Victoria has passed assisted-dying legislation. How will it work and will the rest of Australia follow? TGB partner Victoria Bell examines the milestone development.
What would you do if you knew your future held immeasurable pain and suffering?
How would you feel watching someone you love battle a terminal illness, knowing their only release from the pain will come with their death?
These questions form the crux of the ethical debate around voluntary assisted dying, their answers are deeply personal to every person.
This week the Victorian Parliament passed the Voluntary Assisted Dying Bill paving the way for legislation to be enacted which will provide for, and regulate, access to voluntary assisted dying.
Victoria is not the first Australian jurisdiction to legalise euthanasia and physician-assisted suicide. Pursuant to the Rights of the Terminally Ill Act (NT) both actions were legal in the Northern Territory between March 1996 and March 1997, until the Australian Government intervened, using their constitutional powers to pass legislation abolishing the Act.
Recently, voluntary assisted dying legislation was defeated, by just one vote, in the New South Wales Parliament. It was defeated by the same narrow margin in the South Australian Parliament in November, 2016.
Victoria’s milestone is significant and looks likely to put it back on the legislative agenda elsewhere, including the Northern Territory, where earlier this month Chief Minister Michael Gunner urged the Commonwealth to change its stance on the NT being permitted to make its own legislation regarding assisted dying.
For and against
Voluntary assisted dying, often used interchangeably with the term euthanasia, splits opinion. There are both advocates for and against the idea of voluntary assisted dying with equally strongly held views.
Its supporters have many reasons for their position including, to name but a few:
- People have an explicit right to die;
- It realises individual autonomy – death is a private matter and if there is no harm to others, the state and other people have no right to interfere (a libertarian argument);
- It would allow someone to die with dignity and without unremitting suffering;
- It is possible to regulate and indeed doing so protects the vulnerable from wrongful death;
- Equitable distribution of health care costs.
Opponents cite the following reasons for their position:
- Religious and cultural beliefs;
- It can undermine the relationship between a physician and their patient;
- Rights and reform could be abused – the vulnerable are open to being manipulated.
Whatever side of the fence an individual sits on, it is the writer’s view that it is difficult for anyone to judge the desire of someone to die until such time as they have themselves faced the possibility of a painful, drawn-out death or have had a loved one in that position.
What will the law in Victoria look like?
At the outset the bill outlines principles that should be regarded by any person exercising a power or function under the legislation including:
- Every human life has equal value
- A person’s autonomy should be respected
- Every person approaching the end of life should be provided with quality care to minimise suffering and maximise quality of life
- A therapeutic relationship between a person and their health practitioner should be supported and maintained
- Individuals are entitled to genuine choices regarding their treatment and care
- There is a need to protect individuals who may be subject to abuse
- All persons, including health practitioners, have the right to be shown respect for their culture, beliefs, values and personal characteristics.
Who can access voluntary assisted dying?
Section 6 of the bill outlines that a person can access voluntary assisted dying if they have made a request and been assessed as eligible by the coordinating medical practitioner aswell as a consulting medical practitioner. They must undergo a variety of review processes and ultimately be issued with a voluntary assisted dying permit.
The legislation will state that a health practitioner must not initiate discussion with a person about voluntary assisted dying and also allows health practitioners to conscientiously object to the provision of information regarding voluntary assisted dying and to participate in the process itself.
To be eligible for access to voluntary assisted dying the individual must be:
- 18 or over;
- An Australian citizen or resident and be ordinarily resident in Victoria and at the time of the first request for voluntary assisted dying have been in Victoria for at least 12 months;
- Must have decision making capacity and;
- Must be diagnosed with a disease, illness or medical condition that is incurable, is advanced and will cause death within six months (except in certain circumstances) and the condition is causing suffering to the individual that cannot be relieved in a manner that the person considers tolerable.
The legislation will also state that a person is not eligible only because they have been diagnosed with a mental illness and only because they have a disability.
The scheme is restrictive in one sense, as to who can access voluntary assisted dying, at least when compared to other countries. For example, in Belgium, voluntary assisted dying is not restricted to people with a terminal condition with twelve months or less to live. In 2013, 44-year-old Nathan Verhelst underwent euthanasia after three failed gender re-assignment surgeries left him with physical deformities that he felt made him look like a “monster”. In 2012, 45-year-old identical twins, who were deaf and going blind, believed they had nothing left to live for so were allowed assisted dying. Belgium has also become the first country to legalise euthanasia for children in certain circumstances.
What will be the process in Victoria?
The person concerned must make a first, clear and unambiguous request (verbally or by gestures or other means of communication available) to a registered medical practitioner.
Within seven days the medical practitioner must accept or refuse the request (eg by way of conscientious objection). If the medical practitioner accepts the request they must record it on the person’s medical record and they will become the coordinating medical practitioner.
The coordinating medical practitioner must then make an assessment as to whether the person meets the eligibility criteria referred to above. They can refer the person to a registered health practitioner for specialist opinion if required.
If the coordinating medical practitioner believes the individual is ineligible the request and assessment process ends.
If they believe the individual is eligible they must refer the person to another registered medical practitioner for a consulting assessment. Upon accepting the referral (presuming there is no conscientious or other objection) the consultant does their own assessment of eligibility and is able to refer to another practitioner with appropriate skills and training if necessary.
Upon completion of both the co-ordinating medical practitioner’s assessment and the consulting medical practitioner’s assessment reports are duly given to the Voluntary Assisted Dying Review Board.
A person may then make a written declaration requesting access to voluntary assisted dying if they have been assessed as eligible by both the coordinating medical practitioner and the consulting medical practitioner. The declaration must specify that the person is making the declaration voluntarily and without coercion and that they understand the nature and effect of the declaration. It must be signed in front of two witnesses and the coordinating medical practitioner. The witnesses cannot be a beneficiary under the person’s will or otherwise benefit in any financial or material way from the death of the person making the declaration. In addition, the witnesses cannot be an owner of, or responsible for the day to day running of, the health facility at which the person resides. Not more than one witness may be a family member. These restrictions seem to have been inserted into the bill to allow some protection of the potentially vulnerable person and to help ensure they are not being manipulated.
After making a written declaration the person can then make a final request for access to assisted dying. The request is to be made to the co-ordinating medical practitioner and can be done verbally, by gestures or other means of communication available to the person.
On receipt of the final request the coordinating medical practitioner reviews all of the forms and reports previously compiled and completes final paperwork certifying whether the request and assessment process has been completed appropriately. They then give a copy of all documents to the Board for consideration.
Once all of the above steps have been taken application can be made to the Head of the Department of Health and Human Services for a voluntary assisted dying permit. There appear to be two types of permits proposed. The first will be a self-administration permit which, as the name implies, will allow a person with the physical capacity to do so to obtain, possess, store, use and self administer the voluntary assisted dying substance. The second permit is a practitioner administration permit which allows the coordinating medical practitioner to use the voluntary assisted dying substance if the is physically incapable of self-administration.
The Head of the Department then must make a decision to issue or refuse the permit and notify the coordinating medical practitioner accordingly. If an application is refused they must provide reasons for their decision.
Once the permit has been issued the voluntary assisted dying substance can be administered. The legislation outlines in detail how this is to occur and what information must be given to the person before the substance is administered.
Protections, potential problems and review rights
The Act will have in-built protections for the person seeking voluntary assisted dying including the limitation on witnesses to the processes as outlined above. In addition, the legislation will make it quite clear that an individual can withdraw from the process at any time.
There are a number of potential issues that might arise in circumstances were a person is applying for voluntary assisted dying. These include:
- Where parties do not agree that someone has decision-making capacity to make the application;
- Where parties feel that a person is making an application under duress;
- Where the medical evidence with respect to diagnosis and expected time of death is conflicting;
- Where third parties obtain independent medical evidence which is contrary to that of the coordinating and consulting doctors.
These types of matters appear to be capable of review by an eligible applicant at the Victorian Civil and Administrative Tribunal. An eligible applicant will be defined as the person who is the subject of the decision, their agent, or (importantly in the writer’s view) any other person who the Tribunal is satisfied has a special interest in the medical treatment and care of the person. This would, on the face of it, include family and partners of the person who has sought voluntary assisted dying.
The legislation itself does not seem to outline what, if any, legal assistance could be given to parties making a review application to the Tribunal. However, given the seriousness of the matter the writer would expect that legal assistance would be permitted and, in fact, encouraged.
It is interesting that the proposed legislation does not detail what role psychologists and psychiatrists will have, particularly in assisting with the determination of decision-making capacity.
Also, it is unusual that the legislation does not place any requirement on the person approaching death to have their legal affairs in order prior to having the voluntary assisted dying substance. It would seem important to make sure the individual has a duly executed and valid Will at the time of their passing.
What does the future hold?
With Victoria now setting the precedent on assisted dying legislation, it is likely that other states will attempt to follow suit. NT Chief Minister Gunner has been the most vocal state leader in recent times. However, the issue is regularly raised and debated by politicians across all Australian states and territories. Watch this space…