Religious discrimination in Australian health law: hype or reality?

Queensland has passed the Voluntary Assisted Dying Act 2021.

I’m disappointed in Queensland’s Parliament, not for passing assisted dying legislation, but for consciously trampling over the religious beliefs of Catholic and other religious healthcare organisations.

Catholic hospitals are right to be aggrieved.  It’s entirely predictable that church institutions are now considering civil disobedience. (See “Catholic Hospitals’ Revolt on Euthanasia” Weekend Australian 21-22 August 2021, p 4. See also here).

I mean, if you genuinely believe that intentional killing is wrong, you don’t just help it along because a bunch of politicians told you to, do you?

Catholic moral beliefs preclude intentional killing, yet Queensland’s law will force Catholic hospitals to open their doors and to facilitate actions to end the lives of patients in their care, on their premises, by non-credentialed doctors who do not share their moral values.

The passage of assisted dying laws in Victoria (2017), Western Australia (2019), Tasmania (2021), South Australia (2021), and now Queensland illustrates the growing heft of personal autonomy as a secular value in Australian life.

(I call this the “Dombrink thesis”, after American scholar Professor John Dombrink, who demonstrated the resilience of libertarianism, through – and despite – America’s culture wars.  See here, here, and here.)

Recent assisted dying laws follow on the heels of two decades of reform that have greatly liberalised abortion laws in every State and Territory; see eg here, here, and here.

But if personal autonomy means anything, it ought to extend to those who, despite these changes, have a sincere, morally-grounded opposition to killing and assisted suicide.

In my view, co-opting religious health care organisations to facilitate euthanasia is a step too far.

For further detail on what Queensland’s new law will force religious health care facilities to do, see below.

 

Sharing the love? The importance of singing in church in the middle of a pandemic

Let’s be clear: not all complaints of discrimination or oppression, by churches, in Australia’s largely tolerant democracy, are worthy.

For example, in a Facebook post on 2 July, Pastor Brian Houston of Hillsong fame dismissed Covid delta outbreak restrictions that prohibited singing in church as “religious discrimination…so archaic it’s hard to believe”.

He urged his followers: “Let’s make a stand”.

Judging by their responses, some of Houston’s followers are primed for persecution and reluctant to see themselves as beholden to earthly laws (that is, emergency public health orders).

On 16 June 2021, an outbreak of the insanely infectious delta variant of the Covid virus began in New South Wales.  Daily cases are currently averaging over 1200; see here.

On 20 June, masks became mandatory in “places of public worship, being used for public worship or religious services”, in 7 local government areas.

On 23 June, singing in non-residential premises – including places of worship – was banned. However, a number of exceptions applied, including singing in a performance or rehearsal, singing in educational institutions, singing for the purposes of instruction in singing, or if “the premises are a place of public worship, and the persons singing are members of a choir”.

On 26 June, the exception for choirs was eliminated.

In response to questions raised at a Religious Communities Forum held on 28 June, NSW Health advised forum members by email that the delta outbreak restrictions operating at that time (the Public Health (Covid-19 Temporary Movement and Gathering Restrictions) Order 2021, dated 26 June 2021) did, indeed, prevent singing in places of worship, even if a religious leader was singing to a largely empty church or place of worship as part of a livestream.  Masks must also be worn.

The intent of the restrictions, NSW Health advised, was to prevent transmission between, for example, a singing pastor, and people providing technical assistance during the livestream, given previous evidence of tansmission via singing in a place of worship.

NSW Liberal MP Tanya Davies raised Houston’s concern with Premier Gladys Berejiklian and Health Minister Brad Hazzard.  Hazzard granted an exemption on 3 July, with specified safeguards: see here.

I suspect that quiet diplomacy by Houston would have been equally effective, if the need for religious leaders to sing directly to camera outweighed the importance of protecting others present in the venue from the risk of acquiring the highly infectious delta variant.

I notice one comment on Pastor Houston’s post:

“It’s time people stopped seeing everything as an attack or discrimination. Seriously we are in a pandemic.  Christian leaders should be setting a good example”.

Amen to that. As to which, see here, and here.

 

Moral arm-twisting in Queensland’s voluntary assisted dying legislation

While some complaints of discrimination by religious leaders are over-blown, I would put Part 6 of Queensland’s Voluntary Assisted Dying Act in a different category.

The new Act respects the right of a health practitioner not to provide information about voluntary assisted dying, nor to participate in the assessment process for lawful access to assisted dying that the legislation makes available (s 84).

However, Part 6 co-opts health practitioners and forces them to facilitate that assessment process, irrespective of their personal beliefs about the ethics of killing.

Let’s count the ways.

Firstly, a health practitioner with a conscientious objection must either refer a patient requesting information on assisted dying to an officially approved “navigator service” for assisted dying, or to a health practitioner who is known not to have moral scruples about assisted dying and may be willing to assist (s 84(2)).

Secondly, a “relevant entity” (meaning a health care establishment such as a hospital, hospice or nursing home) must not hinder a person’s access to information about assisted dying.

In order not to do so, the health facility must provide entry to a registered health practitioner, or member or employee of an approved navigator service in order to “provide the requested information to the person about voluntary assisted dying” (ss 90, 156).

Thirdly, the new Act requires a health care facility operated by a church or religious organisation to provide access to an (external) medical practitioner who is willing to act as the patient’s “coordinating medical practitioner” for the purposes of facilitating assessment and taking the various actions required by the legislation in response to the patient’s first, second and final requests for assistance to die (ss 9, 92-93).

If the medical practitioner requested by the patient is unable to attend, the religious health care organisation must facilitate the transfer of the patient to and from a place where the patient can formally request assistance from a medical practitioner who is willing to act as the coordinating medical practitioner (ss 9, 92(3); 93(3)).

Fourthly, the religious health care facility must facilitate the coordinating medical practitioner (or their delegate) to carry out a “first assessment” of the patient’s eligibility for dying assistance under the Act, either by permitting this to occur within the facility, or by facilitating transfer of the person to and from a place where the assessment can take place (ss 9, 19, 94).

The same obligations apply to the second, independent “consulting assessment” that occurs if the coordinating medical practitioner concludes from the first assessment that the patient is eligible for voluntary assisted dying (ss 9-10, 30, 95).

After making a third and final request, and undergoing a final review, an eligible patient may decide to self-administer a voluntary assisted dying drug or, if advised that this is inappropriate, may choose to have the drug administered by the coordinating practitioner (ss 50, 56).

This step triggers a number of authorisations, including the right to prescribe, supply, possess and self-administer, or administer the drug overdose to the patient (ss 52-53).

Again, the legislation requires a religious health care facility to provide access to the coordinating practitioner so that the patient can choose how the drug will be delivered – whether within the facility, or by assisting transfer and travel to a place outside the facility where these decisions can be made (s 96).

The facility must then provide access to the administering practitioner and witnesses to enable assisted dying to take place on the premises, and must not hinder self-administration if the patient has made a self-administration decision (s 97).

These statutory requirements honour the voluntary assisted dying principle that “a person should be supported in making informed decisions about end of life choices” (s 5(f)), and that “access to voluntary assisted dying…should be available regardless of where a person lives in Queensland” (s 5(e)).

Another principle recognised in the legislation is that “a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected” (s 5(h)).

However, by forcing religious health care facilities to cooperate in processes whose central aim is intentional killing, (I am not here debating the rigour of safeguards) the legislation tramples over well-known and defended moral values that lie at the heart of professional, competent, yet religiously-informed health care.

The bottom line

Like abortion, assisted dying is one of the enduring ethical fault lines in medicine.

Politicians can’t legislate it away.

Part 6 of Queensland’s Act seems hell-bent on making victims of doctors and religious organisations that have long-standing, deeply felt moral objections to intentional killing.

There ought to be room in Australia’s liberal democracy for religious hospitals and hospices to offer their services, including high-quality palliative care, in accordance with long-standing ethical values, without putting euthanasia on the menu.

Patients who request assessment for assisted dying should be transferred to a facility where such actions do not offend long-standing institutional values, as provided in South Australia’s legislation, which recognises a right of conscientious objection for hospitals and other health care establishments (see s 11, although this does not extend to nursing homes).

The Covidsafe app: speed at the expense of transparency and accountability

Photo: Markus Winkler via Unsplash

Australia’s COVIDSafe app was launched by the Australian Government in April 2020. The app uses Bluetooth technology to record “contact events” or “digital handshakes” between app users, which are stored on users’ phones for 21 days. Contact events include the encrypted ID of the other contact user, the Bluetooth signal strength during the event, and its duration and time (but not location data). If a user tests positive, this information is uploaded to the National COVIDSafe Data Store (a cloud-based data repository supported by Amazon Web Services and administered by the Digital Transformation Agency), where it can be decrypted for use by state contact tracers.

The app has been hampered by concerns about its security, privacy, and effectiveness. Amendments to the federal Privacy Act (1987) created a legislative framework for protecting the privacy of app data and preventing ‘function creep’, i.e., the risk of data being used for purposes other than contact tracing, such as law enforcement. This framework follows the same format as other privacy laws in Australia (such as legislation that applies to the MyHealth Record System), setting out a series of permitted uses, collections, and disclosures of app data related to contact tracing and maintaining the data store and the app. All other collections, uses, or discloses are prohibited, as is uploading app data from a user’s device to the data store without their consent, retaining or disclosing data to someone outside Australia (unless for contact tracing purposes), and decrypting app data on a user’s device.

Crucially, the legislation protects voluntary use, for example, by making it an offence to require someone to download or use the app, or to refuse to provide them with goods or services because they’re not using it. The legislation also creates a mechanism for dismantling the system when it is no longer needed, and for deleting the information contained in the data store.

The basic legislative privacy protections on the app are sound, although commentators have identified some ways in which they could be strengthened, for example, by providing for the periodic removal of contact event data from the data store.

Where the system really falls down is in the design and operation of the app itself. This invokes the concept of privacy by design, i.e., building privacy protections into the physical design, architecture, and computer code of the device or system concerned. Privacy in the digital realm can be protected through multiple channels, including contractual mechanisms, legislation, and design-based solutions. The physical design of the system or device is at least as important – if not more so – than any legal frameworks that apply. This is often referred to as “code” or “architecture”-based regulation, and it’s interesting to consider whether or how the privacy and transparency concerns raised below could also be addressed through legislation.

Privacy advocates and tech experts have extensively canvassed the security and privacy flaws in the app, as well as technical problems that prevent it from operating effectively. This report, by a group of software developer and cybersecurity experts, provides a comprehensive and readable summary. Some of the early bugs included “phone model and name being constantly exposed and unique identifiers being available to track over time… undetectable, permanent long-term tracking of iOS and Android devices and attackers being able to control devices remotely” (p.7). The authors point out that many of the app’s technical challenges stem from the use of Bluetooth for a function it wasn’t originally intended for, i.e., continually and indefinitely scanning the environment for other devices, and then making connections with them.  

They also say that some of the technical issues with the app resulted from a lack of consultation with tech experts (and the wider community) during its development, as well as a lack of testing and verification.

Also concerning has been the DTA’s slow response to concerns raised by the tech community once the app was launched, as well as limited transparency in the scheme’s operation. This includes the DTA’s failure to release the number of active users, and the Government’s reluctance to release the full version of an independent report on the app’s operation, which found that the app imposed significant time costs on contact tracers for no little additional benefit. Some of this information was omitted in a shorter version of the report originally made publicly available.

The Government has taken steps to address some of the bugs in the app, including through the adoption of the “Herald” protocol in December 2020, although the authors of the report mentioned above say this protocol still has problems, and in fact reintroduced some issues that had been fixed previously. They call for the Government to adopt the Exposure Notification Framework developed by Apple and Google, which doesn’t create the same privacy and security challenges as the Covidsafe app.

There have also been developments in the responsiveness and transparency of the scheme. For example, the DTA has identified a contact point for security concerns, and in April 2020, it made publicly available the full source code for the app, which is hosted on a Github repository. But, according to researcher Emma Blomkamp, the early lack of community engagement was a missed opportunity to build public acceptability of the app or a ‘social licence to operate’ (particularly among Australia’s diverse communities) and to inform the public about the app’s operation and the privacy protections that would apply.

Trust in government is crucial to an effective response to the COVID-19 pandemic. By now, we all know that governments possess highly coercive powers for responding to public health emergencies. But to a significant extent, governments must rely on people voluntarily doing the right thing, including downloading the Covidsafe app and sharing their personal information with contact tracers. That’s much more likely to happen when people trust the government, and that trust is much more likely when there’s a transparent and accountable system in place, combined with rigorous privacy protections, both “code” and law based.

This is an area where a fast rollout shouldn’t have come at the expense of a responsive, transparent, or accountable one.