Voluntary Assisted Dying
In 2017 Victoria was the first Australian state to pass voluntary assisted dying legislation (the Voluntary Assisted Dying Act 2017 – “the Act”). The law came into operation on 19 June 2019. Since then, similar legislation has been enacted in Western Australia, Tasmania, Queensland and South Australia. The New South Wales equivalent law will come into effect on 28 November 2023. Voluntary assisted dying remains illegal in the Northern Territory and the ACT.
What is Voluntary Assisted Dying?
The term refers to the process by which a person may legally, and voluntarily, end their own life with the assistance of a health practitioner.
How does a person qualify for Voluntary Assisted Dying in Victoria?
The Act stipulates that a person wishing to end their life by use of the VAD legislation must be 18 or over, be a permanent resident or Australian citizen ordinarily resident in Victoria for at least 12 months, have “decision-making capacity” and be diagnosed with a disease, illness or medical condition that is:
- Incurable; and
- Advanced, progressive and will cause death; and
- Is expected to cause death within less than 6 months; and
- Is causing suffering that cannot be relieved in a manner that the person considers tolerable.
What other regulatory “safeguards” are in place?
To be eligible a person must effectively make two separate “requests”. The first is to a medical practitioner (known as the “co-ordinating medical practitioner”). That doctor must then assess whether the person meets the eligibility criteria above. If there is some doubt about whether the person has “decision making capacity” or is suffering from an incurable disease which will cause death within 6 months, the co-ordinating medical practitioner must refer the person to a psychiatrist or a specialist dealing with the type of medical condition in question.
The person must then undergo a second similar assessment by a “consulting medical practitioner”.
Next, the person must make a written declaration requesting to continue with the process.
Finally, the person must make a final in-person request (verbally or by gestures) to one of the two medical practitioners to finish the process.
How does the Victorian legal framework differ from those in other countries?
A number of other international jurisdictions have enacted Voluntary Assisted Dying regimes – most notably several US states and nations such as New Zealand, Canada, The Netherlands, Belgium, Luxembourg, Switzerland, Spain and Austria. In most of these countries the law allows self-administration or practitioner administered lethal medication for people who suffer incurable diseases causing unbearable suffering. Some jurisdictions go further: The Netherlands and Belgium, for instance, allow minors over the age of 12 to have access to Voluntary Assisted Dying; in Belgium VAD is also available for unbearable “mental suffering”; and in Switzerland it is legal to assist a suicide for “unselfish” reasons and even if the person does not have a terminal illness.
What has been the take-up of Voluntary Assisted Dying in Victoria?
The Voluntary Assisted Dying Review Board was required to report every six months until June 2021 and then annually thereafter. Its most recent report (to June 2022) outlined the following statistics:
- Since 2019, 604 Victorians have died as a result of taking a prescribed lethal substance.
- 291 additional individuals were prescribed a lethal substance, but died from other causes before it was administered.
- The most common underlying cause of death of people seeking VAD was some form of malignant condition (78%) with the rest suffering from a neurodegenerative disease.
- The gender ratio was 54% males and 46% female.
- 75.5% of successful applicants were over 65 years of age with the median age being 73.
What is likely to happen in the future?
The Victorian Government will be holding a review of the VAD legislation in the second half of 2023. Medical professionals and assisted dying advocates have urged several reforms to effectively ease the burden on those seeking VAD. In particular, these groups advocate for the abolition of the residency requirements (the argument is that all Australian States will have similar laws in place by the end of this year, so these restrictions are unnecessary); the lifting of the six-month life expectancy rule (advocates argue that anybody with a terminal illness should qualify); and the amendment of the Commonwealth law which prohibits doctors (or anybody else) from discussing “suicide” via a carriage service (phone, email, telehealth) which, has effectively caused great difficulty for rural and regional patients who do not have ready “in-person” access to a medical practitioner.
