” and that he was from Belgium and about a guy losing his farm and wanting to kill himself with others help and that this “Wim” guy was installed as the boss of a government committee to oversee euthanasia even though he was the leading euthanasia supporter in Belgium. Otherwise than this, I did not give this documentary a second thought.

2. In October 2016, I travelled to the United States of America, including Portland Oregon. In Portland, I did the annual marathon.

3. In late 2016, early 2017, I saw a re-run of Mr Andrew Denton’s speech to the National Press Club. He monumentally sledged Christian and faith based reasons to oppose euthanasia. He said that we should stand aside. Since then, I have researched and the more I have learned, the more I have been concerned.

Ministerial Advisory Panel Submissions

4. In March 2017, I prepared and submitted written submissions to the Ministerial Advisory Panel. Those earlier submissions were:

(a) Written in a much more summary form;

(b) Written in great haste and was not as well proof read (I never call myself perfect);

(d) Did not include as many facts and figures as do these submissions;

(e) Did not include expert evidence; and

(f) Did not include arguments against DyingForChoice.com which are in these submissions.

Victorian Ombudsman

5. On 9 April 2017, I finalized a written complaint to the Victorian Ombudsman, Mrs Deborah Glass OBE who declined jurisdiction, maybe correctly as it turns out. Below is a copy of my email to the Ombudsman dated 9 April 2017 – sent the same day of the Canberra marathon which I did not complete as I came home early to finish the complaint.

------Forwarded message ------From: David Foletta Date: 9 April 2017 at 23:55 Subject: David Foletta: Complaint: regarding Inquiry into end of life choices To: [email protected] Cc: [email protected], edward.o'[email protected], [email protected], [email protected], [email protected], [email protected],

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 317

[email protected], [email protected], [email protected], [email protected]

Dear Ombudsman Glass OBE

My name is David Foletta.

I attach the following documents for your urgent review and action: 1. My Complaint dated 9 April 2017; and 2. My submissions to the Ministerial Advisory Panel dated 5 March 2017. This complaint is in relation to the Parliament of Victoria's Legislative Council, Legal and Social Issues Committee's Final Report into the Inquiry into end of life choices, their Summary Booklet and their Discussion Paper.

I also make a complaint regarding the conduct of the Health Minister the Honourable Jill Hennessy MP, and, by extension, the Premier of Victoria, the Honourable Mr Daniel Andrews if he acts the Final Report.

I have included the relevant subjects of my Complaint on this email.

I have included the necessary correction to a reference of a comment I previously attributed to the Premier which was actually made by the Health Minister.

Thank you for considering my Complaint.

Regards

David Foletta omitted BCME LLB GDLP JP 6. This is me running through the last corner to enter the last street and then run under the finishing arch crossing the finishing line in the 2016 Portland Oregon Marathon. Regrettably, in a brief lack of concentration when watching a commotion on the side of the road my right foot found a pothole at the 21st mile and forced me to walk 1 mile. Most of the last 5 miles were downhill so l lost a good chance to save and end up with a better time. Good excuse to go back and run it again.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 318

Chapter 8: The Foletta Recommendations Annexure 75.: My Recommendations to the Parliament of Victoria (and NSW and elsewhere) 1. In my respectful submission, you and all politicians State and Federal and all people throughout Australia must, after reading and considering these submission of mine must accept the following recommendations:

(a) That the Majority Report included in the Final Report should not be accepted by the Parliament of Victoria to the extent that the Majority Report relates to legalising any form of euthanasia;

(b) That the Summary Booklet should not be accepted by the Parliament of Victoria;

(d) That the MAP’s Interim Report should not be accepted by the Parliament of Victoria;

(e) That the MAP’s Final Report should not be accepted by the Parliament of Victoria;

(f) That no action should be taken on Recommendation 49 included in the Final Report;

(g) That a clear statement should be made by the Parliament of Victoria that there is no safe way to introduce or manage euthanasia in any form;

(i) That a clear statement should be made by the Parliament of Victoria that the “slippery slope” exists and that the assertion by the Majority that it does not exist was based on an inaccurate consideration of the available evidence by the Majority of the Committee:

(j) That the Peulich Report and the Mulino Report jointly should be accepted by the Parliament of Victoria;

(k) That the abundance of caution must be taken when attempting to safeguard human life from those people who for motivations that range from reasons which honest and compassion orientated to reasons that are merely devious and ideologically based, and the best and only way to so safeguard is to say NO to euthanasia in all of its forms;

(l) That additional resources need to be allocated to the prosecution of doctors who kill patients; and

(m) That additional resources need to be allocated to the palliative care as set out in the Majority Report in the Final Report;

(n) That greater controls need to be placed onto Parliamentary Committees to ensure that they look at all evidence, and make decisions based on evidence and that they are accountable to look at all evidence, thus that no error like ignoring Belgium is repeated; and

(p) That this report be tabled and accepted into the Parliament of Victoria’s record, as reason to oppose euthanasia in all of its form.

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 319

Letter/ report/ submissions prepared by David R. A. Foletta BCME LLB GDLP Sydney, Australia 8 October 2017

David R.A. Foletta BCME LLB GDLP JP Letter to Premier Daniel Andrews 320

CANADA

S U P REME C 0 U RT

No.: 35591

LEE CARTER, et al.

Appellants v.

THE ATTORNEY GENERAL OF CANADA and THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondents

THE ATTORNEY GENERAL OF ONTARIO AND THE ATTORNEY GENERAL OF QUEBEC

Interveners

AFFIDAVIT OF PROFESSOR ETIENNE MONTERO

I, the undersigned, Etienne Montero, University Professor, residing and domiciled at 115 Camille Lemmonier Street, 1050 Brussels, Belgium, do solemnly swear as follows:

1. I am a legal scholar and lecturer at the University of Namur (Belgium) and Dean of the Faculty of Law.

2. My services have been retained by the Attorney General of Canada, in this case, to provide my expert opinion regarding issues within my area of expertise, as described below.

3. I am the deponent of this affidavit.

4. The documents cited of which I am the author are based on my research or my personal experience and their content reflects my opinion as an expert in this area. 39 5. I have reviewed the content of the documents cited of which I am neither the author nor the co- author and consider that the documents' findings are authoritative in my area of expertise, reasonable and consistent with my experience in this area. CANADA 6. I am aware that my duty is to impartially assist the Court and have prepared this affidavit in S U P REME C 0 U RT accordance with this duty.

No.: 35591

LEE CARTER, et al.

Appellants v.

THE ATTORNEY GENERAL OF CANADA and THE ATTORNEY GENERAL OF BRITISH COLUMBIA

Respondents

THE ATTORNEY GENERAL OF ONTARIO AND THE ATTORNEY GENERAL OF QUEBEC

Interveners

AFFIDAVIT OF PROFESSOR ETIENNE MONTERO

I, the undersigned, Etienne Montero, University Professor, residing and domiciled at 115 Camille Lemmonier Street, 1050 Brussels, Belgium, do solemnly swear as follows:

1. I am a legal scholar and lecturer at the University of Namur (Belgium) and Dean of the Faculty of Law.

2. My services have been retained by the Attorney General of Canada, in this case, to provide my expert opinion regarding issues within my area of expertise, as described below.

3. I am the deponent of this affidavit.

4. The documents cited of which I am the author are based on my research or my personal experience and their content reflects my opinion as an expert in this area.

5. I have reviewed the content of the documents cited of which I am neither the author nor the co- author and consider that the documents' findings are authoritative in my area of expertise, reasonable and consistent with my experience in this area.

6. I am aware that my duty is to impartially assist the Court and have prepared this affidavit in accordance with this duty. 40 -2-

7. If I am called to give oral testimony, I will do so in accordance with the duty of impartiality.

I. QUALIFICATIONS AND AREA OF EXPERTISE

8. I attach to this affidavit an updated copy of my curriculum vitae (Exhibit 1).

9. I studied law at the Universite Saint-Louis (Brussels) and at the Universite catholique de Louvain (UCL). I hold a Doctorate in Law, obtained with the highest distinction, from the UCL.

10. My teachings and research focus primarily on issues of private law. I was a visiting professor at the Universitó catholique de Louvain (graduate level courses, from 1999 to 2002), at the Universite de Paris Est (graduate level courses, from 2002 to 2008) and at the Universite de Ouagadougou, Burkina Faso (doctorate level courses, from 2005 to 2008). I have led many research projects, primarily on behalf of the Belgian federal government, the Walloon Region (Belgium) and the European Commission.

11. I haven taken part in the drafting of various legislative and regulatory instruments and led numerous consultancies and expert missions for government, national and international organizations, and for private and public companies. I edit a collection of works by Editions De Boeck/Larcier and am a member of a number of editorial boards of law journals.

12. For some twenty years now, I have also been conducting research on the theory of law, bioethics and biolaw. From 1998 to 2008, I served as a representative of the Faculty of Law with the Centre Interfacultaire Droit, Ethique, Sciences de la sante (CIDES) of the University of Namur and facilitated, within that framework, a seminar on bioethics. I am the President of the European Institute of Bioethics (EIB, based in Brussels).

13. I have authored a new book entitled Rendez-vous avec la mort. Dix ans d'euthanasie legale en Belgique, ed Anthemis, 2013 (also published in Spanish: Cita con la muerte. Diez cribs de eutanasia legal en Belgica, ed. Rialp, Madrid, 2013). I co-edited and co-authored a book on euthanasia, published in English (Kugler Publications, 2004), in French (ed. Presses de la Renaissance, 2005) and in Italian (ed. Ares, 2005).

14. Author of some 35 scientific articles on issues of bioethics and biolaw, I have actively participated in numerous courses, conventions, symposia and conferences, at the invitation of various, Belgian and foreign universities and institutions. Moreover, I have long been involved in the public debate on these issues, particularly euthanasia, by regularly participating in debates in print and broadcast media, in Belgium and other countries. Over the past few years, I have been consulted and questioned as an expert on end-of-life issues in various legislative 40 (information missions on the end of life in France and in Australia; written opinion to the -2- Belgian Senate) and judicial contexts (affidavit for the Superior Court of Quebec, in Leblanc, S.C. 400-17-002642-110).

7. If I am called to give oral testimony, I will do so in accordance with the duty of impartiality. 15. For this affidavit, I offer my opinion as an expert in the area of bioethics and biolaw, particularly on euthanasia in Belgium. I. QUALIFICATIONS AND AREA OF EXPERTISE

8. I attach to this affidavit an updated copy of my curriculum vitae (Exhibit 1).

9. I studied law at the Universite Saint-Louis (Brussels) and at the Universite catholique de Louvain (UCL). I hold a Doctorate in Law, obtained with the highest distinction, from the UCL.

14. Author of some 35 scientific articles on issues of bioethics and biolaw, I have actively participated in numerous courses, conventions, symposia and conferences, at the invitation of various, Belgian and foreign universities and institutions. Moreover, I have long been involved in the public debate on these issues, particularly euthanasia, by regularly participating in debates in print and broadcast media, in Belgium and other countries. Over the past few years, I have been consulted and questioned as an expert on end-of-life issues in various legislative (information missions on the end of life in France and in Australia; written opinion to the Belgian Senate) and judicial contexts (affidavit for the Superior Court of Quebec, in Leblanc, S.C. 400-17-002642-110).

15. For this affidavit, I offer my opinion as an expert in the area of bioethics and biolaw, particularly on euthanasia in Belgium. Li. I

II. THE MANDATE ASSIGNED TO ME

16. The mandate assigned to me by the Attorney General of Canada is as follows: report the findings of my research and express my opinion on the recent experience in Belgium in matters of euthanasia and, in particular, on the application of Belgian legislation regarding euthanasia by the medical profession; the effectiveness of existing limits and controls; the slippery slope phenomenon in Belgium; and the impact of legalization on vulnerable groups.

III. METHODOLOGY

17. In order for me to speak objectively, cautiously and with appropriate nuances on the practice of euthanasia and medically assisted suicide in Belgium, I have chosen to rely heavily on the official reports of the Commission federale de contrOle et d'evaluation de l'application de la loi ("Commission de contrOle" or "Commission"). The data, findings and considerations contained in these reports are assessed and put into perspective not only in light of the extensive preparatory parliamentary work for the Loi sur 1 'euthanasie [Act on euthanasia], which make it possible to discern the intention of Parliament, but also in comparison with other relevant information (scientific publications, investigations, news articles) not included in the registration documents submitted to the Commission de contrOle. Recent studies (2012- 2014) were particularly considered.

18. It cannot be forgotten that the control exercised by the Commission is necessarily limited as it deals only with registration documents completed and disclosed by physicians who themselves practised euthanasia. Hence, the usefulness of reporting and analyzing certain recent cases widely covered by the media. A number of protagonists in the cases reported confided in the media, television or written press, prior to being euthanized, thus providing first-hand information or allowing ex propriis sensibus [first-hand] findings. These cases, and the comments made by the members of the Commission de contrille about them, are very insightful in that they illustrate the interpretation given to certain legal conditions in the Commission's reports. In order to provide an overview of the movement that has been emerging in Belgium since the inception of the Act on euthanasia, the numerous new legislative initiatives aimed at relaxing or broadening said Act and currently before Parliament will also be discussed.

19. Many reported cases, studies and documents tend to support my analysis and to show, on the one hand, that the provisions of the Act on euthanasia, as seemingly strict as they are, cannot be strictly enforced and controlled, and on the other hand, that legislative openness to euthanasia inevitably leads to certain abuses and excesses, to a violation of the letter and spirit of the law, and to a broadening of the scope of the Act beyond the borders initially and firmly Li. I established. In order to illustrate this slippery slope effect, reference is made in the footnotes to each of the relevant studies, reports and documents.

II. THE MANDATE ASSIGNED TO ME

III. METHODOLOGY

19. Many reported cases, studies and documents tend to support my analysis and to show, on the one hand, that the provisions of the Act on euthanasia, as seemingly strict as they are, cannot be strictly enforced and controlled, and on the other hand, that legislative openness to euthanasia inevitably leads to certain abuses and excesses, to a violation of the letter and spirit of the law, and to a broadening of the scope of the Act beyond the borders initially and firmly established. In order to illustrate this slippery slope effect, reference is made in the footnotes to each of the relevant studies, reports and documents. 42

IV. ANALYSIS

A. BELGIUM'S ACT ON EUTHANASIA

a) Introduction

20. First, it is useful to create a backdrop. In 2002, Belgium successively adopted three laws involving patients: (1) la loi du 28 mai 2002 relative a l'euthanasie 1 ("Act on euthanasia"); (2) la loi du 14 juin 2002 relative aux soins palliatifs ; (3) la loi du 22 aofit 2002 relative aux droits du patient.2 I will focus in particular on the first one.

21. The Act on euthanasia defines euthanasia as [TRANSLATION] "intentionally terminating life by someone other than the person concerned, at the latter's request" (section 2). Under section 3, § 1, this third party must be a physician. Medically assisted suicide is not defined in the Act on euthanasia since the legislator clearly wanted to exclude it from the scope of application (see infra, paras. 64 to 67). It is commonly understood to be the act by which a person ends his or her own life with the help of a physician. In other words, the physician provides the patient with a lethal product, which the patient administers him or herself.

22. It is relevant to note that in the beginning, the conditions of the Act were extremely strict. This has been stated again and again. If this were not the case, the bill would certainly not have won a Parliamentary majority in 2002. The legislator's intention was for patients with psychiatric problems, dementia or depression to be excluded (infra, para. 60), for medically assisted suicide to be outside the scope of the Act (para. 64), for the bill to provide neither the right to euthanasia nor the obligation to perform it (para. 91) and for hospital institutions to have the right to refuse to assist in the practice of euthanasia (para. 92). However, legal boundaries are almost impossible to control, or are interpreted with surprising flexibility.

b) Overview of the conditions of the Act on euthanasia

23. In theory, euthanasia cannot be performed on a person unless that person requests it (section 2). The Belgian law recognizes two situations: euthanasia on a conscious person (section 3) and euthanasia on an unconscious person who previously expressed in a written document the desire to be euthanized in specific circumstances (section 4).

24. According to the wording of the Act of May 28, 2002, a physician does not commit an offence when he or she performs euthanasia on a person who is of age or is an emancipated minor capable and conscious at the time of his or her request. This request must be voluntary, well- considered and repeated; it cannot result from external pressure and must be made in writing. The patient must also be in a medically futile condition and constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder 42 caused by illness or accident. The physician must also respect many other conditions and procedures: inform the patient about his or her health condition and life expectancy, possible therapeutic and palliative courses of action; have discussions with the patient spread out over a IV. ANALYSIS I Moniteur Beige (22 June 2002) p. 28.515. The Justel database that contains consolidated legislation and a legislative A. BELGIUM'S ACT ON EUTHANASIA index is accessible at http:'/www.ejustice.just.faov.be/loiloi.htm 2 Moniteur Beige (26 September 2002) p. 43.719. a) Introduction

b) Overview of the conditions of the Act on euthanasia

24. According to the wording of the Act of May 28, 2002, a physician does not commit an offence when he or she performs euthanasia on a person who is of age or is an emancipated minor capable and conscious at the time of his or her request. This request must be voluntary, well- considered and repeated; it cannot result from external pressure and must be made in writing. The patient must also be in a medically futile condition and constant and unbearable physical or mental suffering that cannot be alleviated, resulting from a serious and incurable disorder caused by illness or accident. The physician must also respect many other conditions and procedures: inform the patient about his or her health condition and life expectancy, possible therapeutic and palliative courses of action; have discussions with the patient spread out over a

I Moniteur Beige (22 June 2002) p. 28.515. The Justel database that contains consolidated legislation and a legislative index is accessible at http:'/www.ejustice.just.faov.be/loiloi.htm 2 Moniteur Beige (26 September 2002) p. 43.719. 43

-5-

reasonable period of time, to be certain of the patient's persistent suffering and durable nature of the request; consult another independent physician competent to give an opinion about the disorder in question, and who reports on his or her findings; discuss the patient's request with one or more members of the medical care team and, if the patient so desires, with his or her relatives.

25. Euthanasia is not reserved for terminally ill patients. It is also possible if the physician feels that death is not expected in the near future, in which case two additional conditions apply: (1) the physician must consult with a second independent physician, psychiatrist or specialist in the disorder in question; (2) there must be at least one month for reflection between the patient's written request and the act of euthanasia.

26. Lastly, any capable person of age or emancipated minor may, for cases in which he or she can no longer express his or her wishes, draw up a written statement of his or her will for a physician to perform euthanasia if the physician ensures that (1) the patient suffers from a serious and incurable disorder caused by illness or accident and (2) the patient is in a state of irreversible unconsciousness.

c) Control mechanism

27. Belgium's Parliament opted for a posteriori control of the practice of euthanasia (sections 6 to 13 of the Act). To this end, it established the Commission fdderale de contreile et d'evaluation, composed of 16 members: eight physicians, four jurists and four members from groups that deal with the issue of incurably ill patients. They are appointed by royal decree by the Council of Ministers from a double list of candidates prepared by the Senate, for a renewable four-year term; this is done while respecting the usual language (French/Dutch), philosophical pluralism and gender parities.

28. The physician who perfoiins euthanasia is required to report it to the Commission de contreile by providing it with the duly completed registration form within four business days. This document, established by the Commission, has two parts: (a) the first part is sealed by the physician and contains personal information about the patient, the physician and, when relevant, the support person(s); (b) the second part is not anonymous and contains data regarding the act of euthanasia (the illness, nature of the suffering, procedure followed, qualification of the physician(s) consulted, manner in which the euthanasia was performed, means used, etc.).

The Commission, based solely on the second part of the registration form, is responsible for determining whether the euthanasia was performed in accordance with the basic conditions and the procedures set out in the Act. In case of doubt, it may decide by simple majority to 43 revoke anonymity and examine the first part of the registration document. It may ask the attending physician additional questions or request the entire medical record. The Commission -5- makes a decision within two months. The case is only sent to the public prosecutor if, in a two- thirds majority decision, the Commission determines that the legal conditions were not reasonable period of time, to be certain of the patient's persistent suffering and durable nature fulfilled. of the request; consult another independent physician competent to give an opinion about the disorder in question, and who reports on his or her findings; discuss the patient's request with one or more members of the medical care team and, if the patient so desires, with his or her relatives.

c) Control mechanism

B. ANALYSIS OF RECENT CONTROVERSIAL CASES

29. It is arguable whether it is actually possible to create guidelines for euthanasia and to control the practice using criteria set by legislators. What about the risk that the statutory conditions would be loosely interpreted, modified or ignored? Valuable lessons can be learned from the numerous recent, controversial, high-profile cases illustrating and confirming how interpretation of the Act on euthanasia is progressing in Belgium.

a) Recent cases

30. The succinct presentation of recent cases (a) will serve to illustrate and strengthen my analysis (b), which consists of two components: showing the diversity of cases that are officially eligible under the Act on euthanasia because of a loose interpretation of the statutory conditions, and questioning the relevance of the a posteriori control system.

31. It should be remembered that decyphering and putting into perspective the recent cases that have been identified is based on explanations provided in reports by the Commission de contretle; direct, highly publicized accounts by certain protagonists right before they were euthanized; and comments on these cases by eminent members of the Commission de contrOle. The reconciliation of these sources sheds valuable light on how the Commission assesses some of the statutory conditions for euthanasia.

Incarcerated individuals

32. In mid-September 2012, a 48-year-old psychiatric inmate was euthanized in a prison. This was unprecedented. This action in a prison environment, which was confirmed by the penitentiary administration, was deemed to be in compliance with Belgian legislation on euthanasia. The notion of psychological pain appears to be a delicate one here. [TRANSLATION] "Even if the request for euthanasia meets all the statutory conditions, the burning question in this social debate is whether the inmate would have made this decision under the appropriate psychiatric treatment," noted Dr Marc Moens, President of the Association Belge des Syndicats Medicaux (ABSyM). 3 In response to a parliamentary question on January 17, 2013, 4 the Minister of Justice replied that five other long-term inmates have also requested euthanasia.

33. Knowing the pitiful state of our prisons, the phenomenon of prison overcrowding and the insufficient financial means to monitor psychiatric inmates, assessing psychological pain seems to be a singularly sensitive issue. In these conditions, we can also wonder about the free and voluntary nature of the request for euthanasia. The moment euthanasia is allowed in the case of purely psychological pain, we could consider long-term incarceration to constitute 44 sufficient pain to justify euthanasia. -6-

3 Dr Marc Moens, president of the ABSyM, press release — [TRANSLATION] Psychiatric inmates have the right to medical B. ANALYSIS OF RECENT CONTROVERSIAL CASES care (13 September 2012). 4 Oral question of Senator L. Ide to the Minister of Justice regarding [TRANSLATION] "euthanasia requests from inmates" 29. It is arguable whether it is actually possible to create guidelines for euthanasia and to control (No. 5-791), Annales, Sdnat (17 January 2013). the practice using criteria set by legislators. What about the risk that the statutory conditions would be loosely interpreted, modified or ignored? Valuable lessons can be learned from the numerous recent, controversial, high-profile cases illustrating and confirming how interpretation of the Act on euthanasia is progressing in Belgium.

a) Recent cases

Incarcerated individuals

3 Dr Marc Moens, president of the ABSyM, press release — [TRANSLATION] Psychiatric inmates have the right to medical care (13 September 2012). 4 Oral question of Senator L. Ide to the Minister of Justice regarding [TRANSLATION] "euthanasia requests from inmates" (No. 5-791), Annales, Sdnat (17 January 2013). 45 -7-

ii. Transgender

34. After a botched sex change operation, Nathan Verhelst (born Nancy) was euthanized at 44 years of age on October 1, 2013, under the supervision of Professor Dr Wim Distelmans of the VUB [Free University of Brussels]. He stated that all the conditions of the legislation had been met: [TRANSLATION] "This was clearly a case of unbearable psychological pain." 5 However, we may well wonder what incurable disease he had.

iii. Individuals anticipating future pain

35. Ever since the case of Hugo Claus, a renowned Flemmish author who chose to be euthanized at 78 years of age at the appearance of the first symptoms of Alzheimer's disease (March 2008),6 we often hear about euthanasia practised out of fear of future pain. Professor Dr Wim Distelmans, President of the Commission de contrOle, recently noted: [TRANSLATION] "Like Hugo Claus, dozens of people are euthanized here in the early stages of dementia, as a preventive measure."'

36. Christian de Duve, Nobel Prize in Medicine in 1974, was euthanized on May 4, 2013, at the age of 96, having previously expressed the desire that an interview by a reporter and his decision to die by euthanasia be publicized after his death. He knew he had cancer. He wanted to remain independent and master of himself until the end. Another determining element in his decision was the fact that [TRANSLATION] "my life is full and I do not want to burden my family."8 The press widely covered his euthanasia, and a filmed interview with him was posted on the Web.

37. Erniel Pauwels, a 95-year-old athlete, was euthanized on January 7, 2014, after uncorking some champagne, surrounded by many family members and friends. The press, which was also invited to the party, widely reported on the event. The athlete had been diagnosed with cancer of the stomach and intestines a few weeks earlier. In March 2013, he had won the title of European Champion in the 60 metre sprint at the Veteran Games organized in San Sebastien (Spain). Given his excellent physical condition, radiation therapy was being considered and had been suggested to him. He refused: [TRANSLATION] "I opted for euthanasia because I did not want to suffer." It is future pain that is being referred to and, in fact, the man did not seem to be in [TRANSLATION] "constant unbearable physical or mental suffering that cannot be alleviated," according to the precise terms of the legislation.

45 5 Cf. La Libre Belgique (October 1, 2013). 6 Cf, for example, "L'ecrivain beige Hugo Claus a choisi I'euthanasie", AFP (19 March 2008); "En Belgique, le depart -7- choisi d'Hugo Claus", Liberation (21 March 2008). See also the opinions and analyses published in De Standaard, 22-23- March 24, 2008, pp. 22-23; "Euthanasie kent Claus-effect", De Standaard (21 May 2008). The case was reported to the Commission de contrOle, who deemed it acceptable with respect to the conditions of the Act. The file was not referred to ii. Transgender the Public prosecutor. 7 Prof. Dr W. Distelmans, Chairperson of the Commission de contrOle, De Standaard Magazine (21 December 2013) 34. After a botched sex change operation, Nathan Verhelst (born Nancy) was euthanized at 44 p. 60. He cited about 50 cases of [TRANSLATION] "preventive" euthanasia last year. years of age on October 1, 2013, under the supervision of Professor Dr Wim Distelmans of 8 La Libre Belgique (5 May 2013). the VUB [Free University of Brussels]. He stated that all the conditions of the legislation had been met: [TRANSLATION] "This was clearly a case of unbearable psychological pain." 5 However, we may well wonder what incurable disease he had.

iii. Individuals anticipating future pain

5 Cf. La Libre Belgique (October 1, 2013). 6 Cf, for example, "L'ecrivain beige Hugo Claus a choisi I'euthanasie", AFP (19 March 2008); "En Belgique, le depart choisi d'Hugo Claus", Liberation (21 March 2008). See also the opinions and analyses published in De Standaard, 22-23- March 24, 2008, pp. 22-23; "Euthanasie kent Claus-effect", De Standaard (21 May 2008). The case was reported to the Commission de contrOle, who deemed it acceptable with respect to the conditions of the Act. The file was not referred to the Public prosecutor. 7 Prof. Dr W. Distelmans, Chairperson of the Commission de contrOle, De Standaard Magazine (21 December 2013) p. 60. He cited about 50 cases of [TRANSLATION] "preventive" euthanasia last year. 8 La Libre Belgique (5 May 2013).

46 -8-

38. Twins Eddy and Marc Verbessem, born deaf, were euthanized together, at their request, on December 14, 2012. 9 They were 45 years old. Their request for euthanasia was based on a diagnosis of glaucoma, which, it seems, was gradually making them blind.

39. The psychological pain referred to is the result, here too, of the anticipated future pain associated with blindness and loss of autonomy. This euthanasia case was approved by the Commission de contrOle. This is nevertheless troubling: everything happens as though, imperceptibly, euthanasia were becoming the most humanly dignified response to pain. As the threshold for tolerating disease and pain diminishes, euthanasia seems to be becoming more commonplace. Although the choice of the twin brothers is understandable and deserves respect, we may wonder whether society has provided them with enough support to build a quality of life despite their disabilities. 10 Their situation challenges medicine and society to imagine ways to support people in pain on the path of life and not only on the path to death.

iv. Psychiatric patients

40. There is often confusion between psychological pain and psychiatric disease. Apart from the cases previously mentioned of the 48-year-old psychiatric inmate and the 44-year-old transgender person, high-profile cases pose problems.

41. In late 2012, Ann G. was euthanized as she had requested. The doctors who administered the lethal substance estimated that her request was in compliance with the Belgian legislation in that Ann G. was suffering from a psychiatric disability that caused her unbearable pain. A few months earlier, Ann appeared on television accusing her psychiatrist of having unwanted relations with her. In 2007, having already suffered from anorexia for 25 years, the patient got in touch with a writer, Kristien Hemmerechts, because she wanted her story to be told in a book. She also announced that she wanted to commit suicide as soon as the book was published."

v. Persons suffering from multiple disorders

42. The case of Jeanne is emblematic. She was 88 years old, was completely sane and wanted to die. She did not have any serious incurable diseases. She was euthanized. Officially, the conditions of the legislation had been met: she had "multiple disorders," none of which was serious in itself, but taken together, caused her unbearable pain. For her son, as well as for Jeanne's former attending physician, it was obvious that she did not have a serious incurable disease, as required under the Act on euthanasia. 12

46 9 De Standaard (14 January 2013) pp. 2, 6 and 23; De Standaard (15 January 2013) p. 10; Artsenkrant, No. 2291 -8- (18 January 2013) p. 4. 1° Cf. The unconditional cooperation between the directors of "Spermalie" in Bruges and "La Bastide" in Namur, two institutes specialized in supporting deaf and blind people, L'Avenir (18 January 2013). 38. Twins Eddy and Marc Verbessem, born deaf, were euthanized together, at their request, on 11 Cf. "Euthanasie na strijd van 25 jaar tegen anorexia", Nieuwsblad (28 January 2013). December 14, 2012. 9 They were 45 years old. Their request for euthanasia was based on a 12 Cf., for example, P. Gruber, "Jeanne avait decide de mourir", Le Vif/L'Express (Belgium) (21 January 2008) pp. 36-40; diagnosis of glaucoma, which, it seems, was gradually making them blind. F. Delpierre, "Jeanne — 'Ma mere ne répondait pas aux criteres pour etre euthanaside'", Le Soir (15 January 2011) p. 12; E. Saget, "L'euthanasie, ma mere et moi", L'Express (France) (24 April 2008). 39. The psychological pain referred to is the result, here too, of the anticipated future pain associated with blindness and loss of autonomy. This euthanasia case was approved by the Commission de contrOle. This is nevertheless troubling: everything happens as though, imperceptibly, euthanasia were becoming the most humanly dignified response to pain. As the threshold for tolerating disease and pain diminishes, euthanasia seems to be becoming more commonplace. Although the choice of the twin brothers is understandable and deserves respect, we may wonder whether society has provided them with enough support to build a quality of life despite their disabilities. 10 Their situation challenges medicine and society to imagine ways to support people in pain on the path of life and not only on the path to death.

iv. Psychiatric patients

v. Persons suffering from multiple disorders

9 De Standaard (14 January 2013) pp. 2, 6 and 23; De Standaard (15 January 2013) p. 10; Artsenkrant, No. 2291 (18 January 2013) p. 4. 1° Cf. The unconditional cooperation between the directors of "Spermalie" in Bruges and "La Bastide" in Namur, two institutes specialized in supporting deaf and blind people, L'Avenir (18 January 2013). 11 Cf. "Euthanasie na strijd van 25 jaar tegen anorexia", Nieuwsblad (28 January 2013). 12 Cf., for example, P. Gruber, "Jeanne avait decide de mourir", Le Vif/L'Express (Belgium) (21 January 2008) pp. 36-40; F. Delpierre, "Jeanne — 'Ma mere ne répondait pas aux criteres pour etre euthanaside'", Le Soir (15 January 2011) p. 12; E. Saget, "L'euthanasie, ma mere et moi", L'Express (France) (24 April 2008). 47 -9-

43. The case of Amelie Van Esbeen also made headlines. 13 Unless old age is considered an incurable disease, there is no reason to believe that this 93-year-old woman met the statutory conditions for euthanasia. 14 Her death was, however, caused by a physician other than her attending physician, who had refused to grant her request for euthanasia. Officially, here too, all the statutory conditions had been met.

b) Decyphering these recent cases

Expanding the indications for euthanasia

44. All good legal experts know the value of precedent, and that exception is destined to expand (even though, as a rule, it must be strictly interpreted). We also know that in law, as soon we decide to open a door, no matter how small the opening, we accept the risk that the door will be opened ever wider. We cannot then assess the advisability of opening a door without considering the question of knowing whether we also accept all the consequences brought about by this initial decision.

45. Once euthanasia is allowed, it becomes very difficult to maintain a strict interpretation of the statutory conditions. The limits quickly fall away, one after the other, and the interpretation continues to expand. This is an inevitable progression, not only because of the basis of the legislation (patient autonomy) and the obvious psychological reasons, but also because of the inherent dynamic of law.

Difficult conditions to control

46. The control system is used a posteriori, based on a completed document sent by the physician. One therefore wonders how the Commission de contrOle can be sure that the patient has given his or her completely voluntary and informed consent without any outside pressure.

47. Many people who are in pain express two opposite wishes: to live and to die; how can. we be sure that they did not only receive support for their wish to die? [TRANSLATION] "It is naïve to assume that the viewpoints expressed by the physician in his meetings with the patient would have no influence on the latter. Personal viewpoints may be implicit in the questions that are not asked and should have been, or in the challenge that was not proposed and should have been." 15 It does not seem to me that the physician who agrees to a request to perform euthanasia, the second physician consulted and especially the members of the Commission de contrOle can really measure the sometimes unconscious constraints and pressures that most patients face. I also doubt that the Commission de contrOle can really verify that the information on the prognosis and possible treatments is accurate, sufficiently nuanced and provided in a climate of empathy. 47 -9- 13 For example, M. Lamensch, "Amelie Van Esbeen" Le Soir (24 March 2009) p. 19; M. Lamensch and F. Soumois, "La vieille dame de 93 ans a obtenu l'euthanasie", Le Soir (2 April 2009) p. 8 and the editorial "Les lecons d'un cas tres mediatisd", p. 22. 43. The case of Amelie Van Esbeen also made headlines. 13 Unless old age is considered an 14 F. Keuleneer, substitute member of the Commission de contrOle, "Puntjes op de in het euthanasiedebat. Euthanasie incurable disease, there is no reason to believe that this 93-year-old woman met the statutory veeler inperken dan uitbreiden", Tertio, No. 477, 2009, p. 10; A. Hovine "Le douloureux destin d'Amelie Van Esbeen" La conditions for euthanasia. 14 Her death was, however, caused by a physician other than her Libre Belgique (2 April 2009). attending physician, who had refused to grant her request for euthanasia. Officially, here too, 15 P. Wesley, "Dying Safely", Issues in Law and Medicine (1993) 8: 467-485, spec. 480. all the statutory conditions had been met.

b) Decyphering these recent cases

Expanding the indications for euthanasia

Difficult conditions to control

13 For example, M. Lamensch, "Amelie Van Esbeen" Le Soir (24 March 2009) p. 19; M. Lamensch and F. Soumois, "La vieille dame de 93 ans a obtenu l'euthanasie", Le Soir (2 April 2009) p. 8 and the editorial "Les lecons d'un cas tres mediatisd", p. 22. 14 F. Keuleneer, substitute member of the Commission de contrOle, "Puntjes op de in het euthanasiedebat. Euthanasie veeler inperken dan uitbreiden", Tertio, No. 477, 2009, p. 10; A. Hovine "Le douloureux destin d'Amelie Van Esbeen" La Libre Belgique (2 April 2009). 15 P. Wesley, "Dying Safely", Issues in Law and Medicine (1993) 8: 467-485, spec. 480. 48

- 10 -

48. The legislation carefully provided for the obligation to consult a second physician. Not all physicians are convinced about the helpfulness of a second opinion; 16 it is not always solicited, and euthanasia sometimes takes place despite a negative opinion. A study showed that in 35% of cases, the opinion of a second independent physician was not solicited and in 23% of cases, euthanasia was performed despite the divergence of opinion. 17 Furthermore, there is a risk that this mandatory consultation becomes a kind of routine carried out as a matter of form with physicians that are particularly in favour of euthanasia. In fact, the reports of the Commission de contrOle show that physicians trained in palliative care are rarely consulted, but that most often, EOL or LEIF general practitioners are and [TRANSLATION] "they are expected to consider euthanasia as an ethical and perfectly valid end-of-life option."18

49. In accordance with the wishes of the parliamentary majority, requests for euthanasia are basically handled through the doctor-patient relationship. Of course the physician has to consult one or more freely selected members of the care team, but a systematic interdisciplinary dialogue is not mandatory. In these conditions, it is hard to see how the Commission de contrOle can be sure that the exchange occurred in an adequate climate of listening and dialogue. The physician may also learn through the doctor-patient bond that the patient does not want his or her family to be consulted or even informed about the request for euthanasia. In Belgium, people are lawfully euthanized without their family having been contacted. Thus T. Mortier, among others, learned after the fact that his mother had been euthanized in April 2012. She suffered from chronic depression. The physician who administered the lethal injection assured T. Mortier after the fact that he was "absolutely certain" that his mother no longer wanted to live. 19 A complaint was filed with the Ordre des medecins.2°

50. In any case, we may well question the means the Commission actually has to verify that most of the "strict conditions" for euthanasia have been met.

The need for a serious incurable disorder

51. To have access to euthanasia, the patient has to claim a serious and incurable disorder caused by illness or accident. Such a condition seems objective and verifiable, but we must not be deluded. The notion of "incurable disease" is imprecise: given the constant advances in medicine, a disease that is deemed incurable today may be curable tomorrow. It is worth looking at the sheer size of the list of incurable diseases: diabetes, rheumatism, arthrosis, cardiac decompensation, emphysema, chronic bronchitis, chronic renal failure, hepatitis and so

16 Cf. J. Cohen, Y. Van Wesemael, T. Smets, J. Bilsen, L. Deliens, "Cultural differences affecting euthanasia practice in Belgium. One law but different attitudes and practices in Flanders and Wallonia" Social Science & Medicine (2012), vol. 75, 5: 845-853 (55% of physicians in Wallonia and 71% in Flanders believe it is useful to consult a second physician). 48 17 R. Cohen-Almagor, "First do no harm: pressing concerns regarding euthanasia in Belgium", International Journal of Law and Psychiatry 36 (2013): 515-521. - 10 - 18 "Mddecins EOL — Le forum EOL. Origin et objectifs", www.admd.be medecins.html, p. 1. Cf. Commission de contrOle, Fifth report (2012) p. 8. 19 Cf. the story of T. Mortier (with Dr S. Bieseman and Prof em. H. De Dijn), "Naar een gecontroleerde 48. The legislation carefully provided for the obligation to consult a second physician. Not all suIcidemaatschappij door euthanasie bij psychisch lijden?" ([TRANSLATION]: Towards a controlled suicidal society by physicians are convinced about the helpfulness of a second opinion; 16 it is not always solicited, euthanasia in cases of mental suffering?), Artsenkrant (medical journal), No. 2275 (6 November 2012) p. 31. and euthanasia sometimes takes place despite a negative opinion. A study showed that in 35% 2° Cf. Artsenkrant, No. 2351 (21 February 2014) p. 2. of cases, the opinion of a second independent physician was not solicited and in 23% of cases, euthanasia was performed despite the divergence of opinion. 17 Furthermore, there is a risk that this mandatory consultation becomes a kind of routine carried out as a matter of form with physicians that are particularly in favour of euthanasia. In fact, the reports of the Commission de contrOle show that physicians trained in palliative care are rarely consulted, but that most often, EOL or LEIF general practitioners are and [TRANSLATION] "they are expected to consider euthanasia as an ethical and perfectly valid end-of-life option."18

50. In any case, we may well question the means the Commission actually has to verify that most of the "strict conditions" for euthanasia have been met.

The need for a serious incurable disorder

on.21 This observation helps us put the legal requirement into perspective: officially, it will almost always be possible to state that it has been met.

52. But there is more. In the eyes of the Commission de contrOle, the seriousness of the patient's condition may be the result of "multiple disorders," none of which, taken individually, is serious and incurable. This expression was invented by the Commission: there is no trace of it in the thousands of pages of reports on the parliamentary discussions. The public was apprised of the notion of "multiple disorders" because of the extensive media coverage of the above- mentioned cases of Jeanne and of Amelie Van Esbeen (paras. 42 and 43).

53. Many members of the Commission de contrOle acknowledge that the absence of a serious incurable disease poses a problem. However, they explained that in elderly persons, the cumulative effect of a combination of ailments may cause unbearable pain and justify euthanasia.22

54. The Commission de contrOle thus approves more and more euthanasia cases at the request of people who, although they cannot show that they have a serious incurable disease, suffer from various ailments related to old age. The First Report to the Legislative Chambers identified three cases of "multiple disorders,"23 the Second Report indicated 27 cases 24 and the Third Report mentioned 18 cases. 25 The Fourth Report indicated 44 cases of "multiple disorders." 26 The reports include people suffering from various disorders due to old age (for example, people suffering from polyarthritis with reduced mobility, who do not see well and become deaf.)27

55. Lastly, in its Fifth Report, the Commission mentioned 57 cases of "multiple disorders."28 In the last two reports, some members of the Commission de contrOle felt that the pain and the requests for euthanasia were linked more to the natural consequences of the patients' old age than to the conditions they had. The issue was discussed at length by the Commission, but the majority won each time.29

21 See, for example, the appendix to the Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, hearing of Dr. W. Distelmans, Doc. parl., Seiat, sess. ord. 2000-2001, No. 2-244/24, p. 664. 22 J. Herremans, member of the Commission de contrOle and president of the ADMD (Belgium), Le Vil7L'Express (25 January 2008) p. 36; Dr M. Englert, member of the Commission de contrOle and of the ADMD, "L'euthanasie des patients agós", p. 12, 1,vww.admd.be/medecins.html. 2 3 Commission de contrOle, First report (2002-2003), 2004, p. 8. The reports are available on line: http:twww.health.belgium.be:eportal 'Healthcare/Consultativebodies/CommissionsiEuthanasia/Publicationsindex.htm. 24 Commission de contrOle, Second report (2004-2005), 2006, p. 16 (heading [TRANSLATION] "diagnoses") and p. 17 (heading [TRANSLATION] "death not expected in the near future"). 2 5 Commission de contrOle, Third report (2006-2007), 2008, p. 16 and p. 17 ([TRANSLATION] "death not expected in the 49 near future"). 26 Commission de contrOle, Fourth report (2008-2009), 2010, p. 16. 27 Cf. Dr M. Englert, member of the Commission de contrOle and de l'ADMD, "L'euthanasie des patients ages", p. 12, www.admd.be/medecins.ininl. on.21 This observation helps us put the legal requirement into perspective: officially, it will 28 Commission de contrOle, Fifth report (2010-2011), 2012, p. 8 and p. 9 ([TRANSLATION] "death not expected in the near almost always be possible to state that it has been met. future"). 29 Commission de contrOle, Fourth report (2008-2009), 2010, p. 22; Commission de contrOle, Fifth report (2010-2011), 52. But there is more. In the eyes of the Commission de contrOle, the seriousness of the patient's 2012, p. 14. condition may be the result of "multiple disorders," none of which, taken individually, is serious and incurable. This expression was invented by the Commission: there is no trace of it in the thousands of pages of reports on the parliamentary discussions. The public was apprised of the notion of "multiple disorders" because of the extensive media coverage of the above- mentioned cases of Jeanne and of Amelie Van Esbeen (paras. 42 and 43).

56. It is remarkable how the Commission agreed to collapse into a single condition two distinct conditions in the legislation: 1) the need to demonstrate a serious and incurable disorder; and 2) resulting in constant and unbearable physical or mental suffering that cannot be alleviated. This approach, combined with the absence of a definition of a [TRANSLATION] "serious and incurable pathological condition" and the fact that euthanasia is legally possible for patients who are not expected to die in the short term, seems tailor-made to allow euthanasia for patients who claim to be in unbearable pain because of their old age, social isolation or weariness of living. 3°

Requirement of physical or mental suffering

57. Among the conditions for euthanasia, Belgian law also requires the presence of constant and unbearable physical or mental suffering that cannot be alleviated. The tone was set as early as the First Report: the Commission felt from the beginning that the assessment of the unbearable nature of the suffering is largely [TRANSLATION] "subjective and depends on the patient's personality, ideas and values." 31 As for the unrelievable nature, the Commission states that it has to take into account the fact that [TRANSLATION] "the patient has the right to refuse treatment for pain, even in a palliative situation, for example, when the patient deems the side effects or administration methods of a treatment to be unbearable."32

58. In reality, the notion of a "palliative filter" is scorned by proponents of euthanasia. Physicians have to limit themselves to giving information on the opportunities provided by palliative care, which admittedly is not the same as experiencing the benefits of this type of care. How can we tell if the patient's pain "cannot be alleviated" if he or she refuses any type of palliative care? In practice, the Commission exercises very lax control over the unbearable and unrelievable nature of the pain, a criterion that is nevertheless central to the legislation.

59. The experts (including the key proponents of euthanasia in Belgium) generally acknowledge that most requests for euthanasia do not stem from physical pain, which can be controlled,33 but from mental suffering: loss of meaning, loss of independence, loss of dignity, solitude, weariness of living and a need for control over one's death. 34 Psychological pain is especially difficult to assess because the factors that trigger and fuel it are complex. Psychological

3° Very explicitly in this respect, see Prof. Dr W. Distelmans, Chairperson of the Commission de contrOle, "De euthanasiewet is geen dwangbuis", De Standaard (16 October 2003); multiple disorders refers to a group of conditions (failing vision and hearing, need for help to eat, bedridden most of the time, incontinent) which taken individually do not meet the criteria of serious and incurable disease, but considered as a whole cause unbearable suffering — what we like to call [TRANSLATION] "weariness of living". Italics mine. 31 First report to the legislative chambers (22 September 2002 —31 December 2003), 2004, p. 18. 50 Ibid. 33 Although it is true that the resources available in medicine today are increasingly effective in treating and managing -12- physical pain, the expertise of a certain number of physicians with respect to managing pain and symptoms is often lacking. Cf., for example, hearing of Dr. M. Desmedt, Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. part., Ch. repr., No. 50 1488/009, p. 135; Hearing of Dr. J. Menten, tumorous disease and radiotherapy service 56. It is remarkable how the Commission agreed to collapse into a single condition two distinct (Cliniques universitaire de Louvain), in the appendix to the Rapport fait au nom des Commissions reunies de la Justice et conditions in the legislation: 1) the need to demonstrate a serious and incurable disorder; and des Affaires sociales, sess. 2000-2001 (9 July 2001) Sénat, No. 2-244/24, p. 683. 2) resulting in constant and unbearable physical or mental suffering that cannot be alleviated. 34 See, for example, Prof. Dr W. Distelmans, Chairperson of the Commission de contrOle, "De euthanasiewet is geen This approach, combined with the absence of a definition of a [TRANSLATION] "serious and dwangbuis", De Standaard (16 October 2013); similarly, De Standaard Magazine (21 December 2013) p. 58. incurable pathological condition" and the fact that euthanasia is legally possible for patients who are not expected to die in the short term, seems tailor-made to allow euthanasia for patients who claim to be in unbearable pain because of their old age, social isolation or weariness of living. 3°

Requirement of physical or mental suffering

distress may stem from social isolation and fear of real or imaginary future pain. 35 Many converging studies have demonstrated that depression is common in the terminally ill, especially for those in the advanced stages of cancer, and that patients suffering from depression are 25 times more likely to commit suicide than the general population. 36 Very often, depression is not treated properly or even diagnosed. 37

60. When the Belgian Act on euthanasia was being developed, it was stated repeatedly that patients with psychiatric disorders, dementia or depression were excluded from the Act. 38 Naturally, neuropsychiatric conditions raise the serious issue of the validity of a patient's request, as it is difficult to confirm the voluntary, rational and lucid nature of the request. However, the Commission de contrale approves a growing number of euthanasia cases for patients with psychiatric disorders, dementia or depression. The euthanasia of an inmate (cited supra, No. 32), transgendered person, Nathan (No. 34), and Ann G. (No.41) are classic examples.

61. In its Second Report, the Commission approved nine euthanasia cases for patients with neuropsychiatric conditions (one case of Creutzfeldt-Jacob disease, three cases of Alzheimer's disease, one case of Huntington's disease and four cases of unyielding depression). 39 A Flemish association that actively supports people suffering from depression (Netwerk Depressie Vlaanderen) was upset by this, stating that it sets a dangerous precedent: [TRANSLATION] "The door to euthanasia is open for thousands of depressed and suicidal people to kill themselves legally. ° In its Third Report, the Commission approved another nine euthanasia cases for patients with neuropsychiatric conditions (dementia or depression),4I in addition to four reported euthanasia cases for people with neuropsychiatric conditions for whom death was not expected in the short term. 42 The Fourth Report includes 62 reported euthanasia cases for people with neuropsychiatric conditions.43 Finally, in its Fifth Report, the Commission de contrOle approved 105 euthanasia cases for neuropsychiatric conditions

35 Cf. for examples and references, cf. hearing of Dr M. Desmedt, Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. part., Ch. repr., No. 50 1488/009, p. 137. 6 W. Breitbart, B. Rosenfeld, H. Pessin, M. Kaim, J. Funesti-Esch, M. Galietta, et al., "Depression, hopelessness, and desire for hastened death in terminally ill patients with cancer", Journal of the American Medical Association (2000), 284 (22): 2907-2911; B. Rosenfeld, W. Breitbart, S. Krivo, H.M. Chochinov, "Suicide, assisted suicide, and euthanasia in the terminally ill", in H.M. Chochinov & W. Breitbart (eds), Handbook of psychiatry in palliative medicine (New York: Oxford University Press, 2000) 51-62; H.M. Chochinov, K.G. Wilson, M. Enns, N. Mowchun, S. Lander, M. Levitt and J.J. Clinch, "Desire for Death in the Terminally Ill", American Journal of Psychiatry (1995), 152: 1185-1191. 37 H. Pessin, B. Rosenfeld, W. Breitbart, "Assessing Psychological Distress Near the End of Life", American Behavioral Scientist (2002), 46 (3): 257-372, spec. 358 ; S.D. Passik, W. Dugan, M.V. McDonald, B. Rosenfeld, D.E. Theobald, S. Edgerton, "Oncologists'recognition of depression in their patients with cancer", Journal of Clinical Oncology (1998), 16: 1594-1600; H.M. Chochinov, K.G. Wilson, M. Enns, S. Lander, 'Are you depressed?' Screening for depression in the terminally ill", American Journal of Psychiatry (1997), 154: 674-676; R. Fresco, neuropsychiatrist, "Menace suicidaire et demande d'euthanasie : des equivalents depressifs ?", in M. Abiven, C. Charcot and R. Fresco, Euthanasie — Alternatives et controverses (Paris: Presses de la Renaissance, 2000) pp. 212 et s., and the studies cited. 51 38 Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. part., Ch. Repr., No. 50 1488/009, p. 52, p. 56, p. 217, p. 243, p. 244, p. 245, etc. -13- 9 Second report to the legislative chambers (2004 and 2005), 2006, p. 22. 49 Statement made in the article "Quatre cas pour depression majeure irreductible", La Libre Belgique (2 February 2007). distress may stem from social isolation and fear of real or imaginary future pain. 35 Many 41 Third report to the legislative chambers (2006 and 2007), 2008, pp. 16 and 22. converging studies have demonstrated that depression is common in the terminally ill, 42 Ibid., p. 17. especially for those in the advanced stages of cancer, and that patients suffering from 43 Fourth report to the legislative chambers (2008 and 2009), 2010, pp. 16 and 17 (in 28 cases, death was not expected in depression are 25 times more likely to commit suicide than the general population. 36 Very the short term). often, depression is not treated properly or even diagnosed. 37

35 Cf. for examples and references, cf. hearing of Dr M. Desmedt, Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. part., Ch. repr., No. 50 1488/009, p. 137. 6 W. Breitbart, B. Rosenfeld, H. Pessin, M. Kaim, J. Funesti-Esch, M. Galietta, et al., "Depression, hopelessness, and desire for hastened death in terminally ill patients with cancer", Journal of the American Medical Association (2000), 284 (22): 2907-2911; B. Rosenfeld, W. Breitbart, S. Krivo, H.M. Chochinov, "Suicide, assisted suicide, and euthanasia in the terminally ill", in H.M. Chochinov & W. Breitbart (eds), Handbook of psychiatry in palliative medicine (New York: Oxford University Press, 2000) 51-62; H.M. Chochinov, K.G. Wilson, M. Enns, N. Mowchun, S. Lander, M. Levitt and J.J. Clinch, "Desire for Death in the Terminally Ill", American Journal of Psychiatry (1995), 152: 1185-1191. 37 H. Pessin, B. Rosenfeld, W. Breitbart, "Assessing Psychological Distress Near the End of Life", American Behavioral Scientist (2002), 46 (3): 257-372, spec. 358 ; S.D. Passik, W. Dugan, M.V. McDonald, B. Rosenfeld, D.E. Theobald, S. Edgerton, "Oncologists'recognition of depression in their patients with cancer", Journal of Clinical Oncology (1998), 16: 1594-1600; H.M. Chochinov, K.G. Wilson, M. Enns, S. Lander, 'Are you depressed?' Screening for depression in the terminally ill", American Journal of Psychiatry (1997), 154: 674-676; R. Fresco, neuropsychiatrist, "Menace suicidaire et demande d'euthanasie : des equivalents depressifs ?", in M. Abiven, C. Charcot and R. Fresco, Euthanasie — Alternatives et controverses (Paris: Presses de la Renaissance, 2000) pp. 212 et s., and the studies cited. 38 Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. part., Ch. Repr., No. 50 1488/009, p. 52, p. 56, p. 217, p. 243, p. 244, p. 245, etc. 9 Second report to the legislative chambers (2004 and 2005), 2006, p. 22. 49 Statement made in the article "Quatre cas pour depression majeure irreductible", La Libre Belgique (2 February 2007). 41 Third report to the legislative chambers (2006 and 2007), 2008, pp. 16 and 22. 42 Ibid., p. 17. 43 Fourth report to the legislative chambers (2008 and 2009), 2010, pp. 16 and 17 (in 28 cases, death was not expected in the short term). 52 -14-

(Alzheimer's disease, Huntington's disease, multi-infarct dementia, unyielding psychosis, etc).44 We can see that the Belgian experience demonstrates how extremely difficult it is to stick to the initial statements and intentions of the legislators and to ensure that the originally very strict statutory conditions have been met.

62. Starting with its Third Report, the majority of Commission de contrOle members also decided, following lively debate, that [TRANSLATION] "a future dramatic change ... was enough to constitute unbearable, irrelievable mental suffering within the meaning of the Act."45 The Fourth Report indicates, however, that certain members of the Commission thought mental suffering had been interpreted too broadly. The majority of Commission members did not agree with that point of view.46 The Fifth Report indicated the same controversial issue: some Commission members were of the opinion that a foreseeable dramatic change could not constitute unbearable, irrelievable mental suffering in the present in accordance with the meaning of the Act on euthanasia. However, the majority of Commission members did not share this point of view. 47

63. In other words, the degree of pain required for access to euthanasia can include anticipated future pain. The cases of Hugo Claus (euthanized as a preventive measure at the appearance of the first symptoms of Alzheimer's disease; cited in para. 35), Christian de Duve (para. 36), Emiel Pauwels (para. 37) and the Verbessem twins (paras. 38 and 39), among many other cases, demonstrate the questionable and debated interpretation of constant, unbearable suffering.

From euthanasia to physician-assisted suicide

64. The Belgian legislator clearly intended to exclude physician-assisted suicide from the scope of the Act on euthanasia. This intention was criticized and debated extensively when the Act was being developed.48 A number of amendments were introduced to incorporate physician- assisted suicide into the scope of the Act, but they were all rejected49 to the Conseil d'Etat's astonishmene° After the Act was passed, parliamentarians deemed it necessary to propose bills to amend the Act on euthanasia to include physician-assisted suicide performed under the same conditions as those applicable to euthanasia.51 To them, it is clear that physician-assisted

44 report to the legislative chambers (2010-2011), 2012, pp.8, 9 and 14 (in 47 cases, death was not expected in the short term). 45 Third report to the legislative chambers (2006 and 2007), 2008, p. 24. 46 Fourth report to the legislative chambers (2008 and 2009), 2010, p. 33. 47 Fifth report to the legislative chambers (2010-2011), 2012, p. 16. 48 Rapport fait au nom de la Commission de la Justice, (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009, p. 55, p. 57. See also Rapport fait au nom des Commissions rdunies de la Justice et des Affaires sociales (9 July 2001) Doc. parl., 52 Sdnat, session 2000-2001, No. 2-244/22, p. 545 et s., p. 581 et s., p. 613 et s. 49 Cf., for example, the discussion set out at page 190 of the Rapport fait au nom de la Commission de la Justice, (23 April -14- 2002) Doc. parl., Ch. repr., No. 50 1488/009. 5° Proposition de loi relative a l'euthanasie, Avis du Conseil d'Etat, (2 July 2001) No. 2-244/21, pp. 14-15. The Conseil d'Etat inferred this clear wish of the legislator from the rejection of amendments nos. 5, 24 and 97, loc. cit., p. 14, note 3. (Alzheimer's disease, Huntington's disease, multi-infarct dementia, unyielding psychosis, 51 Cf., for example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie et introduisant la notion 44 etc). We can see that the Belgian experience demonstrates how extremely difficult it is to d'auto-euthanasie (26 May 2008) Doc. parl., Sdnat, sess. 2007-2008, No. 4-7841/1, which restates, with a few stick to the initial statements and intentions of the legislators and to ensure that the amendments, the wording of a bill that had previously been introduced in the Senate on October 2, 2003, Doc. parl., Senat, originally very strict statutory conditions have been met. sess. extr. 2003, No. 3-220/1.

From euthanasia to physician-assisted suicide

44 report to the legislative chambers (2010-2011), 2012, pp.8, 9 and 14 (in 47 cases, death was not expected in the short term). 45 Third report to the legislative chambers (2006 and 2007), 2008, p. 24. 46 Fourth report to the legislative chambers (2008 and 2009), 2010, p. 33. 47 Fifth report to the legislative chambers (2010-2011), 2012, p. 16. 48 Rapport fait au nom de la Commission de la Justice, (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009, p. 55, p. 57. See also Rapport fait au nom des Commissions rdunies de la Justice et des Affaires sociales (9 July 2001) Doc. parl., Sdnat, session 2000-2001, No. 2-244/22, p. 545 et s., p. 581 et s., p. 613 et s. 49 Cf., for example, the discussion set out at page 190 of the Rapport fait au nom de la Commission de la Justice, (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009. 5° Proposition de loi relative a l'euthanasie, Avis du Conseil d'Etat, (2 July 2001) No. 2-244/21, pp. 14-15. The Conseil d'Etat inferred this clear wish of the legislator from the rejection of amendments nos. 5, 24 and 97, loc. cit., p. 14, note 3. 51 Cf., for example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie et introduisant la notion d'auto-euthanasie (26 May 2008) Doc. parl., Sdnat, sess. 2007-2008, No. 4-7841/1, which restates, with a few amendments, the wording of a bill that had previously been introduced in the Senate on October 2, 2003, Doc. parl., Senat, sess. extr. 2003, No. 3-220/1. 53 -15-

suicide is not covered by the Act and therefore constitutes an illegal practice within the meaning of the Act as it is currently written. 52

65. Therefore, it is surprising that the Commission de contrOle regularly approves reported physician-assisted suicide cases and has been doing so since its first official report, 53 stating that the practice [TRANSLATION] "falls within the scope of the Act, as it is currently written, according to which the physician is in control of the dying process until the end, regardless of conditions."54 In its Second Report, the Commission de contrOle seems to identify 10 cases of physician-assisted suicide and specifies that its interpretation is in line with the position of the Conseil de l'Ordre des medecins. 55 The Third,56 Fourth57 and Fifth58 Reports indicate 24, 14 and 12 cases of physician-assisted suicide respectively.

66. As long as physician-assisted suicide complies with the conditions of the Act on euthanasia, it seems logical and reasonable that it would be handled in the same way. Nonetheless, it must be noted that a practice that the legislator intentionally excluded from the scope of the Act has been approved. This suggests slippage, as it is not for the Ordre des medecins or the Commission de contrOle to decide that they are above the law.

67. In addition, it is far from clear whether physicians feel legally obligated to report to the Commission de contrOle situations in which they assisted a patient in ending his/her own life given that the Act requires "the physician performing euthanasia" only to report to the Commission de contrOle (section 5). This also means that we cannot rely on the figures on physician-assisted suicide provided by the Commission de contrOle.

Euthanasia as a narrowly circumscribed, well-defined exception is an illusion

68. Brevitatis causa, it was not possible to provide detailed critical commentary on each condition in the Act and the way in which it is controlled. I have not mentioned, for example, the condition according to which the act of euthanasia shall be performed by a physician only. According to various articles and testimonies, nurses are allegedly regularly asked to perform the lethal act themselves. 59 According to an article published in De Standaard, in 12% of

52 Cf. preamble of the Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie et Parrete royal du 2 avril 2003 fixant les modalites suivant lesquelles la declaration anticipee relative a l'euthanasie est redigee, confirmee, revisee ou retiree (18 October 2007) doc. Sénat, sess. 2007-2008, No. 4-301/1. This bill reproduces the wording of a bill that had previously been introduced in the Senate on April 25, 2006, doc. Senat, sess. 2005-2006, No. 3-1671/1. s' First report to the legislative chambers (22 September 2002 - 31 December 2003), 2004, p. 17. 54 First report to the legislative chambers (22 September 2002 - 31 December 2003), 2004, p. 24. 55 Second report to the legislative chambers (2004 and 2005), 2006, p. 24. Cf. Conseil National de l'Ordre des medecins, Avis du 22 mars 2003 relatif aux soins palliatifs, a l'euthanasie et a d'autres decisions medicales concernant la fm de vie, Bulletin, vol. XI (June 2003). 53 56 Third report to the legislative chambers (2006 and 2007), 2008, p. 24. -15- 57 Fourth report to the legislative chambers (2008 and 2009), 2010, p. 24. 58 Fifth report to the legislative chambers (2010 and 2011), 2012, p. 17. 59 R. Cohen-Almagor, "First do no harm: pressing concerns regarding euthanasia in Belgium", International Journal of suicide is not covered by the Act and therefore constitutes an illegal practice within the Law and Psychiatry 36 (2013): 515-521, and references; E. Inghelbrecht, J. Bilsen, F. Mortier, F. Deliens, "The role of meaning of the Act as it is currently written. 52 nurses in physician-assisted deaths in Belgium", CMAJ (2010), 182 (9): 905-910. Cf. also the testimony related in "La legalisation de l'euthanasie en Belgique : un bilan" - study conducted for the [TRANSLATION] 'ethics, law and health' 65. Therefore, it is surprising that the Commission de contrOle regularly approves reported working group of the Collectif Plus digne la vie, Dr. B. Devalois ed., 2012, pp. 6-7. physician-assisted suicide cases and has been doing so since its first official report, 53 stating that the practice [TRANSLATION] "falls within the scope of the Act, as it is currently written, according to which the physician is in control of the dying process until the end, regardless of conditions."54 In its Second Report, the Commission de contrOle seems to identify 10 cases of physician-assisted suicide and specifies that its interpretation is in line with the position of the Conseil de l'Ordre des medecins. 55 The Third,56 Fourth57 and Fifth58 Reports indicate 24, 14 and 12 cases of physician-assisted suicide respectively.

Euthanasia as a narrowly circumscribed, well-defined exception is an illusion

cases, euthanasia would be perfolined by a nurse and more often than not without a patient request.°

69. Therefore, 11 years of experience in Belgium has taught us that it is illusory to think that euthanasia can be allowed as a narrowly circumscribed, well-defined exception practiced in a rigorously controlled manner. By various interpretive means, cases of euthanasia continue to increase despite the legislator's initial statements and intentions.

70. From the moment euthanasia legislation becomes grounded in the philosophy of autonomy, it seems logical and natural that, sooner or later, a patient's repeated wish will take precedence over strict statutory conditions. Not surprisingly, euthanasia proponents state: [TRANSLATION] "Who, other than the person in question, can reasonably determine [the severity of his/her condition]?"61 Similarly, a member of the Commission de contrOle wrote: [TRANSLATION] "Again, it comes down to the basis of the legislation decriminalizing euthanasia: respect for an individual's autonomy."62 Although these views are routed in common sense, they seem to disregard the other "strict statutory conditions."

Relevance and reliability of a posteriori control

71. Given that euthanasia produces irreversible effects, the very principle of a posteriori control appears questionable. It is obviously not capable of protecting patients against euthanasia procedures that violate the statutory conditions. We may question the scope and relevance of the control when the Commission is unfamiliar with the patient's medical record. Of course it can ask to see the record (section 8 of the Act on euthanasia), but in practice, it does not exercise this option. 63 Furthermore, since it is controlling only on the basis of the information provided by the physician (self reporting), we may question whether the Commission is capable of assessing in an informed manner whether all the statutory conditions have indeed been met.64

72. In successive reports, the Commission de contrOle confesses to feeling powerless: it states that realistically it cannot assess the number of reported euthanasia cases versus the number of

6° Cf. "Verplegers willen laatste spuitje niet meer geven" ([TRANSLATION]: nurses no longer want to give the last injection), De Standaard (13 December 2010) p. 9. 61 J.P. Jaeken, "Mise au point concernant des patients ages", Bulletin de l'ADMD, No. 112 (June 2009) p. 10. 62 J. Herremans and P. Galand, "Carte blanche - Euthanasie : entre !'application de la loi et son extension", Le Soir, April 2, 2009, p. 14, published also in Bulletin de l'ADMD (Belgium), No. 112 (June 2009) p. 13. 63 The official reports indicate that most physician's reports are accepted outright; in 20% of cases (on average), the condition of anonymity was lifted, through the opening of part I, as decided by the Commission, alone, for information purposes, to make the physician aware of some faults in his or her answers or errors of interpretation regarding minor 54 aspects of the procedures followed. More rarely, the opening of part I was intended to obtain additional information from -16- the physician regarding one or more points in a document that were poorly, insufficiently or not at all completed. Cf. First report to the legislative chambers (22 September 2002 - 31 December 2003), 2004, p. 19; Second report (2004 and 2005), 2006, p. 26; Third report (2006 and 2007), 2008, p. 26; Fourth report (2008 and 2009), 2010, p. 26; Fifth report (2010- cases, euthanasia would be perfolined by a nurse and more often than not without a patient 2011), 2012, p. 18. request.° 64 Cf., for example, hearing of Professor ROW. Delco, Appendix to the Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Alloy and Ms. Van Rite — sess. 2000-2001 (9 July 2001) Sènat, No. 2-244/24, 69. Therefore, 11 years of experience in Belgium has taught us that it is illusory to think that p. 897. euthanasia can be allowed as a narrowly circumscribed, well-defined exception practiced in a rigorously controlled manner. By various interpretive means, cases of euthanasia continue to increase despite the legislator's initial statements and intentions.

Relevance and reliability of a posteriori control

72. In successive reports, the Commission de contrOle confesses to feeling powerless: it states that realistically it cannot assess the number of reported euthanasia cases versus the number of

6° Cf. "Verplegers willen laatste spuitje niet meer geven" ([TRANSLATION]: nurses no longer want to give the last injection), De Standaard (13 December 2010) p. 9. 61 J.P. Jaeken, "Mise au point concernant des patients ages", Bulletin de l'ADMD, No. 112 (June 2009) p. 10. 62 J. Herremans and P. Galand, "Carte blanche - Euthanasie : entre !'application de la loi et son extension", Le Soir, April 2, 2009, p. 14, published also in Bulletin de l'ADMD (Belgium), No. 112 (June 2009) p. 13. 63 The official reports indicate that most physician's reports are accepted outright; in 20% of cases (on average), the condition of anonymity was lifted, through the opening of part I, as decided by the Commission, alone, for information purposes, to make the physician aware of some faults in his or her answers or errors of interpretation regarding minor aspects of the procedures followed. More rarely, the opening of part I was intended to obtain additional information from the physician regarding one or more points in a document that were poorly, insufficiently or not at all completed. Cf. First report to the legislative chambers (22 September 2002 - 31 December 2003), 2004, p. 19; Second report (2004 and 2005), 2006, p. 26; Third report (2006 and 2007), 2008, p. 26; Fourth report (2008 and 2009), 2010, p. 26; Fifth report (2010- 2011), 2012, p. 18. 64 Cf., for example, hearing of Professor ROW. Delco, Appendix to the Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Alloy and Ms. Van Rite — sess. 2000-2001 (9 July 2001) Sènat, No. 2-244/24, p. 897. 55

-17-

euthanasia cases actually performed.65 Yet, in 2002, the goal of taking euthanasia out of the shadows was a strong argument made by people in favour of decriminalizing it.

73. Since its first official report, the Commission has claimed that it is [TRANSLATION] "aware of the limitations on its monitoring of the Act of May 28, 2002, that it is tasked with implementing." It notes [TRANSLATION] "It is clear that the effectiveness of its mission is based partially on medical professionals' compliance with the requirement to report euthanasia cases performed and partially on how these reports are prepared".66 In other words, the Commission sees only what it is shown by the physicians it oversees.

74. That is the problem with controlling after the patient has been euthanized on the basis of the physician's report. It is unrealistic to assert that a physician will self-report if he or she has not complied with the statutory conditions. It is hard to believe that the physician will diligently comply with the rules of procedure in cases where he or she has ignored one or more of the substantive rules. It is far more likely that the physician will fail to report cases that do not meet the statutory conditions for euthanasia or will report them such that he or she cannot be faulted. According to a number of studies, a high percentage of euthanasia cases are not reported to the Commission de contrOle. 67

75. In addition to the various issues raised, there is another problem likely to impede the proper functioning of the Commission de contrOle. The legislator prescribed that the Commission be composed such that it "ensures plural representation" (art. 6, § 2). However, the vast majority of Commission de contrOle members are also members of the ADMD, an association whose social objective is to promote the right to euthanasia, or RWS (Recht op Waardig Sterven, the Flemish equivalent of ADMD) and/or the EOL forum (including instructors) (End-of-life doctors, created in 2003 in the French Community, at the initiative and with the logistical support of the ADMD) or the LEIF (LevensEinde Informatie Forum, created by the RWS). And, though they may not be members of the above organizations, others are known euthanasia proponents and even activists.

76. Without questioning the Commission members' competence and integrity, given its composition, we can still be legitimately concerned that it does not seem inclined to review

65 Commission feat-ale de contrOle et d'evaluation de I'euthanasie, First report to the legislative chambers (22 September 2002 — 31 December 2003), 2004, p. 14; Second report (2004 and 2005), 2006, p. 22; Third report (2006 and 2007), 2008, p. 22; Fourth report (2008 and 2009), 2010, p. 22; Fifth report (2010-2011), 2012, p. 14. 66 Commission fdderale de contrOle, First report (22 September 2002 —31 December 2003), 2004, p. 23.

67 Cf. R. Cohen -Almagor, "First do no harm: pressing concerns regarding euthanasia in Belgium", International Journal of Law and Psychiatry 36 (2013):515-521 (50% of euthanasia cases allegedly are not reported); J. Cohen, Y. Van Wesemael, 55 T. Smets, J. Bilsen, L. Deliens, "Cultural differences affecting euthanasia practice in Belgium. One law but different attitudes and practices in Flanders and Wallonia ", Social Science & Medicine (2012) 75 (5):845-853 (73% of euthanasia -17- cases were reported by Flemish physicians to the Commission de contrOle, whereas 58% of cases by their Walloon counterparts); T. Smets, J. Bilsen, J. Cohen, M.L. Rurup, F. Mortier, L. Deliens, "Reporting of euthanasia in medical practice in Flanders, Belgium: cross sectional analysis of reported and unreported cases", BMJ (2010); 341:1-8 euthanasia cases actually performed.65 Yet, in 2002, the goal of taking euthanasia out of the (approximately 50% of euthanasia cases reported in Flanders); K. Chambaere, J. Bilsen, J. Cohen, G. Pousset, B. shadows was a strong argument made by people in favour of decriminalizing it. Onwuteaka-Philipsen, F. Mortier, L. Deliens, "A post mortem survey on end-of-life decisions using a representative sample of death certificates in Flanders", BMC Public Health (2008) 8: 299 (53% of euthanasia cases were reported in 73. Since its first official report, the Commission has claimed that it is [TRANSLATION] "aware of Flanders). the limitations on its monitoring of the Act of May 28, 2002, that it is tasked with implementing." It notes [TRANSLATION] "It is clear that the effectiveness of its mission is based partially on medical professionals' compliance with the requirement to report euthanasia cases performed and partially on how these reports are prepared".66 In other words, the Commission sees only what it is shown by the physicians it oversees.

76. Without questioning the Commission members' competence and integrity, given its composition, we can still be legitimately concerned that it does not seem inclined to review

reporting documents in a manner that is sufficiently critical. This situation has been the subject of ongoing criticism.68

77. In sum, euthanasia is controlled a posteriori by a majority of people who are firmly committed to promoting this practice, on the sole basis of reports completed by the physicians themselves (self reporting). Moreover, there is no means of determining whether the euthanasia cases performed are actually reported or whether the information provided in part two is reliable. Finally, the Commission does not consult the medical file of euthanized patients and the decision to send a file to the public prosecutor requires the consent of a two-thirds majority. However, as was pointed out during the preparatory stages of the Act, since the consent of two-thirds of Commission members is required to send a file to the Crown, it seems impossible, given the composition of the Commission, that a file would be sent without the cooperation of physician members or against the spirit of a major philosophical movement. 69

78. Under these conditions, it should come as no surprise that in the 11 years since the Act has come into force, the Commission has never found it necessary to send a file to the public prosecutor. In reality, the Commission does not have the means of verifying whether the statutory conditions were in fact met. Consequently, it would be unwise, if not deceitful, to rely on its official reports to unequivocally state that euthanasia is under control in Belgium and that the conditions set out in the Act are fully met.

C. ANALYSIS OF RECENT LEGISLATIVE DEVELOPMENTS

a) Recent legislative developments: euthanasia for children

79. Not much more than ten years later, the Act on euthanasia was extended to minors. The act amending the Act on euthanasia to extend it to minors was enacted on February 28, 2014. 70

80. Euthanasia is now available to minor patients, of any age, if they are in constant and unbearable physical suffering that cannot be alleviated, is expected to cause death in the near future and results from a serious and incurable disorder caused by illness or accident. A child psychiatrist or psychologist must certify that the child has the capacity to discern, and the parents must be in agreement.

81. This act, whose form and substance have been criticized by many, carries the seed of discrimination that will be challenged soon: it is limited to cases of [TRANSLATION] "physical" suffering and [TRANSLATION] "death in the near future" whereas these conditions do not apply to adults.

56 68 Cf. Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Khattabi and Ms. Van -18- Hoof (4 December 2013) Doc. parl., Senat, secs. ord. 2013-2014, No. 5-2170/4, pp. 40-41 et passim; F. Soumois, "Les contrOleurs de l'euthanasie sous influence ?", Le Soir (17 January 2014); R. Lallemand and W. Distelmans, "Mise au point sur le contrOle de l'euthanasie", Journal du medecin, No. 2345 (10 January 2014) p. 31. reporting documents in a manner that is sufficiently critical. This situation has been the subject 69 See, for example, Hearing of Prof. M. Adams, Rapport fait au nom de la Commission de la Justice, by T. Giet, A. Van of ongoing criticism.68 De Casteele, A. Barzin and J. Schauvliege (23 April 2002), Doc. parl., Ch. repr., No. 50 1488/009, pp. 145. 70 Act dated February 28, 2014, loi modifiant la loi du 28 mai 2002 relative a l'euthanasie, en vue d'etendre l'euthanasie 77. In sum, euthanasia is controlled a posteriori by a majority of people who are firmly committed aux mineurs, Moniteur Beige (12 March 2014) p. 21053. to promoting this practice, on the sole basis of reports completed by the physicians themselves (self reporting). Moreover, there is no means of determining whether the euthanasia cases performed are actually reported or whether the information provided in part two is reliable. Finally, the Commission does not consult the medical file of euthanized patients and the decision to send a file to the public prosecutor requires the consent of a two-thirds majority. However, as was pointed out during the preparatory stages of the Act, since the consent of two-thirds of Commission members is required to send a file to the Crown, it seems impossible, given the composition of the Commission, that a file would be sent without the cooperation of physician members or against the spirit of a major philosophical movement. 69

C. ANALYSIS OF RECENT LEGISLATIVE DEVELOPMENTS

a) Recent legislative developments: euthanasia for children

79. Not much more than ten years later, the Act on euthanasia was extended to minors. The act amending the Act on euthanasia to extend it to minors was enacted on February 28, 2014. 70

68 Cf. Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Khattabi and Ms. Van Hoof (4 December 2013) Doc. parl., Senat, secs. ord. 2013-2014, No. 5-2170/4, pp. 40-41 et passim; F. Soumois, "Les contrOleurs de l'euthanasie sous influence ?", Le Soir (17 January 2014); R. Lallemand and W. Distelmans, "Mise au point sur le contrOle de l'euthanasie", Journal du medecin, No. 2345 (10 January 2014) p. 31. 69 See, for example, Hearing of Prof. M. Adams, Rapport fait au nom de la Commission de la Justice, by T. Giet, A. Van De Casteele, A. Barzin and J. Schauvliege (23 April 2002), Doc. parl., Ch. repr., No. 50 1488/009, pp. 145. 70 Act dated February 28, 2014, loi modifiant la loi du 28 mai 2002 relative a l'euthanasie, en vue d'etendre l'euthanasie aux mineurs, Moniteur Beige (12 March 2014) p. 21053. 57 -19-

82. This reform was passed quickly, without any real social demand for it, despite the opposition of numerous pediatricians, professors of pediatrics and other practitioners experienced in caring for seriously ill children,71 without going before the Commission de la Sante du Senat, with the refusal to conduct all the expert hearings requested at the Chambre des Representants and, last but not least, without a request for an opinion from the Conseil d'Etat.

b) Emerging legislative developments

83. Since the coming into force of the Act on euthanasia, dozens of bills have been introduced in parliament in an effort to relax the conditions for euthanasia or expand their scope.

84. Some bills are aimed at simplifying the wording and the confirmation of the advance directive (cf. supra, No. 26) by reducing the number of witnesses required, extending its period of validity, even removing the obligation to confirm the directive. 72 Other bills want to impose on a physician who refuses to accede to a request for euthanasia an obligation to refer the case to another physician who is in favour of the practice. 73 Other bills also propose to compel physicians to inform their patients as soon as possible, within a very short time frame, that they refuse to practise euthanasia, 74 while in practice, things are not that simple in that the refusal may not result from an objection in principle but from the fact that the physician has not arrived, with the patient, at the conviction that there is no other reasonable solution (s. 3, §2, 1, of the Act). Especially since it often happens today that, as soon as the patient is informed of a troubling diagnosis, the patient makes a vague request for euthanasia: it is understandable that the physician wants to begin by reassuring the patient, telling him or her

71 Opinion signed by 38 pediatricians, "Fin de vie des enfants: une loi inutile et precipitee," La Libre Belgique (29 January 2015). Within a few days, the list of signatories grew to almost 200 pediatricians. Cf. A. Hovine, "Il faut reporter le vote sur l'euthanasie des enfants," La Libre Belgique (12 February 2014) p. 9. Information relayed in numerous other newspapers. 72 We mention only the recent bills: Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie visant supprimer la validite limitee a cinq ans de la declaration anticipee et laissant le patient la determiner lui-m'eme (26 June 2013) Doc. part., Senat, No. 5-2171/1; Proposition de loi modifiant la loi du 28 mai 2012 relative a l'euthanasie en ce qui concerne la procedure d'enregistrement de la declaration anticipee (24 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1942/1; Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie (10 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1919/1; Proposition de loi portant modification de la loi du 28 mai 2002 relative a l'euthanasie en ce qui concerne la durde de validite de la declaration anticipee (5 October 2012) Doc. part., Senat, sess. 2011-2012, No. 5-1799/1. Cf. also bill introduced on May 9, 2012, Doc. part., Senat, sess. 2011-2012, No. 5-1611/1, Bill introduced on August 16, 2010, Doc. part., Senat, sess. extr. 2010, No. 5-24/1. 73 For example, Proposition de loi modifiant la loi du 28 mai 2012 relative a l'euthanasie (9 May 2012) Doc. part., Senat, sess. 2011-2012, No. 5-1611/1; Bill introduced August 16, 2010, Doc. part., Sónat, sess. extr. 2010, No. 5-22/1; Proposition de loi portant modification de la loi du 28 mai 2002 relative a l'euthanasie en vue d'instaurer l'obligation pour le medecin qui refuse de pratiquer une euthanasie d'adresser le patient a un confrere (5 October 2012) Doc. part., Senat, session 2011-2012, No. 5-1798/1 (under the latter bill, the obligation would lie with the hospital's social services). 57 74 For example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie, en vue de fixer un alai a -19- respecter par le mddecin, d'une part, pour repondre a la demande d'euthanasie du patient, d'autre part, pour transmettre le dossier medical du patient a une commission au cas on it refuserait d'acceder a la demande de celui-ci (26 June 2013) Doc. part., Senat, No. 5-2172/1; Bill cited above (10 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1919/1. Cf already the Arrete du Gouvernement flamand du 14 septembre 2012 relatif a la programmation, aux conditions d'agrement 82. This reform was passed quickly, without any real social demand for it, despite the opposition et au regime de subventionnement de structures de services de soins et de logement et d'associations d'usagers et of numerous pediatricians, professors of pediatrics and other practitioners experienced in d'intervenants de proximité, en ce qui concerne les services d'aide aux families et de soins a domicile complementaires et caring for seriously ill children,71 without going before the Commission de la Sante du Senat, les centres de soins de jour — Annexe IX - Centres de soins de jour, M.B. (14 November 2012) p. 68342. with the refusal to conduct all the expert hearings requested at the Chambre des Representants and, last but not least, without a request for an opinion from the Conseil d'Etat.

b) Emerging legislative developments

83. Since the coming into force of the Act on euthanasia, dozens of bills have been introduced in parliament in an effort to relax the conditions for euthanasia or expand their scope.

71 Opinion signed by 38 pediatricians, "Fin de vie des enfants: une loi inutile et precipitee," La Libre Belgique (29 January 2015). Within a few days, the list of signatories grew to almost 200 pediatricians. Cf. A. Hovine, "Il faut reporter le vote sur l'euthanasie des enfants," La Libre Belgique (12 February 2014) p. 9. Information relayed in numerous other newspapers. 72 We mention only the recent bills: Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie visant supprimer la validite limitee a cinq ans de la declaration anticipee et laissant le patient la determiner lui-m'eme (26 June 2013) Doc. part., Senat, No. 5-2171/1; Proposition de loi modifiant la loi du 28 mai 2012 relative a l'euthanasie en ce qui concerne la procedure d'enregistrement de la declaration anticipee (24 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1942/1; Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie (10 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1919/1; Proposition de loi portant modification de la loi du 28 mai 2002 relative a l'euthanasie en ce qui concerne la durde de validite de la declaration anticipee (5 October 2012) Doc. part., Senat, sess. 2011-2012, No. 5-1799/1. Cf. also bill introduced on May 9, 2012, Doc. part., Senat, sess. 2011-2012, No. 5-1611/1, Bill introduced on August 16, 2010, Doc. part., Senat, sess. extr. 2010, No. 5-24/1. 73 For example, Proposition de loi modifiant la loi du 28 mai 2012 relative a l'euthanasie (9 May 2012) Doc. part., Senat, sess. 2011-2012, No. 5-1611/1; Bill introduced August 16, 2010, Doc. part., Sónat, sess. extr. 2010, No. 5-22/1; Proposition de loi portant modification de la loi du 28 mai 2002 relative a l'euthanasie en vue d'instaurer l'obligation pour le medecin qui refuse de pratiquer une euthanasie d'adresser le patient a un confrere (5 October 2012) Doc. part., Senat, session 2011-2012, No. 5-1798/1 (under the latter bill, the obligation would lie with the hospital's social services). 74 For example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie, en vue de fixer un alai a respecter par le mddecin, d'une part, pour repondre a la demande d'euthanasie du patient, d'autre part, pour transmettre le dossier medical du patient a une commission au cas on it refuserait d'acceder a la demande de celui-ci (26 June 2013) Doc. part., Senat, No. 5-2172/1; Bill cited above (10 January 2013) Doc. part., Senat, sess. 2012-2013, No. 5-1919/1. Cf already the Arrete du Gouvernement flamand du 14 septembre 2012 relatif a la programmation, aux conditions d'agrement et au regime de subventionnement de structures de services de soins et de logement et d'associations d'usagers et d'intervenants de proximité, en ce qui concerne les services d'aide aux families et de soins a domicile complementaires et les centres de soins de jour — Annexe IX - Centres de soins de jour, M.B. (14 November 2012) p. 68342. 58 -20-

that the disease is in its early stages, that it may be possible to stop it from spreading or that it

is curable, that there are treatments available . . . . 75

85. A number of bills already introduced in parliament aim to extend the application of the Act on euthanasia. Many of them involved opening the Act to minors: they have already succeeded and will no longer be considered. A number of politicians, male and female, have indicated publicly in the media or by introducing bills that they are determined to see euthanasia extended to dementia patients and disabled newborns, while stating that they want to proceed step by step so as not to frighten people.

i. Towards euthanasia for dementia patients?

86. A number of new bills aim to extend the decriminalization of euthanasia on the basis of an advance directive where the physician believes that the patient, while not in an irreversible coma (strict and objective test, currently in force), is progressively losing his or her cognitive abilities and is no longer self-aware.76 Some bills combine this perspective and the fact of making the advance directive valid indefinitely.77 It is surprising to note how much these new bills are ignoring the cautionary considerations expressed as the 2002 act was being developed.78

ii. Towards euthanasia for disabled newborns?

87. Some of the country's elected officials also argue for the legalization of neonatal euthanasia. This would involve newborns with a fatal disease or those who are very premature. It is apparent from one bill that it is [TRANSLATION] "urgent to extend the Act on euthanasia to minors" by providing that [TRANSLATION] "where the child does not have the capacity to discern" the parents may request euthanasia. 79 Others favour adopting a protocol, outside of the Act," based on the model of the Groningen Protocol adopted in the Netherlands for newborn euthanasia. 81

iii. Towards unrequested euthanasia?

75 Information taken from the converging evidence of medical oncologists. 76 For example, Proposition de loi modifiant I'article 4 de la loi du 28 mai 2002 relative a l'euthanasie (2 April 2008), Doc. parl., Sena, No. 4-676/1, which repeats the wording of a bill previously introduced on December 14, 2005, Doc. parl., Sena, sess. 2005-2006, No. 3-1485/1. 77 For example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie en vue de Petendre aux personnes atteintes d'une affection cerebrale incurable a un stade avance et irreversible et qui ont exprime leurs volontes dans une declaration anticipde d'euthanasie (3 July 2013) Doc. parl., Sena, No. 5-2184/1; Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie (9 May 2012) Doc. parl., Sena, session 2011-2012, No. 5-1611/1. 78 Cf., for example, Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, Doc. parl., Sena, 58 sess. ord. 2000-2001, No. 2-244/22, pp. 80, 329 to 334, 386 and ff., etc.; Rapport fait au nom de la Commission de la Justice, Doc. parl., Ch. Repr., sess. ord. 2001-2002, No. 50-1488/009, p. 249. -20- 79 Proposition de loi completant, en ce qui conceme les mineurs, la loi du 28 mai 2002 relative a l'euthanasie (9 May 2012) Doc. parl., Sena, sess. ord. 2011-2012, No. 5-1610/1. In the same vein, previously, see Doc. parl., Sena, No. 3- 1993/1 and No. 4-431/1; Doc. parl., Ch. repr., No. 2553/1 and No. 611/1. that the disease is in its early stages, that it may be possible to stop it from spreading or that it 80 For example, Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Khattabi and

is curable, that there are treatments available . . . . 75 Ms. Van Hoof (4 December 2013) Doc. parl., Sénat, sess. ord. 2013-2014, No. 5-2170/4, p. 13. 81 E. Verhagen, P.J. Sauer, "The Groningen Protocol — Euthanasia in Severely Ill Newborns," N. Engl. J. Med., 352, 10 85. A number of bills already introduced in parliament aim to extend the application of the (2005): 959-962. Act on euthanasia. Many of them involved opening the Act to minors: they have already succeeded and will no longer be considered. A number of politicians, male and female, have indicated publicly in the media or by introducing bills that they are determined to see euthanasia extended to dementia patients and disabled newborns, while stating that they want to proceed step by step so as not to frighten people.

i. Towards euthanasia for dementia patients?

ii. Towards euthanasia for disabled newborns?

iii. Towards unrequested euthanasia?

75 Information taken from the converging evidence of medical oncologists. 76 For example, Proposition de loi modifiant I'article 4 de la loi du 28 mai 2002 relative a l'euthanasie (2 April 2008), Doc. parl., Sena, No. 4-676/1, which repeats the wording of a bill previously introduced on December 14, 2005, Doc. parl., Sena, sess. 2005-2006, No. 3-1485/1. 77 For example, Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie en vue de Petendre aux personnes atteintes d'une affection cerebrale incurable a un stade avance et irreversible et qui ont exprime leurs volontes dans une declaration anticipde d'euthanasie (3 July 2013) Doc. parl., Sena, No. 5-2184/1; Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie (9 May 2012) Doc. parl., Sena, session 2011-2012, No. 5-1611/1. 78 Cf., for example, Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, Doc. parl., Sena, sess. ord. 2000-2001, No. 2-244/22, pp. 80, 329 to 334, 386 and ff., etc.; Rapport fait au nom de la Commission de la Justice, Doc. parl., Ch. Repr., sess. ord. 2001-2002, No. 50-1488/009, p. 249. 79 Proposition de loi completant, en ce qui conceme les mineurs, la loi du 28 mai 2002 relative a l'euthanasie (9 May 2012) Doc. parl., Sena, sess. ord. 2011-2012, No. 5-1610/1. In the same vein, previously, see Doc. parl., Sena, No. 3- 1993/1 and No. 4-431/1; Doc. parl., Ch. repr., No. 2553/1 and No. 611/1. 80 For example, Rapport fait au nom des Commissions reunies de la Justice et des Affaires sociales, by Ms. Khattabi and Ms. Van Hoof (4 December 2013) Doc. parl., Sénat, sess. ord. 2013-2014, No. 5-2170/4, p. 13. 81 E. Verhagen, P.J. Sauer, "The Groningen Protocol — Euthanasia in Severely Ill Newborns," N. Engl. J. Med., 352, 10 (2005): 959-962. 59 -21-

88. There are currently calls to legalize unrequested euthanasia. As one intensive care doctor stated in a recent news article (February 25, 2014), this is not a matter of increasing doses of analgesics to alleviate pain or other symptoms, [TRANSLATION] "but administering significant doses of sedatives to hasten death when the quality of life has become insufficient." 82 The Belgian Society of Intensive Care Medicine published an article in the Journal of Critical Care (2014) clearly stating that this is about being able to practise euthanasia without an explicit request, with the assistance of analgesic agents or sedatives, even in the absence of discomfort, in full consideration of the family's wishes. 83

Decyphering recent and emerging legislative developments

89. On delicate issues that pertain to the end of life, we are loath to think abstractly, with the necessary conceptual rigour. Because the concepts and principles, as refined as they are, seem abstract and distant from real life situations. It is more tempting to concentrate our attention on an extreme case, especially dramatic, by pretending not to know that the solution identified ad casum will soon be generalized. The discussion often focuses on a few [TRANSLATION] "borderline" cases, emotionally charged and skilfully publicized. The public debate around the end of life is frequently reduced to a few slogans and stereotypes, created by feelings rather than relying on the exchange of rational arguments.

90. Originally, the Act on euthanasia enshrined [TRANSLATION] "the measured ability to make a request" for euthanasia and provided that a physician [TRANSLATION] "who freely agrees to act on the request"84 does not commit a criminal offence. Far from instituting a new [TRANSLATION] "right to euthanasia," the Act was limited to decriminalizing, on conditions, the act by which a physician freely responds to a request for euthanasia.

91. During the development of the Act, all the stakeholders—parliamentarians and experts who were heard—agreed that [TRANSLATION] "this bill does not provide a right to euthanasia in the case of patients or an obligation to practise euthanasia in the case of physicians" 85 and that [TRANSLATION] "the bill does not grant patients a subjective right to euthanasia".86 It would be tedious to multiply the references to this type of statement since they are numerous.87

92. Eleven years later, there are countless news articles, web sites, 88 official documents,89 information brochures 90 and bills91 ... stating that a [TRANSLATION] "right to euthanasia"

82 J.-L. Vincent, professor of intensive care, Université Libre de Bruxelles, "Maintenons la sante, mais pas la vie a tout prix," Le Soir (25 February 2014) 26. 83 J.-L. Vincent, M. Schetz, J.J. De Waele, S. Clement de Clety, I. Michaux, Th. Sottiaux, E. Hoste, D. Ledoux, A. De Weerdt, A. Wilmer, On behalf of the Belgian Society of Intensive Care Medicine, "Piece of mind: End of life in the intensive care unit — Statement of the Belgian Society of Intensive Care Medicine," Journal of Critical Care, 29 (2014): 174-175. 59 84 G. Schamps and M. Van Overstraeten, "La loi beige relative a l'euthanasie et ses developpements," in Liber Amicorum -21- Henri-D. Bosly, La Charte, (2009): 353. 85 Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009, p. 34. 86Ibidem, p. 176. " Ibidem, p. 153, p. 337, p. 347, etc. 88. There are currently calls to legalize unrequested euthanasia. As one intensive care doctor 88 http://www .admd.net/intentational/la-be lgique.htm I. stated in a recent news article (February 25, 2014), this is not a matter of increasing doses of 89 Cf. the very official Portail Belgium.be , http://www.belgium.be/fr/sante/ (headings soins de sante/fin de vie/euthanasie). 90 Brochure distributed by one of the most important mutuals in Belgium, available at

Decyphering recent and emerging legislative developments

92. Eleven years later, there are countless news articles, web sites, 88 official documents,89 information brochures 90 and bills91 ... stating that a [TRANSLATION] "right to euthanasia"

82 J.-L. Vincent, professor of intensive care, Université Libre de Bruxelles, "Maintenons la sante, mais pas la vie a tout prix," Le Soir (25 February 2014) 26. 83 J.-L. Vincent, M. Schetz, J.J. De Waele, S. Clement de Clety, I. Michaux, Th. Sottiaux, E. Hoste, D. Ledoux, A. De Weerdt, A. Wilmer, On behalf of the Belgian Society of Intensive Care Medicine, "Piece of mind: End of life in the intensive care unit — Statement of the Belgian Society of Intensive Care Medicine," Journal of Critical Care, 29 (2014): 174-175. 84 G. Schamps and M. Van Overstraeten, "La loi beige relative a l'euthanasie et ses developpements," in Liber Amicorum Henri-D. Bosly, La Charte, (2009): 353. 85 Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009, p. 34. 86Ibidem, p. 176. " Ibidem, p. 153, p. 337, p. 347, etc. 88 http://www .admd.net/intentational/la-be lgique.htm I. 89 Cf. the very official Portail Belgium.be , http://www.belgium.be/fr/sante/ (headings soins de sante/fin de vie/euthanasie). 90 Brochure distributed by one of the most important mutuals in Belgium, available at

exists. References abound. Two consequences result. On the one hand, in the field, this insistence generates difficult misunderstandings because patients seem to believe that they have a right to euthanasia and that they can determine when it will take place without any input from the physician. 92 On the other hand, the claim, open or surreptitious (through manipulation of the language), that there is a real [TRANSLATION] "right to euthanasia" is accompanied by a growing controversy about the institutional dimension of the [TRANSLATION] "conscience clause" or [TRANSLATION] "refusal clause."93

93. It seemed clear, during the preparatory work on the Act on euthanasia, that hospitals could refuse to lend their assistance to the practice of euthanasia after the bill came into effect. In the report of the Commission de la Justice, for example, the following is stated: [TRANSLATION] "The intervener ... is expressly asking all members of the commission whether they agree with the theory that the bill under review gives hospitals the option of prohibiting the practice of euthanasia. The chairperson has concluded that, based on the correct interpretation of the bill under review, hospitals have the right to prohibit the practice of euthanasia in their institution. No member disputed the chairperson's interpretation". 94

94. Today, however, hospitals that refuse to practise euthanasia are often pilloried and threatened with losing their public funding. 95 Here too, we are imperceptibly departing from parliament's initial intentions. Whatever anyone may say, the assertion of [TRANSLATION]" the ultimate freedom" for some goes hand in hand with constraints and pressures exerted on the freedom of others (health care workers, on the one hand, health care institutions, on the other).

95. How to explain this evolution of euthanasia regarded at the outset as an exception and an ethical transgression to a [TRANSLATION] "normalized" euthanasia that is claimed as a right, including in scenarios where it was initially disapproved of? It is because parliament, despite best efforts, cannot always avoid what is referred to in legal sociology as the [TRANSLATION] "Macedonian effect", this unfortunate tendency to think and to fashion a general rule based on an exceptional or marginal case. While no specific distress can be ignored, it is important to remain aware of the logic at work in the legal dynamic. 96

91 Proposition de loi modifiant la loi du 28 mai 2002 relative a l'euthanasie (7 July 2004) Doc. parl., Senat, sess. 2003- 2004, No. 3-804/1, p. 1. 92 Cf. Dr M. van Charante's hearing (Netherlands), Rapport fait au nom de la Commission de la Justice (23 April 2002) Doc. parl., Ch. repr., No. 50 1488/009, p. 337 and Prise de position de l'Association beige des praticiens de l'art infirmier, November 2009, p. 3,

-23-

96. Indeed, rules of law do not have an independent life that play out in accordance with only the will of the parliament that created them. They are part of the legal system, which, like any system, has its own dynamic determined by macro principles (hierarchy of standards, principles of interpretation, principles of equality and non-discrimination, principles drawn from logic or common sense such as [TRANSLATION] "He who can do more can do less", etc.). It is legitimate to draw attention to real cases for which the law does not provide a satisfactory solution and to ask that the law be amended to achieve a desirable result for those cases. But we should ask at the outset whether the proposed approach will result in injecting a dynamic in the system that will have unforeseeable and unwanted effects.

97. In our constitutional systems, the fundamental principles of equality and non-discrimination have acquired an importance that is not lost on anyone. They dictate that similar legal treatment must be given to objectively similar situations and different legal treatment to objectively different situations. But we know that the assessment of situations (are they similar or not?) and the characterization of their treatment (are they similar or not?) are controversial questions.

98. Once euthanasia was decriminalized under certain conditions, it was logical that a tendency developed to consider very close, even [TRANSLATION] "slightly different," situations to be similar and to invoke the principles of equality and non-discrimination to claim euthanasia. For example, in the name of these principles, euthanasia, initially reserved for adults, will have to become open to minors. As was foreseeable, the limit of 18 years quickly appeared arbitrary and a source of unjust discrimination. Another example: the requirement for constant and unbearable physical or mental suffering resulting from a serious and incurable disorder. But, in the name of the same principles, it quickly becomes difficult to refuse euthanasia to a person who reports only unbearable psychological suffering but is not able to show a serious and incurable disorder. The Belgian experience attests to that.

V. FINAL CONSIDERATIONS

99. By way of conclusion, allow me to present a quick reflection based on extensive reading and considerable experience, sustained by regular contacts and discussions with physicians, nurses and palliative care workers.

100. The decriminalization of euthanasia (and medically assisted suicide) is invariably justified by reference to the right to autonomy, self-determination or the [TRANSLATION] "right to make one's own decisions". In a pluralist society that respects the autonomy of individuals, as is often repeated, no one can impose their convictions on others, and everyone must be able to choose their death. We can celebrate the remarkable advance of the idea of autonomy of the person and the political secularization of society. 6I 101. However, we are not obliged to adhere to the ideology of autonomy. The absolutization of -23- autonomy does not do justice to the complexity of things and is based on questionable assumptions. The Act on euthanasia conveys an unreal and fictitious picture of patients, 96. Indeed, rules of law do not have an independent life that play out in accordance with only the cognizant of their own desires or wishes, sheltered from all influences and pressures, who have will of the parliament that created them. They are part of the legal system, which, like any a completely free will and are masters of their choices despite oppressive suffering. In system, has its own dynamic determined by macro principles (hierarchy of standards, addition, it is abstractly believed that the request for euthanasia is a matter of purely personal principles of interpretation, principles of equality and non-discrimination, principles drawn from logic or common sense such as [TRANSLATION] "He who can do more can do less", etc.). It is legitimate to draw attention to real cases for which the law does not provide a satisfactory solution and to ask that the law be amended to achieve a desirable result for those cases. But we should ask at the outset whether the proposed approach will result in injecting a dynamic in the system that will have unforeseeable and unwanted effects.

V. FINAL CONSIDERATIONS

101. However, we are not obliged to adhere to the ideology of autonomy. The absolutization of autonomy does not do justice to the complexity of things and is based on questionable assumptions. The Act on euthanasia conveys an unreal and fictitious picture of patients, cognizant of their own desires or wishes, sheltered from all influences and pressures, who have a completely free will and are masters of their choices despite oppressive suffering. In addition, it is abstractly believed that the request for euthanasia is a matter of purely personal -24-

choice: [TRANSLATION] "the ultimate freedom," "my-choice-that-is-nobody-else's-business". It is more accurately a question of the impotence of a freedom that needs another person to die. The persons involved say they are the sole masters of their death, but other people experience it: the caregivers asked to end the life and their families who survive them.

102. Euthanasia (or assisted suicide) is not a private issue that involves only the person in question. It is always a public issue with an indisputable socio-legal-political dimension. There is a concern that fragile persons (gravely ill, the elderly, the disabled ...) are under pressure, conscious or unconscious, and, fearful of being a burden for their families and society, find themselves under a moral obligation to exercise their right to euthanasia. [TRANSLATION] "Today, dying with dignity ... is refusing to impose one's deterioration on others and a heavy and, unfortunately, useless burden on society", says writer Regine Deforges. 97 There is concern that the offer artificially creates the request and that society is increasingly quick to suggest euthanasia as the most humane solution, as the tolerance threshold for pain diminishes and the bonds of solidarity erode.

103. Unlike suicide, which does not involve the medical community and does not receive society's approval, euthanasia results in a substantial change to the missions entrusted to doctors and affects foundations of the rule of law and the social order. The concept and image of medicine are in play because once euthanasia is legalized all physicians are given the power to administer death, if only on request, which risks altering patients' trust in the medical community and causing tension within medical teams and families. The integration of euthanasia into end-of-life care—following the so-called "Belgian model of integral end-of-life care"98—is disastrous: in Belgium, persons who are at the end of their lives do not dare go to a palliative care unit and even fear the use of morphine, legitimately suggested to relieve their pain.

104. We must not delude ourselves: initially, euthanasia was presented as an ethical transgression, an exceptional act reserved for extreme cases; soon, by blurring the standard, euthanasia was normalized99: it became one medical procedure among others, then a right claimed by philosophical conviction. [TRANSLATION] "We are simply asking that our view be respected: we want to let people choose to stay in control of their body, their life, their death". m

105. However, society cannot yield to every individual request without endangering itself There are powerful social, psychological, legal and political reasons to resist the temptation to

97 See

105. However, society cannot yield to every individual request without endangering itself There are powerful social, psychological, legal and political reasons to resist the temptation to

97 See

include the euthanasia exception in the law ... it quickly becomes clear that it cannot be contained within the limits assigned at the outset. A society is not an aggregate of autonomies. Limits must of necessity be assigned to individual wishes if we want to build a community.

Prof. Etienne Montero Solemnly affirmed before me at province of This day

Commissioner for taking oaths

63 -25-

Prof. Etienne Montero Solemnly affirmed before me at province of This day

Commissioner for taking oaths