New South Wales' Voluntary Assisted Dying Act (2022) No. 17
Impact on freedom of conscience for health care practitioners and institutions
Institutional freedom of conscience
III.1 The concept of institutional freedom of conscience or religion has been examined and challenged repeatedly since at least the early 1970's. Claims that facilities like hospitals and hospices cannot rely on constitutional guarantees of freedom of conscience because they are not individuals are untenable because they are contradicted by legal history and widespread practice. At best, they provide superficial camouflage for efforts to compel unwilling institutions to provide morally contested services favoured by the claimants, or anti-religious discrimination, or both.43
III.2 The Act is is concerned with two kinds of institutions: "residential facilities" like nursing homes, hostels, group homes, etc. operated by "relevant entities" (excluding individuals), and "health care establishments" like hospitals or hospices operated by "health care entities" (including individuals) [see I.60-I.64]. In this review (not in the Act), "governing entity" refers to the entity operating a facility, whether a health care or relevant entity. Regardless of structure, an “institution” in the sense relevant here always manifests a collective enterprise by individuals, so the term “entity/collective” is used in this Part to keep this in mind.
III.3 The Act admits the possibility of conscientious objection by individuals [§9] —] — but not by entities/collectives [§89-90, §99]. It addresses only the obligations of entities/collectives that do not participate in euthanasia or assisted suicide — for any reason.
III.4 It is likely that one of the reasons underlying this strategy was a desire to avoid even implicitly acknowledging an institutional right to refuse to participate in euthanasia and assisted suicide for reasons of conscience. Consistent with this, the Act's statement of underlying principles acknowledges the need to respect individuals' culture, religion, beliefs, values and personal characteristics, but — not those of entities/collectives [§4].
III.5 Thus, while the Act explicitly states that entities/collectives can refuse to participate in euthanasia and assisted suicide [§89-90, §99], it places refusals based on moral/ethical
objections to killing people on the same level as refusals based on pragmatic considerations like lack of trained personnel. Its message is that guarantees of freedom of conscience or religion are irrelevant to decision-making by entities/collectives about involvement in killing people, and, if entities/collectives defend refusals on that basis, the Act puts them at a disadvantage.
III.6 Contrary to the position taken by the Act, this paper presumes that entities/collectives are entitled to rely upon constitutional guarantees of freedom of conscience, notwithstanding differences between individuals and collectives in the exercise of that freedom. Individuals and entities/collectives are equally concerned to avoid complicity in perceived wrongdoing. This obviously includes taking part directly in what they deem to be a wrongful act, but also causally contributing to by collaboration or contingent cooperation. However, factors relevant to moral decision-making by entities/collectives are not necessarily identical to those affecting the exercise of freedom of conscience by individuals, nor do they play out in the same way. The concept of individual freedom of conscience is applied analogically to collectives, so some differences are to be expected.44
III.7 The focus here is the effect of the Act upon institutions in New South Wales that refuse to provide or facilitate euthanasia/assisted suicide (EAS) for reasons of conscience. It is specific to the exercise of preservative freedom of conscience.45,46 The policy of such institutions typically reflects desire to preserve institutional moral integrity by refusing to be complicit in, cooperate in or otherwise support or encourage the killing of patients and a desire to prevent harm to others. Institutional religious integrity is not addressed in this review.
Participation, collaboration and cooperation
III.8 The Act does not require entities/collectives to provide euthanasia or assisted or even (apparently) to provide information about the procedures [see I.65], so it does not threaten institutional freedom of conscience in relation to direct participation in EAS services.
III.9 However, objecting individuals and entities/collectives also want to avoid contributing to EAS in morally significant ways: ordering, recommending or encouraging it and other forms of collaboration or facilitation, such as helping patients connect with someone willing to kill them or help them kill themselves. Beyond collaborative conduct entailing complicity, individuals and entities/collectives also wish to avoid forms of cooperation that they may consider morally wrong in certain circumstances [“contingent cooperation”].47
III.10 The problem of contingent cooperation is especially troublesome
for institutions if one of their patients wants EAS.48 Providing advance notice of institutional policies is an important strategy for avoiding conflicts with patients and difficulties associated with contingent cooperation. Hence, the Act’s requirement that entities/collectives provide such notice furthers the accommodation of both patients who may want EAS services and entities/collectives unwilling to provide them [I.66].
III.11 Ideally, people who may want EAS services will avoid facilities operated by entities/collectives unwilling to provide or facilitate them. However, this may not always work out in practice, so the Act has been designed to enable the state to compel unwilling entities/collectives to at least cooperate in euthanasia and assisted suicide for people in their care.
III.12 Obligations to cooperate imposed on objecting entities/collectives by the Act arise only if patients notify institutional staff or representatives that they want EAS information, want to make EAS requests, have EAS assessments, etc. Requests directed to non-institutional staff would not create institutional obligations. This is reasonable, since only entities/collectives aware of a request could be expected to act on an obligation, and they can become aware of requests only through their employees or representatives. But it also means that patients and practitioners cannot proceed with EAS in an objecting institution unless they notify insititutional authorities at each stage in the EAS process [§90, §92(1),§99, §101(1)].
III.13 The Act requires two kinds of cooperation; enabling access to information about EAS and facilitating access to EAS services. The extent of cooperation demanded in relation to EAS services (requests, assessments, provision of euthanasia/assisted suicide) is sometimes related to the legal occupancy status of the person in care.
Legal occupancy status
III.14 The Act groups EAS candidates into two classes based on legal occupancy status: those who are “permanent residents” and those who are not. It implies that those residing temporarily in health care establishments (like hospitals or hospices) are not permanent residents; it assumes that occupants of residential facilities may or may not be permanent residents. Those who are not “permanent residents” are identified here (not in the Act) as “institutional occupants.”49
III.15 For present purposes it is assumed that, apart from the Act, permanent residents have legal status analogous to residential tenants in relation to the institutional space they occupy, but institutional occupants do not.50 It is further assumed that an entity/collective may not be able to include a no-EAS-on-premises condition in a permanent residency agreement, but can include such a condition in institutional occupancy agreements.51
III.16 To the extent this is correct, permanent residents in residential facilities would seem to be free to have visitors come and go as they choose, to communicate privately with visitors, and to do as they wish inside the premises they occupy, even if the premises is part of a larger facility. Owners and managers of a facility have no authority to manage or interfere in permanent residents’ affairs without their consent, except to the extent necessary to protect the entity/collective’s legitimate interests (including freedom of conscience), other residents and facility staff. Assuming these further inferences are correct, it is obvious that permanent residents would be able to arrange for and obtain EAS services in their own premises, notwithstanding opposition by owners of the facility, even if the Act did not address the issue. This would not be true of institutional occupants in either residential facilities or health care establishments.
III.17 The facilities to which the Act pertains encompass a broad range of designs and living arrangements. A permanent resident may have a self-contained private apartment or merely a small private room and bathroom (much like a private hospital room). Institutional occupants are more likely to share a room with one or more others, separated from them only by curtains. However, this may also be true of permanent residents in residential facilities.
III.18 It is obvious that, from the perspective of an entity/collective, facility staff and other occupants, the provision of EAS services in a private apartment would be radically different from providing them behind a curtain in a room shared with others, but the Act does not distinguish between the two situations. Fortunately, nothing in the Act prevents entities/collectives from imposing conditions on EAS-related activities that they are required to permit in order to protect other patients,52 staff53 and institutional moral integrity. For example: a nursing home that is unable to prevent EAS in a resident’s room may refuse to take custody of EAS drugs, refuse to allow celebrations associated with anticipated EAS elsewhere in the
facility, prohibit employees from participating in or supporting the procedure, and limit the provision of EAS to times when other residents are likely to be absent or sleeping.
Access to information
III.19 The Act imposes an institutional obligation to provide access to EAS information for all institutional occupants, regardless of legal occupancy status. However, the obligation arises only if a patient receiving treatment or care in a facility asks institutional staff or representatives about euthanasia or assisted suicide [I.67]. It does not apply when patients seek information from non-institutional medical or health care practitioners visiting the facility.
III.20 Independent practitioners are governed by professional regulations and other provisions in the Act [I.11-I.15]. If asked, they would be expected to provide information necessary to enable informed medical decision making. It is likely that most information sought by most patients would be provided in this way.
III.21 Were a patient to ask institutional staff for EAS information, the Act requires entities/colllectives to permit and enable the patient to obtain information about the services regardless of their legal occupancy status [I.67]. Objecting entities/collectives, like individual practitioners, may well be willing to provide patients with information necessary to enable them to make an informed decision about euthanasia and assisted suicide, as long as they can avoid doing so in a manner that causally connects them to killing their patients or makes it appear that they support or recommend the procedures [III.8–III.13].
III.22 To conform to the Act, objecting entities/collectives could require that all patient enquiries about EAS received by institutional employees be directed to staff members trained to provide patients with information necessary to enable informed decision-making without compromising institutional moral integrity. The policy could also require that discussion and communication of information take place in private, and could operate seamlessly with responses to first requests for EAS [III.28-III.31]. Note that an objecting entity/collective that provides EAS information in this way is not required by the Act to admit anyone else for the purpose of providing information [I.67].
III.23 However, a patient may ask for specific information that an entity/collective is unwilling to provide even through a designated employee, such as the name and contact information for an EAS practitioner or EAS enabling service like VADCNN [I.59].54 Here the text of the Act is critical. It specifies that an entity/collective must allow a medical practitioner or a member of VADCNN reasonable access to the patient to provide “the information that has been requested” (§90(1)c and (2)b, emphasis added). It does not, however, require an objecting entity/collective to arrange for this: only that it not obstruct arrangements made by the patient. Like individual practitioners, objecting entities/collectives could comply with the Act by directing patients seeking EAS
practitioner contact information to a service able to facilitate contact with practitioners or health services generally (like NSW Health)55 and not obstructing the arrangements subsequently made by a patient or patient’s representative to connect with someone willing to provide the information, including VADCNN.
III.24 In sum, the cooperation required of objecting health care establishments and residential facilities by the Act in relation to providing information about EAS does not appear to undermine institutional freedom of conscience.
Access to euthanasia and assisted suicide
III.25 The Act requires three requests (one witnessed), two assessments by different practitioners (and possibly assessments by determiners), and an administration decision before EAS is actually provided. From start to finish, New South Wale’s EAS process involves at least seven steps, and each has to take place somewhere. Had the Act been designed to accommodate institutional freedom of conscience, objecting entities/collectives seeking to avoid moral entanglement in the process would have had three options (subject to the legal occupancy status of a patient): permanent transfer of patients seeking EAS, temporary transfers for some or all of the steps in the process, and no transfer: i.e., allowing the full EAS process to take place in a facility, but without support or participation by facility staff.56
III.26 However, the Act effectively denies institutional freedom of conscience. It imposes a number of constraints and requirements on objecting entities/collectives specifically to compel their cooperation and even collaboration, some of which go beyond legal constraints arising from legal occupancy status.
Requests for EAS
First and final requests
III.27 The Act requires that a first request for euthanasia/assisted suicide be accepted or refused by a medical practitioner. Refusal does not prevent EAS because a patient remains free ask other medical practitioners to accept the request. This arrangement underpins the provisions protecting practitioner freedom of conscience [II.17-II.19] and could have been applied to protect institutional freedom of conscience, but the Act does not do this.
III.28 The Act contemplates a patient's requests only in relation to the EAS delivery process, not within the context of caring for patients. In reality, patients can request euthanasia/assisted suicide at any time, even where the procedures are illegal. For example, palliative care patients experiencing grave pain and suffering sometimes ask for EAS. Experienced palliative care practitioners consider this an expression of anguish and respond by attempting to identify and ameliorate the source of distress rather than by simply ignoring the request or shutting down the conversation. It is highly unlikely that objecting entity/institutions would be interested in suppressing this kind of request or patient-practitioner exploration, as it can lead to remediation of patients' distress and relieves them of inclinations toward euthanasia.
III.29 This kind of dialogue remains possible notwithstanding the Act's limited functional interest because it requires a patient request to be "clear and unambiguous" [§19(2)a] and also requires practitioners to discuss alternatives [§10(2)]. Only if a practitioner concludes that a request is clear and unambiguous (which must surely imply an understanding of alternatives) do the obligations imposed by the Act in relation to a first request become relevant. That conclusion need not be reached the same day the patient initiates the discussion.
III.30 Objecting health care establishments and residential facilities would naturally instruct their medical staff to refuse a first request that is found to be "clear and unambiguous." They could instruct them to comply with the Act by (i) informing the patient that other health practitioners or health service providers may be able to assist them, (ii) providing information about services (like NSW Health) that can connect them with EAS services, and (iii) recording in the patient's medical record the refusal and information provided to the patient [§22]. They could also require that such consultations with patients must occur in private. It appears that the credentialing process could be used to ensure that non-institutional
medical practitioners conform to these policies.
III.31 By exploring, documenting and refusing first requests and providing information that enables patients to seek EAS elsewhere it would be possible for objecting health care establishments and residential facilities (like individual practitioners) to respond compassionately to patients and manage first requests without compromising institutional moral integrity. What happens next would be up to the patient. A patient could arrange to consult with an EAS-qualified medical practitioner willing to accept a request and begin the EAS process by assessing his eligibility.
III.32 No issue would arise if the Act were to state only that an entity/collective must not obstruct patients who make such arrangements. However, it does more. It requires objecting institutions (both health care establishments and residential facilities) to cooperate by letting EAS practitioners accept first and final requests in their facilities [§92(2)]. Accepting requests (i.e., agreeing to act upon them), especially final requests, is more directly supportive of and causally related to euthanasia and assisted suicide than merely receiving and responding to requests. It is thus more significant in moral evaluation of collaboration and contingent cooperation and more likely to be problematic for objecting entities/collectives. This is ignored by the Act.
III.33 Further, when an EAS practitioner cannot attend, objecting entities/collectives must "take reasonable steps to facilitate the transfer" of the patient to a location where first and final requests can be accepted [§92(3)]. It is not clear if this is means that the entity/collective must initiate the transfer rather than merely cooperate in a transfer arranged by the patient or others. If the former, it is arguably a demand for active collaboration rather than passive cooperation that may be unacceptable to some objecting entities/collectives.
Declarations, EAS assessments, administration decisions, and administration of lethal substance
Objecting health care establishments
III.34 Objecting hospitals, hospices and other health care establishments “must take reasonable steps to facilitate" patient transfers to and from a place where the EAS process can take place. This includes all requests [§101(2)] assessments [§102(2),§103(2)], declarations [§104(2)], administration decisions [§105(2)] and actual provision of euthanasia/assisted suicide [§106(2)]. Again, it is unclear if objecting
entities/collectives must initiate the transfer rather than merely cooperate in a transfer arranged by the patient or others. If the former, it is arguably a demand for active collaboration rather than passive cooperation that may be unacceptable to some objecting entities/collectives.
III.35 In addition, the Act requires governing entities to consider whether or not a transfer would likely cause “serious harm” to the EAS candidate, adversely affect access to euthanasia/assisted suicide (eg, through loss of capacity), cause “undue delay and prolonged suffering”, and whether the transfer location can receive the person. Possible financial loss or costs incurred by the candidate must also be considered [§102(3), §103(3),
§104(3) §105(3), §106(3)]. Patients cannot dictate transfer decisions; they are the sole responsiblity of the governing entity. However, these provisions in the Act exposes objecting entities/collectives that transfer patients to legal challenges and litigation.
Objecting residential facilities
III.36 Permanent residents: Objecting nursing homes, assisted living facilities and other residential facilties must allow all permanent residents to have all EAS services in their facilities, including all requests, declarations, assessments, consultations administration decisions and the provision of euthanasia/assisted suicide [§93(2)a, §94(2)a, §95(2)a, §96(2)a, §97(2)a]. This is unlikely to result in a conflict if the resident has a self-contained suite similar to an apartment, but may well be
problematic when the resident shares accommodation with other residents.
III.37 Institutional occupants: Objecting nursing homes, assisted living facilities and other residential facilties “must take reasonable steps to facilitate the transfer" of institutional occupants who are not permanent residents to and from a place” where the services can be provided [§93(3)a, §94(3)a, §95(3)a, §96(3)a, §97(3)a]. However, if such a transfer “would not be reasonable in the circumstances,” the entity must allow a medical practitioner “reasonable access” to provide the services at the facility.
Moreover, a decision to transfer a patient can be vetoed by the coordinating EAS practitioner or a medical practitioner nominated by the patient [§93(3)b, §94(3)b, §95(3)b, §96(3)b,
III.38 The Act appears to leave objecting entities/collectives with a choice between two potentially objectionable alternatives. If transfers must be initiated by objecting entities/collectives, some may object on the grounds that initiating rather than merely cooperating in a transfer demands active collaboration rather than passive cooperation. On the other hand, they may find allowing EAS services in the facility also ethically unacceptable.
III.39 It is doubtful the New South Wales legislators would find it difficult to understand why entities/collectives might refuse to allow their facilities to be used to enable eugenic sterilization of people described as "human wreckage,"57 "degenerates"58 and "defectives."59 The would likely concede that it is reasonable, prudent and consistent with the best traditions of liberal democracy to honour collective refusal to cooperate or collaborate in such practices, notwithstanding popular opinion and the views of prominent establishment influencers. In contrast, their Act reflects the view that it can be unreasonable to refuse to allow
homicide or suicide in one's premises, and that dissent from this position should not be tolerated.
III.40 One might argue that the Act simply extends rights and freedoms associated with residential tenancy: that residential facilities are the homes of people in care, and that objecting entities/collectives, like landlords, should not be able to prevent them from having euthanasia/assisted suicide in their own homes.60 However, landlords are not required to help tenants travel to see EAS practitioners who are unable to make home visits, so the analogy does not support an expectation that objecting entities/collectives must actively facilitate patient transfer to obtain the services elsewhere.
Practitioner credentialing (privileges: scope of practice)
III.41 Medical practitioners who visit health care establishments in New South Wales are expected to have their scope of practice (also known as credentials/privileges) specified in written service contracts.61 In 2002 the Ministry of Health stated that "adequate formal appointment and credentialling processes" was mandatory;62 this is presumed though not stated in updated guidance63 and a current policy directive.64 Residential care facilities are not part of the NSW public health system, but national legislation requires them to ensure that their employees are “competent” and have “qualifications and knowledge to effectively perform their roles.”65 This provides a legal mandate for residential care credentialing.
III.42 Since the Act requires EAS practitioners to have special training [I.10] one would expect EAS to be specifically identified when an entity/collective that is willing to provide the services recognizes practitioners’ credentials and defines their scope of practice. On the other hand, one would expect objecting entities/collectives to refuse to include EAS in granting credentials because that would explicitly affirm the acceptability of euthanasia/assisted suicide and authorize the procedures, blatantly contradicting their moral commitments.
III.43 The Act is silent about credentialing, but it demands that entities/collectives allow qualified practitioners to provide EAS services to patients in their facilities. This poses a dilemma for objectors.
i) They could refuse to grant credentials that permit EAS, and refuse to allow uncredentialled practitioners access to their facilities. However, this would leave objecting entities/collectives liable to legal action for non-compliance with the Act. Further, EAS practitioners may surreptitiously circumvent the prohibition, which, given the requirements of the Act, would leave the entities/collectives without legal recourse, and may have other adverse affects.66
ii) They could grant other privileges to non-facility EAS practitioners, and then tolerate their provision of EAS services if they abide by restrictions imposed [III.18]. However, allowing practitioners to provide services not permitted by institutional credentials may give rise to legal liability. Moreover, it would require entities/collectives absolutely opposed to euthanasia/assisted suicide to make a policy explaining how euthanasia/assisted suicide should be provided in their facilities: an absurd or at least hopelessly convoluted approach.
iii) They could grant credentials explicitly authorizing EAS, making clear their opposition to the procedures and setting out conditions and restrictions on provision of the service in order to protect other patients, staff and mitigate harm to institutional moral integrity. This may be the only way to ensure that restrictions can be enforced.
III.44 Driving objecting entities/collectives into a trap from which they can only escape by explicitly authorizing something they find morally abhorrent is a
clever but ugly example of coerced expression, but consistent with the bias previously noted [III.40].
III.45 Factors relevant to moral decision-making by entities/collectives are not necessarily identical to those concerning individuals, and the concept of individual freedom of conscience is applied analogically to collectives, so some differences are to be expected. This paper presumes that entities/collectives are entitled to rely upon constitutional guarantees of freedom of conscience, notwithstanding differences between individuals and collectives in the exercise of that freedom. Individuals and entities/collectives are equally concerned to avoid complicity in perceived wrongdoing. This obviously includes taking part directly in what they deem to be a wrongful act, but also causally contributing to by collaboration or contingent cooperation.
III.46 The Act does not admit the possibility of conscientious objection by entities/collectives. Consistent with this, the Act acknowledges the need to respect individuals' culture, religion, beliefs, values and personal characteristics, but not those of entities/collectives. It imposes a number of constraints and requirements on objecting entities/collectives specifically to compel their cooperation and even collaboration, some of which go beyond legal constraints arising from legal occupancy status. Refusal to participate in or facilitate killing people for moral reasons is placed on the same level as refusals based on pragmatic considerations like lack of trained personnel or management of institutional branding. The Act thus implies that guarantees of freedom of conscience or religion are irrelevant to decision-making by entities/collectives about involvement in killing people, and, if they defend refusals on that basis, the Act puts them at a disadvantage.
III.47 The Act is is concerned with two kinds of institutions: "residential facilities" like nursing homes, hostels, group homes, etc. operated by "relevant entities" (excluding individuals), and "health care establishments" like hospitals or hospices operated by "health care entities" (including individuals). In applying the Act one can distinguish between health care establishments and residential facilties. Regardless of structure, an “institution” in the sense relevant here always manifests a collective enterprise by individuals, so the term “entity/collective” is used here to keep this in mind.
III.48 The Act does not require entities/collectives to provide euthanasia or assisted or even to provide information about the procedures, so it does not threaten institutional freedom of conscience in relation to direct participation in EAS services. Instead, the Act is designed to enable the state to compel unwilling entities/collectives to cooperate and perhaps collaborate in killing people in their care or helping them kill themselves, and to disadvantage any that resist by appeals to freedom of conscience.
III.49 However, patients and practitioners cannot proceed with EAS in an objecting institution unless they notify insititutional authorities at each stage in the EAS process. This is fortunate, because providing EAS services in a private apartment in a residential facility would be radically different from providing them behind a curtain in a room shared with others, and the Act does not distinguish between the two situations. Nothing in the Act prevents objecting entities/collectives from imposing conditions on EAS-related activities that they are required to permit once they have been notified.
III.50 Objecting entities/collectives must allow all institutional occupants access to EAS information. They could direct all patient enquiries about EAS to staff members trained to provide patients with information necessary to enable informed decision-making without compromising institutional moral integrity. Hence, the cooperation required in providing information about EAS does not appear to undermine institutional freedom of conscience.
The Act leaves room for objecting entities/collectives to direct staff to fully and compassionately explore and document first requests, refuse those found to be clear and unambiguous, and provide information enabling patients to seek EAS elsewhere. They can thus comply with a number of the Act's provisions without compromising institutional moral integrity. However, the Act also requires objecting entities/collectives to allow EAS practitioners to accept first and final requests from anyone in their health care establishments and residential facilities. Accepting requests (i.e., agreeing to act upon them), especially final requests, is more directly supportive of and causally related to euthanasia and assisted suicide than merely receiving and responding to reqests, and thus
more likely to be problematic for objecting entities/collectives.
III.52 Moreover, the Act demands that objecting entities/collectives allow EAS practitioners to provide all EAS assessments, consultations and euthanasia/assisted suicide for permanent residents in residential facilities. Contingent cooperation of this kind is likely to be problematic, especially in relation to patients who share rooms with others. If EAS practitioners cannot attend, objecting entities/collectives must "take reasonable steps to facilitate the transfer" EAS candidates to a location where they can receive EAS services, including lethal injection. This suggests that active collaboration might be expected, and it goes well beyond merely granting the equivalent of a residential tenancy right to service delivery at home. Landlords are not forced to help tenants travel to see EAS practitioners who can't make home visits.
III.53 Objecting entities/collectives may refuse to allow the EAS process for institutional occupants in health care establishments and residential facilities only if, once more, they "take reasonable steps to facilitate" transfers to enable the procedures elsewhere. If that means initiating rather than simply cooperating in a transfer requested by others, the purported compromise may amount to a choice between two objectionable alternatives. In addition, the Act allows legal action against objecting entities/collectives that require transfers from their health care establishments for EAS procedures (including euthanasia and assisted suicide) if transfer “would not be reasonable in the circumstances.” It also enables patients and EAS practitioners to veto transfers of institutional occupants from residential facilities, thus forcing objecting entities/collectives to cooperate.
III.54 The Act's demands that qualified practitioners be allowed to provide EAS services to patients in facilities poses a dilemma for objecting entities/collectives in granting credentials. Granting credentials for EAS would explicitly affirm the acceptability of euthanasia/assisted suicide and authorize the procedures, thus contradicting their moral commitments. However, granting credentials may be necessary to avoid legal liability, and it may be the only way for objecting entities/collectives to impose enforceable conditions and restrictions on provision of the service in order to protect other patients, staff and mitigate harm to institutional moral integrity.
III.55 The provisions of the Act suggest that NSW legislators not only believe that it is morally acceptable to kill patients or help them kill themselves in accordance with their law, but are unable to imagine or unwilling to concede that others could reasonably and collectively hold and live in accordance with the contrary view, and should be entitled to do so in a democratic state. This demonstrates a lack of moral imagination or unreflective and entrenched authoritarianism inconsistent with the best traditions of liberal democracy.
43. Sean Murphy, “Institutional freedom of conscience in relation to euthanasia and assisted suicide” (14 May, 2022) Protection of Conscience Project (website) [Murphy 2022] at para I.9-I.12
44. Ibid at para I.13-I.14.
45. Introduced in Sean Murphy & Stephen Genuis, Freedom of Conscience in Healthcare: Distinctions and Limits” (2013) 10(3) J Bioethical Inquiry 347 [Murphy & Genuis].
46. Discussed and applied in Sean Murphy et al, The Declaration of Geneva: Conscience, Dignity and Good Medical Practice” (2020) 66(4) World Med J 41 [Murphy et al].
47. Murphy 2022, supra note 43 at para II.5.
48. Ibid at para II.6-II.9.
49. Ibid at para V.1-V.9.
50. The assumption is consistent with the differential treatment of permanent residents and institutional occupants by the Act.
51. The assumption is consistent with the Act’s requirement that an objecting entity/collective give advance notice of such limitations.
52. YouTube, “Allow Me to Die: Euthanasia in Belgium” (15 September, 2015) at 00h:40m:00s to 00h:43m:30s.
53. “Nurse diagnosed with PTSD after interaction with patient seeking euthanasia: Tribunal rules ‘her own convictions’ caused her injury. Denies claim for compensation” (10 October, 2017), Protection of Conscience Project (website).
54. Not all objecting entities/collectives would exclude VADCNN as a source of information: QLRC 2021, supra note 32 at para 15.233.
55. NSW Government, "Public" , NSW Health (website) [NSW Health].
56. Murphy 2022, supra note 43 at para V.10–V.16.
57. Emily Murphy, "Sterilization of the Insane." The Vancouver Sun (3 September 1932), Wayback Machine (website).
58. Richard Cairney,“Democracy was never intended for degenerates”: Alberta’s flirtation with eugenics comes back to haunt it" (1996) 155(6) CMAJ 789 at 791.
59. Marie Stopes, Roman Catholic Methods of Birth Control (London: Peter Davies, 1933) at 197-215.
60. For example, QLRC 2021, supra note 6 at para 15.174.
61. Health Services Act (NSW) at Chapter 8.
62. NSW Ministry of Health Statewide Services Development Branch,"Guide to the Role Delination of Health Services, 3rd ed" (July, 2002), NSW Government (website) at i.
63. NSW Ministry of Health Strategic Reform and Planning Branch, "Guide to the Role Delineation of Health Services, 5th ed" (December, 2021), NSW Government (website).
64. NSW Ministry of Health, "Policy Directive: Visiting Practitioner Appointments in the NSW Public Health System" (16 Nov 2016) NSW Government (website).
65. Aged Care Quality Standards, Standard 7(3)c (27 May 2022), Aged Care and Quality Safety Commission (website).
66. Kelly Grant, "Vancouver doctor cleared of wrongdoing in probe into assisted death at Orthodox Jewish nursing home", The Globe and Mail (7 August, 2019).