Victoria passes voluntary assisted dying laws

Thursday 30 November 2017
Naty Guerrero-Diaz

Co-authored by Alexandra Partington and Lily McCaffrey, Graduates

The Voluntary Assisted Dying Bill was passed by the Victorian Government yesterday, making Victoria the first state to pass such laws.

The legislation will now go through an 18-month implementation period, coming into effect in June 2019.

Eligibility

To qualify as part of the framework, a person wishing to end their life must:

  • be 18 years of age or over;
  • be an Australian citizen or permanent resident;
  • be ordinarily resident in Victoria;
  • at the time of making a first request, have been ordinarily resident in Victoria for at least 12 months;
  • have decision-making capacity in relation to voluntary assisted dying; and
  • have been diagnosed with an incurable disease, illness or medical condition that is advanced, progressive and will cause death and—
    • is expected to cause death within 6 months, unless it is a neurodegenerative condition, such as multiple sclerosis or motor neurone disease, in which case it must be expected to cause death within 12 months; and
    • is causing suffering that cannot be relived in a tolerable manner.

The framework may not allow individuals with dementia access to assisted dying because they may not have adequate decision-making capacity.

Process

To initiate the process of voluntary assisted dying, an eligible person must themselves make three requests.

The first request must be made to a medical practitioner (a doctor) and must be clear and unambiguous and made by the person personally. The request may be made verbally or by gestures or other means of communication available to the person. The doctor may refuse to participate. If the doctor accepts the request, she or he is known as the co-ordinating medical practitioner and will assess whether the person is eligible. A person who has suffered from a past or current mental illness must be referred to a psychiatrist.

If the co-ordinating medical practitioner assesses the person as eligible, they will then be assessed a second time by another doctor (the consulting medical practitioner). If the second doctor assesses the person as eligible, then the person may make their second request which must be in the form of a witnessed, written declaration.

A person may then make their final request to the co-ordinating medical practitioner. The final request must be made at least 10 days after the first request, unless the person is likely to die within this time. It must be made by the person personally and may be made verbally or by gestures or other means of communication available to the person. Individuals who are eligible must be properly informed about:

  • the diagnosis and prognosis of their condition;
  • the treatment options and their likely outcomes;
  • palliative care and its likely outcomes;
  • the potential risks of taking the lethal dose of medication;
  • the expected outcome of taking the lethal dose of medication;
  • the fact that they are under no obligation to continue with their request and that they can withdraw at any time;
  • that if the person is receiving ongoing health services from another registered medical practitioner, the person is encouraged to inform that other practitioner of their request to access voluntary assisted dying; and
  • any other information relevant to their needs.

Further, if the person consents, the co-ordinating medical practitioner must take all reasonable steps to fully explain to a member of the person’s family:

  • all relevant clinical guidance; and
  • a plan in respect of the self-administration of a voluntary assisted dying substance for the purpose of causing death.

The medication to enable assisted dying is to be provided by pharmacists in locked boxes. The medication will generally be self-administered, however doctors are allowed to administer it on individuals who cannot take it themselves.

Importantly, an individual can change their mind and withdraw from the assisted dying process at any time. If they have withdrawn, but decide once more that they do wish to access voluntary assisted dying, they must begin the process again from the beginning.

Doctors involved in the process

The two doctors involved in the assisted dying process must be qualified as Fellows of a College or vocationally registered. At least one of the two doctors must have 5 years or more post-fellowship experience, and at least one doctor must have expertise in the person’s medical condition. In addition to this, both doctors must have completed the specified training on obligations and requirements under the legislation.

Under the framework, doctors are under no obligation to participate in the scheme and can object to performing assisted dying if they wish. However, a doctor who objects to assisting a patient voluntarily die cannot block the patient’s access to the scheme.

What this means

The introduction of this legislation ensures that people are well informed about end of life choices and can discuss options with their doctors and loved ones with clarity as to their legal position. 

We hope that the laws will lessen the strain already placed on patients and their families at such a significant moment in their lives.

If we can be of assistance in explaining this new law, please call one of our expert injury lawyers on (03) 9321 9988.

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