In November 2017, after significant community and parliamentary debate, Victoria became the first state in Australia to lawfully allow terminally ill people to voluntarily end their lives. The Voluntary Assisted Dying Act (the Act) came into operation on 19 June 2019 with the aim of providing for and regulating access to voluntary assisted dying. This article seeks to provide a brief outline on the nature and operation of the Act.
Access to voluntary assisted dying
The Act implements strict eligibility criteria which regulates access to voluntary assisted dying. Section 9 of the Act provides that a person seeking access must:
- be an adult;
- be an Australian citizen or a permanent resident;
- ordinarily reside in Victoria (for no shorter time period than 12 months);
- have decision-making capacity; and
- 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 or 12 months depending on the nature of the diagnosis); and
- is causing suffering to the person that cannot be relieved in a tolerable manner.
Decision-making capacity in relation to voluntary assisted dying is defined in section 4 as requiring the individual to understand the relevant information, retain the information in order to weigh up a decision, and communicate that decision. A person is presumed to have decision-making capacity unless evidence to the contrary is provided.
Notably, individuals applying only by reason of mental illness (within the meaning of the Mental Health Act 2014) or disability (within the meaning of the Disability Act 2006) will not be eligible.
The process
The process of requesting access to voluntary assisted dying provides additional safeguards designed, amongst other things, to respect individual autonomy.
By way of a general outline, the Act requires the person seeking assisted dying to make three clear requests. The first request is made verbally (or by other means of communication) by the patient to their doctor. A doctor who first suggests the idea of assisted dying to a patient may face professional misconduct charges. Once the doctor has accepted the first request, that doctor becomes the co-ordinating medical practitioner for that person. They are then obligated to assess whether the requesting person meets the Act's eligibility criteria for assisted dying. A referral is then provided to a second registered medical practitioner who will undertake a consulting assessment. The consulting process is also in relation to identifying the requesting person's eligibility for assisted dying. A person assessed as eligible must then be informed of a range of matters, including alternative treatment and palliative care options.
Once eligibility has been assessed, the person must make a written declaration signed in the presence of two witnesses. The declaration forms the basis for the second request. It provides that the person making the declaration does so voluntarily and without coercion, and that they understand the nature and effect of the declaration.
The final request is one of the last steps in the process for accessing voluntary assisted dying. The person must personally make the request verbally (or through other means of communication) to the co-ordinating practitioner. Once the final request has been made, the co-ordinating medical practitioner will review all the information and certify that the assessment process has been completed in accordance with the Act. A final review form will also be completed for submission to the Voluntary Assisted Dying Review Board.
Notably, a period of nine days must pass between the first and final request. The day of the first request would not be counted towards the nine days (see: s 44 of theInterpretation of Legislation Act 1984), and therefore the entire process for requesting access to assisted dying can occur within 10 days of the first request being made. At any stage during the process, the person is at liberty to decide not to continue.
Additional protections
The protection of vulnerable people and those who may be subject to abuse was a key concern in the debates regarding the introduction of assisted dying. In addition to the strict eligibility criteria and stringent application process, the Act seeks to deal with this through implementing a range of safeguards. For example, a person will not be able to witness a written declaration where that person knows or believes they may be a beneficiary of a will of the person making the declaration or will otherwise financially or materially benefit in some way from their death. The Act also mandates a maximum 5 year imprisonment penalty for any person who induces a person to request assisted dying.
Other jurisdictions
It remains to be seen whether other states and territories in Australia will follow suit. Indeed, Western Australia and South Australia have both held public enquiries and are considering similar euthanasia laws. In 2017, the NSW Parliament rejected the proposed Voluntary Assisted Dying Bill by one vote. Ultimately, the purported success or failure of the Victorian legislation may play a critical role in paving the way for nation-wide law reform in this area.
For further information please contact:
Angela Harvey, Partner
Phone: +61 2 9233 5544
Email: axh@swaab.com.au
Emily Capener, Graduate at Law
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
