Changing your mind

Derryn Hinch held strong opinions on capital punishment and organ donation, but after some research, he’s changed his mind.

I was publicly opposed to capital punishment for decades. Knew and espoused all the arguments against it. From the “Timothy Evans was innocent” campaign in England through to wrongly convicted “killers” being released in the United States.

Then I read the autopsy report on the savage rape and murder of Anita Cobby and started thinking that the Murphy Brothers and Travers and Murdoch had forfeited their right to keep living in any civilised society.

I didn’t announce a change in my opinion for about three years. I just stopped arguing against it.

Now, I support capital punishment for terrorists and cop killers and the Adrian Bayleys and Martin Bryants of this world, as long as there are safeguards against an innocent man being executed. Not only “Not Guilty beyond reasonable doubt” but beyond any doubt. And we now have sophisticated DNA identification to ensure that.

It’s come up again since I announced the formation of The Justice Party. As I wrote on that website recently:

People have asked: ‘Is support of the death penalty part of your party policy?’ I personally now support capital punishment for certain crimes. But the blunt truth is recent Liberal and Labor governments have amended federal law to such an extent that it will not be reinstated in this country in the next 20 years. If ever. Even if 70% of people support it for some crimes.

But this editorial is not about the death penalty. It’s about why and how people can change their minds on major issues. I was against gay marriage. Trotted out all the old arguments. Marriage is sacred. It’s between a man and a woman.

I changed my mind about five years ago, swayed partly by the views of two heterosexual ex-wives, but mainly because I finally found myself listening to myself and realising that my arguments against same-sex unions were really no argument at all. Unsubstantiated, mythological rubbish.

I started to feel like Chicken Little as same sex couples I knew were having families and the sky wasn’t falling in.

Which leads me to organ donations. (This piece really is covering the waterfront).

I have long been an advocate of the Opt-Out system as opposed to the Opt-In system currently used in Australia. It cost me my honorary position as an ambassador for DonateLife. They support Opt-In.

Crudely, Opt-Out means that everybody in the country would automatically be a possible organ donor on their death unless they had specifically “opted out.”

Opt-outers wouldn’t have to give a reason why they wouldn’t participate. Not have to declare that it was for religious or ethnic or cultural reasons. Just say, “No,” as it should be.

The unspoken weakness there was that if you just hadn’t got around to filling in the forms disqualifying yourself, or were unaware of it (as many older Australians might not be) the government would just take your organs.

Critics would, and do, see that as official body snatching. And it is a fair argument. You could be crass and say the government gets enough out of you through taxes and levies while you are alive so why should they get first dibs on you when you are dead.

Chris Thomas, the CEO of Transplant Australia (which supports the current Opt-In system) says, “Governments acquiring organs because of a person’s failure to think about their own mortality does not sit well for those who believe we live in a society where personal autonomy is paramount.”

My interest in all this is extremely personal. Just over 1,600 days ago I was the beneficiary of a life-saving foreign organ with a liver donated by the family of a 27-year-old suicide victim, Heath Gardner.

I wrote about it in my book, A Human Deadline: A story of Life, Death, Hope and House Arrest, devoting a whole chapter to the Opt-Out, Opt-In debate. As I wrote in that book:

It is a touchy subject. In 2008 Matthew Thomas and Michael Klapdor from the Federal Government’s Social Policy Section submitted a lengthy research paper called The Future of Organ Donation in Australia: Moving beyond the ‘Gift of Life.’

It covered every aspect of organ donations around the world. It compared Opt-In and Opt-Out systems, our appalling donation levels compared with other countries in the Western world (except New Zealand) and the idea of payments and other incentives for organ donation.

When the Howard Government, in 2006, established the National Clinical Taskforce on Organ and Tissue Donation, their report, delivered two years later to the Rudd Government, not only enshrined the “gift of life” doctrine but predictably ruled out any commercial trade in organs.

The Rudd Government then allotted $150 million over four years to the cause. And enshrined the Opt-In system.

I made a submission in favour of Opt-Out to the Victorian Government’s Standing Committee on Legal & Social Issues in 2011 and other states; also considered bi-partisan bills and inquiries. When he was in opposition in NSW, future Premier Barry O’Farrell told Parliament, “I personally believe the system needs to be adopted.”

The National Clinical Taskforce was given a brief “to provide evidence-based advice on ways to improve the rate of safe, effective and ethical organ, eye and tissue” transplants and provide a “road map” for reform that would increase donor rates. It recommended that no Australian state or territory introduce an Opt-Out system.

Like me, supporters of Opt-Out pointed out how many countries were switching to Opt-Out. Spain, Portugal, Belgium, France and Greece. I have since learned that even in Spain – one we champion as the best in the world – organ donation still requires family consent which, to me, defeats the whole purpose of the Opt-Out option.

The only country which really had an arbitrary Opt-Out system was China, where organs were being “donated” by executed prisoners. As my anxious wait for a donated liver went on I was urged to “go to Shanghai and buy one.”

Which leads me to the United States, which now has a system I’ll call Opt-In Plus…

In the US they have liberalised and expanded the Opt-In system. Their Anatomical Gift Act takes it a step further and allows for first-person consent. Primary Consent. That means once a person has signed up as a donor, nobody (not even family) has the right to overturn that decision unless, of course, the person themselves has withdrawn consent.

Some Australians have already naively signed such a document thinking that it ensures their final wish will be granted from the grave.

In clinical practice, and for medical, legal and ethical reasons, transplant clinicians always involve the deceased donor’s family in the consent process. In the often stressful and emotional circumstances that surround the sudden and unexpected death of a family member, any objection by loved ones to organ donation is always respected. Health professionals have an ethical obligation to ensure that proceeding with donation will not cause ongoing and undue distress to family members.

It is understandable that, in their crippling grief, family would withhold consent. Many, in fact most, prime candidates for organ donation are dead or dying in sudden, totally unexpected, circumstances.

The “brain dead” diagnosis is hard for families to comprehend when a loved one is lying in a hospital bed with their heart still beating and their lungs lifting the bedclothes. Sure, they’re hooked up to a machine and their eyes are closed, but the hand you are holding is still warm and it seems inhuman for somebody to ask you to sign a paper authorising they be taken away and cut open.

The Opt-In forces strongly believe that a family’s wishes must never be over-ridden and no Australian doctor, even with a donor’s written permission, would go against family wishes and no hospital administration would ever contest such a family refusal in court. One major hospital administrator told me that there had never been such a court challenge and nor would there be.

“It’s hard enough for a grieving family. We wouldn’t consider making a legal challenge and causing them even more grief. It would appear cruel for doctors to argue with a family over a deceased loved one.”

I believe that if a person, while of sound mind, has made that commitment, then that pledge should be honoured. That a “living will” is just that.

So, while I’m going on record about changing my mind, let me remind myself of what I wrote in A Human Deadline: “I believe Australia must move quickly towards an Opt-Out “everybody in” scheme to counter the growing shortage of transplantable organs.”

The chronic shortage is still there. The transplant surgeon who led the team that saved my life, Professor Bob Jones, says they could handle another liver transplant a week and save 52 more lives a year if they had donor organs available. I’m sure the same would apply to lung transplant surgeons.

The “government body snatcher” argument is colourful, emotive, but can’t be peremptorily dismissed.

So for fortunate future Derryn Hinches, let’s find middle ground. An “Opt-In but you can’t opt me out” system where a living donor’s wishes are sacrosanct. First person consent. Where a “living will” is inviolate. Sorry Mum but this is what I truly want. The last gift I will ever give anybody.

I suspect the boss of Transplant Australia could even go along with that even though he has said, “In no individual circumstance would we ever want a family’s beliefs overridden.”

“…if at some stage in the future presumed consent is deemed to have a place in our donation system – and we would be supportive of that – let’s make it a national model.’