Voluntary Assisted Dying Act in Victoria

19 November 2018

In recent times, the legalisation of ‘euthanasia’ has been hotly debated within our homes, schools and parliaments. Whilst positions may remain conflicted, the State Government of Victoria has passed the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) which is due to commence on 19 June 2019.1

Upon the commencement of the VAD Act, eligible persons who are diagnosed with a terminal illness may access a lethal dose of medication provided they satisfy the robust safeguards within the VAD Act’s framework. This article provides a brief overview of how the VAD Act will operate and allow eligible persons such access.

A new beginning

On 7 May 2015, the Legislative Council of Victoria directed the Legal and Social Issues Committee to ‘inquire into, consider and report on the need for laws in Victoria to allow citizens to make informed decisions regarding their own end of life choices…2

In conducting its inquiry, the Legal and Social Issues Committee (Committee) undertook an extensive research and consultation process through numerous tasks including:

  • reviewing some 1,037 submissions made to it, 925 from individuals in a private capacity and 112 from organisations3
  • conducting extensive site visits and public hearings around Victoria including 17 days of public hearings with 154 witnesses4
  • reviewing current approaches to palliative care including policy and legislative framework at local, state and national levels5
  • traveling to the Netherlands, Switzerland, the Canadian Province of Québec and the United States to speak to stakeholders about their jurisdictions assisted dying frameworks6
  • examining how Victoria’s legal framework relating to assisted dying is affecting people at the end of their life7

The results of the Committee’s research and consultations were vast to say the least, leading it to conclude, among other things, that Victoria’s current framework ‘does not reflect our contemporary society’s values’ and is prohibiting assisted dying which is causing some people great pain and suffering.8

In considering its findings, the Committee made 49 recommendations including:9

RECOMMENDATION 49: That the Victorian Government introduce a legal framework providing for assisted dying, by enacting legislation based on the assisted dying framework outlined in this Report in Annex 1, Assisted Dying Framework Summary

It was the 49th recommendation of the Committee which ultimately led to the Voluntary Assisted Dying Act 2017 (Vic) being passed.

The VAD Act

The purpose of the VAD Act is to:10 

  • provide for and regulate access to voluntary assisted dying
  • establish the Voluntary Assisted Dying Review Board

These purposes are intended to ensure that there is a balance for ‘a compassionate outcome for people at the end of their lives who are suffering, and providing community protection through establishment of robust safeguards and comprehensive oversight.’11

Voluntary assisted dying’ is defined as ‘the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration.’12 A person (Requesting Person) will be eligible to make a request for access to voluntary assisted dying if:

  • they 18 years or older; and
  • the Requesting Person must:
    • be an Australian citizen or permanent resident; and
    • be ordinarily resident in Victoria; and
    • have been ordinarily resident in Victoria for at least 12 months at the time of making a request for access to voluntary assisted dying; and
  • the Requesting Person must have decision-making capacity in relation to voluntary assisted dying; and
  • the Requesting Person must be diagnosed with a disease, illness or medical condition that:
    • is incurable; and
    • is advanced, progressive and will cause death; and
    • is expected to cause death within weeks or months, not exceeding 6 months; and
    • is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.
      (Eligibility Criteria)

For a Requesting Person to access voluntary assisted dying, they must commence and satisfy a stringent, robust but compassionate process as set out below.

Stage 1 – the first request

The Requesting Person must make a clear and unambiguous request in person to a registered medical practitioner (Co-ordinating Practitioner) for access to voluntary assisted dying (First Request).13 The Co-ordinating Practitioner will then conduct a first assessment of the Requesting Person’s eligibility pursuant to the Eligibility Criteria.14

If the Co-ordinating Practitioner is satisfied the Requesting Person meets the Eligibility Criteria, the Co-ordinating Practitioner will inform the Requesting Person of certain information15 – such as the person’s diagnosis, prognosis and treatment options – and refer the Requesting Person to another registered medical practitioner (Consulting Practitioner) for a consulting assessment.16

Stage 2 – the second request

Upon the Requesting Person being referred to a Consulting Practitioner, the Consulting Practitioner will assess whether the Requesting Person meets the Eligibility Criteria for accessing voluntary assisted dying.17

Stage 3 – written declaration

If a Requesting Person has been assessed by both a Co-ordinating Practitioner and a Consulting Practitioner as person eligible for access to voluntary assisted dying, then that Requesting Person may now make a written declaration requesting access to voluntary assisted dying.18

The written declaration of the Requesting Person must:19

  • specify that the Requesting Person:
    • makes the declaration voluntarily and without coercion; and
    • understands the nature and the effect of the declaration the person is making; and
  • be signed by the Requesting Person in the presence of two eligible witnesses and the Co-ordinating Practitioner.

Stage 4 – final request

If a Requesting Person has made a written declaration, then they may make a final request in person to their Co-ordinating Practitioner for access to voluntary assisted dying.20

Upon receipt of the Requesting Person’s final request, the Co-ordinating Practitioner will, among other things:21

  • conduct a final review  of the earlier reports, assessment and the written declaration;
  • complete the final review form in respect of the person; and
  • certify whether the request and assessment process has been completed as required by the VAD Act.

Stage 5 – permit application

Once a Co-ordinating Practitioner certifies a final review form that the request and assessment process has been completed as required by the VAD Act, then the Co-ordinating Practitioner may apply for either an application for self-administration permit, or application for practitioner administration permit.22 Such an application will be made to the Department Head of the Department of Health and Human Services (Secretary).23

If a permit is granted by the Secretary, then the Co-ordinating Practitioner may prescribe and supply the voluntary assisted dying substance to the Requesting Person for self-administration or administration by a practitioner.24

Summary

The VAD Act is a complex but structured piece of legislation allowing eligible persons access to a lethal substance for administration which will cause their death. As described above, there are numerous mechanisms which are intended to protect both vulnerable persons from abuse and as well as our community including the medical practitioners working within the VAD Act’s framework. Notwithstanding the intentions behind the VAD Act, its success will only be measureable once it comes into operation on 19 June 2019.

 

1 Voluntary Assisted Dying Act 2017 (Vic) s 2(2).
2 Legal and Social Issues Committee, Parliament of Victoria, Inquiry into end life choices- Final Report (2016) xiii.
3 Ibid xix.
4 Ibid.
5 Ibid xxii.
6 Ibid
7 Ibid xxvi.
8 Ibid xx.
9 Ibid 213.
10 Voluntary Assisted Dying Act 2017 (Vic) s 1.
11 Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly Fifty-Eighth Parliament First Session, 21 September 2017, 2949 (Hon. Jill Hennessy, MP).
12 Voluntary Assisted Dying Act 2017 (Vic) s 3.
13 Ibid 11(2).
14 Ibid s 16.
15 Ibid s 19.
16 Ibid 22.
17 Ibid s 25.
18 Ibid s 34(1).
19 Ibid s 34(2).
20 Ibid s 37.
21 Ibid s 41(1)(a).
22 Ibid s 43.
23 Ibid s 47 and 48.
24 Ibid s 49.

Author

Kieran Bowling
Lawyer
Litigation & Dispute Resolution
E: KBowling@rigbycooke.com.au

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