Euthanasia laws face constitutional challenge from top lawyer in aged care debate
A constitutional crisis looms over Australia's voluntary assisted dying laws amid a bid to allow faith-based aged care facilities in NSW the right to refuse euthanasia in their homes, with a leading silk warning the reform would be ‘invalid’.
The nation’s euthanasia laws are facing the prospect of a constitutional crisis, with a plan to allow religious aged care homes to reject voluntary assisted dying on their premises facing a challenge from one of Australia’s most prominent lawyers.
The Liberals have made a fresh bid to change Voluntary Assisted Dying laws in NSW that would give faith-based aged-care providers the right to choose whether patients can access euthanasia in their facilities, in line with Victoria, Tasmania and Western Australia.
But one of the country’s leading silks, Arthur Moses SC, has attempted to block the reform on the basis that it would be “constitutionally invalid”, reigniting a showdown over religious freedoms in the aged-care sector.
In advice filed to NSW parliament last week, Mr Moses and law professor Patrick Keyzer argued that NSW faith-based facilities cannot refuse patients’ right to receive euthanasia on their premises as this would go against federal law, which guarantees an individual’s right to have their “needs, goals and preferences for end-of-life care” met by aged-care services.
Liberal upper house MP Susan Carter, who introduced the amendment last week to NSW parliament, said the reform aimed to balance the rights of patients, their fellow residents and providers.
“There are facilities that are very concerned the active presence of VAD changes the community, as it has a massive impact on other people who have a value system that is troubled by euthanasia,” Ms Carter said.
“A lot of the opposition to the bill has focused on the person seeking euthanasia, but this amendment does not stop that.
“It is about honouring the different ways people want to live and the different ways people want to die, balancing the rights of the person seeking euthanasia with the rights of the people who are also in the home, and the rights of the facility to provide care that aligns with their values.”
Under the law change, faith-based providers would still be required to help patients access VAD by transporting them off-site to state and private facilities to attend consultations and appointments, akin to any other medical matter.
Religious freedoms expert Mark Fowler questioned why Mr Moses and Dr Keyzer had opposed the reform, given the law had been enshrined in other states.
He also argued the UN declaration on religious discrimination protects the right to run institutions in accordance with “the freedom of religion or belief”.
“Human rights have equal status and are indivisible. To that extent, Moses and Keyzer offer a one-sided analysis of Australia’s human rights obligations and fail to provide a holistic consideration of the relevant rights in play,” Dr Fowler said.
Prominent silk Georgia Wright raised similar concerns about whether the law could be overridden by commonwealth law or prosecuted in court, calling the opinion “very contestable”.
“It (appears) to me that a NSW law could validly permit faith-based institutions to transfer patients to other facilities for carrying out VAD without contravening any ‘obligation’ under commonwealth law,” Ms Wright said.
However, it is understood a successful bid to block the reform in NSW could trigger a review of whether the laws are currently invalid in other states.
The push to change VAD laws has sparked fierce resistance from health and legal circles, with 18 organisations recently signing a joint statement against the legislation.
Senior Services Rights, the Australian Royal College of General Practice NSW and the Australian Lawyers Alliance were among the signatories that claimed the bill would mean “dying people are forced to find alternative accommodation and care when they need support the most”.
The statement also cited Mr Moses and Dr Keyzer’s arguments, which will be debated in NSW parliament this week.
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