Voluntary assisted dying in Australia: What you need to know

This article by Courtney Hempton was originally published by the Lens

The Voluntary Assisted Dying Act 2017 (Vic) came into effect on 19 June 2019, making Victoria the first state in Australia to allow “voluntary assisted dying”.

The legislation was passed in November 2017 following the recommendations of a state parliamentary inquiry into end of life choices, and a subsequent ministerial advisory panel on voluntary assisted dying.

While Victoria isn’t the first jurisdiction in the world to offer some form of assisted death, the state’s legislation is unique in the way voluntary assisted dying will be regulated.

What is voluntary assisted dying in Victoria?

Voluntary assisted dying refers to a doctor providing assistance to enable a patient to die. It may offer an additional “end of life” option for those considered eligible, allowing a person to choose to die sooner than otherwise anticipated.

A person may request voluntary assisted dying to avoid suffering that cannot be managed in a way they consider tolerable. It’s also a means to control the time and location of their death.

The Victorian regime primarily sets out a practice of “self-administration”, allowing a person to self-administer a prescribed lethal substance. A doctor doesn’t need to be present, though can be.

If a person is physically unable to self-administer, the legislation also provides for “practitioner administration”, allowing a medical practitioner to administer the substance in a way most appropriate for the patient.

Who can access voluntary assisted dying in Victoria?

To be eligible to access voluntary assisted dying in Victoria, a person must:

• be aged 18 or over
• have lived in Victoria for at least one year before making a first request for voluntary assisted dying, and be an Australian citizen or permanent resident
• have decision-making capacity in relation to voluntary assisted dying, meaning they must be able to understand, retain, and weigh information about voluntary assisted dying, and communicate their decision.

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They must be diagnosed with a disease, illness, or medical condition that is assessed to be:

• incurable, advanced, and progressive
• causing suffering that cannot be relieved in a way considered tolerable by the person
• predicted to cause death within no more than six months, or no more than 12 months for those with a neurodegenerative diagnosis.

Victoria is not establishing a “right” to voluntary assisted dying. This means there will not be universal access, and people cannot demand voluntary assisted dying.

Rather, access to voluntary assisted dying will depend on the availability of participating health services and medical practitioners, and the approval of the state.

How does someone access voluntary assisted dying in Victoria?

The legislation outlines a formal procedure for someone to access voluntary assisted dying in Victoria, with specific requirements for making a request, assessment of eligibility, and processes for applying for a voluntary assisted dying permit.

In brief, the first step is a request, made directly by the person to a medical practitioner. This is followed by an initial assessment to determine eligibility, conducted by a “coordinating medical practitioner”.

Next, another doctor, called a “consulting medical practitioner”, will conduct a second assessment to confirm the person’s eligibility. The patient will also need to make a second request, in the form of a written declaration, signed in the presence of two witnesses and the coordinating medical practitioner.

The patient will then need to make a third and final request to the coordinating medical practitioner at least nine days after the first request (unless death is likely to occur before).

Lastly, the coordinating medical practitioner will conduct a final review to certify the request and assessment process. They’ll then apply for a permit, either for self-administration or practitioner administration.

Either or both the coordinating or consulting medical practitioner may refer the patient to another specialist to assess aspects of the eligibility criteria if needed.

Importantly, at any stage of the process, a person who has requested access to voluntary assisted dying may change their mind and decide not to proceed.

What safeguards are in place?

The ministerial advisory panel on voluntary assisted dying details 68 “safeguards”, considering aspects of eligibility and access, medication management and storage, protections for practitioners, and reporting and oversight.

Safeguards for members of the community include the required “voluntariness” for accessing voluntary assisted dying.

A person requesting voluntary assisted dying must have decision-making capacity at the time of the request. It’s not possible to make a request for voluntary assisted dying in an advance care directive.

A discussion about voluntary assisted dying must be initiated by the person directly, and cannot be initiated by a health practitioner.

Safeguards for health practitioners include provisions for conscientious objection. This means doctors can refuse to participate in any processes related to voluntary assisted dying, including providing information, assessing eligibility, and prescribing or administering drugs.

Medical practitioners participating in voluntary assisted dying must hold certain registrations as relevant to their speciality, and must complete online or face-to-face training on voluntary assisted dying.

A Voluntary Assisted Dying Review Board has been established to monitor and report on the operation of voluntary assisted dying.

Wider implications of voluntary assisted dying in Victoria

The state’s introduction of voluntary assisted dying represents a historic transformation of health law in Victoria.

The task now for the state is to operationalise the legislation in health policy and clinical care. A Voluntary Assisted Dying Implementation Taskforce has been established to prepare for and oversee practical implementation of voluntary assisted dying.

Navigating the complex legislation will be a new challenge for health services, health practitioners, and patients. It remains to be seen how Victoria’s voluntary assisted dying regime will work in practice.

Whether or not one supports assisted death, Victoria’s approach to voluntary assisted dying raises a number of important questions – about the power of medicine and the role of medical practitioners, about medical treatment decision-making and end of life choices, and about dying and the value of death.

With other jurisdictions in Australia exploring the legalisation of some form of assisted death, the implementation of voluntary assisted dying in Victoria is under close scrutiny, both within the state, country and internationally.

Courtney Hempton is affiliated with the Monash Health Voluntary Assisted Dying Working Group.

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Courtney Hempton: PhD Candidate, Monash Bioethics Centre