New euthanasia/assisted suicide law in Australia
Victoria's Voluntary Assisted Dying
Act 2017
Sean Murphy*
Introduction
On 19 April, 2018, the legislature of the State of
Victoria, Australia, passed the
Voluntary Assisted Dying
Act 2017, which will come into force in
June, 2019. It is currently the most restrictive
euthanasia/assisted suicide (EAS) legislation in the world, running to 130
pages. In brief, the law authorizes physician assisted suicide for
terminally ill adults, but permits euthanasia by physicians only when
patients are physically unable to self-administer a lethal drug. In
both cases a permit must be obtained in advance. The main elements of
the law are set out below, followed by consideration of its protection of
conscience provisions.
Patient eligibility criteria
Assisted suicide and euthanasia are not permitted as treatment for mental
illness or for disability. However, patients (including the
mentally ill and disabled) who meet the following criteria may apply for
assisted suicide/euthanasia (Section 9):
- Australian citizen or permanent resident ordinarily resident in the
state of Victoria for at least 12 months
- at least 18 years old
- decisionally competent
- diagnosed with an incurable and advanced or progressive terminal illness or
medical condition that will cause death within 6 months (12 months in the
case of a neurodegenerative condition)
- that causes suffering that cannot be relieved in a manner the
person finds tolerable.
Practitioner experience
Only medical practitioners who hold fellowships with a specialist college
or who have been in practice for at least five years may act as
"co-ordinating" or "consulting" medical practitioners who may receive and
act upon requests for euthanasia or assisted suicide. In any
given case, one of them must have been in practice for at least five years,
and one must have "relevant experience or expertise" in the terminal illness
or condition in that will cause the death of the patient (Section 10).
While medical practitioners with these qualifications may accept a first
request for euthanasia or assisted suicide and a referral for consulting
assessment, they may not assess patient eligibilty unless they have first
completed EAS assessment training (Section 17, 26).
EAS pathway
First request
Patients must personally request euthanasia or assisted suicide from a
medical practitioner. They may communicate in any manner available to
them, but the request must be "clear and unambiguous" (Section 11). If
the patient does not proceed along the EAS pathway to the next step, the
request is considered abandoned and a new first request must be made
(Section 12).
Medical practitioners may either accept or refuse the request and must
notify patients of their decision and reasons for it within seven days.
Refusal is permitted for only three reasons: conscientious objection,
practitioner unavailability to proceed, or lack of required practitioner
experience (Section 13).
Medical practitioners who accept the first request become "co-ordinating
medical practitioners" and must record the request and their decision in the
patient's chart (Section 14, 15). The law does not require them to
enter a refusal in the chart.
Nothing in the law prevents a patient whose first request is refused from
approaching a different medical practitioner with another "first" request.
However, the law does not require a physician who refuses a request to help
the patient find another physician.
First assessment
The first request, if accepted, results in a first assessment, the
purpose of which is to establish whether or not the patient meets all of the
eligibilty criteria to access euthanasia or assisted suicide (Section 20).
During the first assessment, co-ordinating medical practitioners may refer
patients to other registered health practitioners to assist in determining
whether or not the patient meets the criteria, including voluntariness,
decision-making capacity, etc. Clinical assessment of someone with a
neurodegenerative condition must be made by someone who is a specialist in
that condition (Section 18).
A co-ordinating practitioner who concludes that a patient is eligible for
euthanasa or assisted suicide must, within seven days of completing the
assessment, so inform the patient and submit a written first assessment
report to the Voluntary Assisted Dying Review Board (Section 21). The
practitioner must provide the patient with diagnosis, prognosis,
explanations of alternative treatment options, and warn of the risks
associated with taking lethal drugs. The practitioner must make clear
that the expected outcome is death, that the patient may decide at any time
not to proceed, and advise the patient to notify other medical practitioners
providing health care of their plans (Section 19).
Only with the patient's consent, the practitioner must notify a family
member and discuss a plan for patient self-administration of a lethal drug
(Section 19). This reflects the legal preference for assisted suicide.
Note that the law requires that a family member be advised of the plan
before the mandatory consulting assessment.
A co-ordinating practitioner who, following the first assessment,
concludes that a patient is eligible for euthanasa or assisted suicide, must
refer the patient for a consulting assessment (Section 22).
Consulting assessment
Medical practitioners who receive a referral for an EAS consulting
assessment must, within seven days, notify the co-ordinating medical
practioner that they accept or refuse the referral. Once more, refusal
is permitted for only three reasons: conscientious objection, practitioner
unavailability to proceed, or lack of required practitioner experience
(Section 23). The law does not require a physician who refuses to
accept a referral to help the co-ordinating practioner find another
consultant.
Medical practitioners who accept a referral for an EAS consulting
assessment become "consulting medical practitioners" (Section 24), but
may not commence an assessment unless they have had EAS assessment training
(Section 26).
The consulting assessment replicates the first (Section 27, 28) and has
the same purpose: to establish whether or not the patient meets all of the
eligibilty criteria to access euthanasia or assisted suicide (Section 29).
A consulting practitioner who concludes that a patient is eligible
for euthanasa or assisted suicide must, within seven days of completing the
assessment, so inform the patient and submit a written consulting assessment
report to the co-ordinating medical practitioner and the Voluntary Assisted
Dying Review Board (Section 30).
A co-ordinating practitioner who is not satisfied with a determination of
ineligibility may refer the patient to another practioner for another
consulting assessment (Section 31). The law does not limit the number
of times this can be done.
Written request/declaration
Patients who have been found to be eligible for euthanasia or assisted
suicide by both a co-ordinating and consulting practitioner must, if they
wish to proceed, make a written request and declaration stating that they
are acting "voluntarily and without coercion" and understand the nature and
effect of the declaration (Section 34).
The written declaration must, if possible, be signed by the patient in
the presence of two witnesses and the co-ordinating medical practitioner.
If the patient is unable to sign, a third person (not one of the witnesses)
who is at least 18 years old may sign the declaration in the presence of the
patient. If an interpreter is used, the interpreter must certify on
the declaration that he has provided "a true and correct translation of any
material translated" (Section 34).
Only one witness may be a spouse or domestic partner, parent, sibling,
child or grandchild, and both must be at least 18 years old. Witnesses
must not be
- likely to benefit financially "or in any other material way" from
the death of the patient,
- an owner or someone responsible for the operation of any health
facility where the patient lives or is receiving medical treatment
- involved in providing health or professional services to the patient
- (Section 3, 35)
Both witnesses must certify, in writing, the legal requirements of
voluntariness, decision making capacity, understanding, their own
eligibility to act as witness. If someone signs the declaration on
behalf of the patient, the witnesses must also affirm that this was directed
by the patient and that the declaration was signed in their presence
(Section 36).
Final request
Having made a written declaration, patients who wish to proceed must
personally make a "final request" for euthanasia or assisted suicide to the
co-ordinating medical practitioner, communicating verbally or by other means
(Section 37). Unlike a first request, the law does not require a final
request to be "clear and unambiguous."
A final request cannot be made until at least the ninth day following the
day on which the first request was made, and at least one day after the
completion of the consulting assessment, unless the co-ordinating medical
practitioner believes the patient is likely to die before then (Section 38).
Contact person
After making a final request, the patient must appoint a contact person
who will be responsible for returning unused or remaining lethal drug to the
dispensing pharmacy within 15 days of the date of the patient's death.
The contact person must be at least 18 years old, and willing to assume the
responsiblity (Section 39).
The appointment must be in writing on a required form and must be signed
by the patient and contact person in the presence of a third person who is
at least 18 years old. Patients who cannot sign may direct a fourth
person who is at least 18 years old to do so on their behalf, in their
presence. If an interpreter is used, the interpreter must certify on the
declaration that he has provided "a true and correct translation of any
material translated" (Section 40).
Final review
A co-ordinating medical practitioner who receives a final request must
review the first assessment form, consulting assessment form, written
declaration and the form appointing a contact person, complete a final
review form, and complete and submit the final review form to the Voluntary
Assisted Dying Review Board within seven days (Section 41).
Self-administration and practitioner administration permits
If the process has been completed according to the Act and the patient is
eligible, the practioner may apply for a "voluntary assisted dying permit"
in one of two forms: a self-administration (assisted suicide) permit or
practitioner administration (euthanasia) permit (Section 43).
Note that the applicaton for the permit is discretionary; the
practitioner is not required to apply for a permit even if the patient is
eligible for euthanasia and assisted suicide and the process has been
properly followed. The law makes no provision for what is to be done
in the event the practitioner does not apply.
Upon receipt of an application, the Secretary of the Department of Health
and Human Services may issue a permit. The law does not specify when a
permit is to be issued, but states that the Secretary must notify the
co-ordinating medical practitioner of the decision as soon as practicable.
It expressly provides that the Secretary may refuse to issue a permit, in
which case notification must include the reasons for refusal. The
Secretary must advise the Voluntary Assisted Dying Review Board of the
decision within seven days (Section 49).
Permits come into effect on the day specified therein (Section 50).
Self-administration permits
co-ordinating practitioners may apply for a self-administration permit
for an approved patient who is capable of self-administering lethal drug
(Section 47). Self-administration permits authorize co-ordinating
practitioners to prescribe and supply a lethal drug that can be
self-administered. They also authorize approved patients to "obtain,
possess, store, use and self-administer" the drug, and permit contact
persons to possess and store remaining or unused drug until it can be
returned to the dispensing pharmacy (Section 45).
A self-administration permit remains in force until the co-ordinating
medical practitioner destroys an unfilled prescription, or until a
pharmacist gives the Board notice that the lethal drug dispensed pursant to
it has been destroyed (Section 52).
Patients for whom self-administration permits have been issued who become
physically incapable of self-administration may personally request the
co-ordinating practitioner to apply for a practitioner administration
permit. The patient may make the request verbally or by other means,
and the law does not require a final request to be "clear and unambiguous,"
nor is a witness required (Section 53).
Practitioner administration permits
co-ordinating practitioners may apply for practitioner administration
permits if they intend to supply and administer a lethal drug to an
approved patient. However, practitioners are authorized to administer a
lethal drug only if the patient is, in the first place, "incapable of the
self-administration or digestion," which seems to imply that the drug itself
must be one that can be self-administered (Section 48).
However, this does not mean that the drug must be one the patient can
ingest orally, or that the patient must be able to self-inject accurately
and efficiently. Following the example of Dignitas facilties in
Switzerland, an IV line could be put in place and the patient given control
of a switch or valve that releases the lethal drug through an IV port.
Self-administration (assisted suicide)
When prescribing lethal drug to a patient under a self-administration
permit, co-ordinating medical practitioners must explain how to
self-administer the drug, and that the patient is not obliged to do fill the
prescription and may return it at any time. They must explain that the
lethal product is to be kept securely locked up, that the patient is not
obliged to take it, and that any unused product must be returned to the
dispensing pharmacy by the patient or contact person (Section 57).
Pharmacists must repeat the same information when dispensing lethal drugs
(Section 58).
No one may administer a lethal drug to a patient under the terms of a
self-administration permit; one who does so commits an offence and is liable
to life imprisonment (Section 84). It is also an offence to employ
"dishonesty or undue influence" to induce a patient who is the subject of a
self-administration permit to take a lethal drug (Section 86).
Patients are free to commit suicide by self-administering the prescribed
lethal drug at the time and place and in circumstances of their choosing,
with or without others present. If the prognosis is accurate, this
will occur (if it does) within 6 or 12 months; longer if the prognosis is
inaccurate.
Practitioner administration (euthanasia)
The law establishes assisted suicide as the norm for patients capable of
self-administration. Even under the terms of a pratitioner administration
permit, the law does not permit co-ordinating practitioners to administer
lethal drugs unless the patient is physically incapable of
self-administration (Section 46), and this must be certified after the fact
(Section 66).
Patients for whom a practitioner administration permit has been issued
who are physically incapable of self-administration must personally make an
"administration request" to the co-ordinating practitioner to be lethally
injected, communicating by any means available. The practitioner must
be satisfied that the patient making the request is capable of making a
decision in relation to euthanasia, is acting voluntarily and without
coercion, and has an enduring desire for euthanasia (Section 46, 64).
These points, too, must be certified afterward (Section 66).
An administration request must be made in the presence of a witness who
is at least 18 years old and is independent of the co-ordinating medical
practitioner. The witness must subsequently certify, in writing, the
legal requirements of voluntariness, decision making capacity and
understanding and confirm that the practitioner administered the lethal
drug(Section 65).
The co-ordinating practitioner is to provide euthanasia immediately after
a request made in these circumstances (Section 46), complete a form
including the requisite certifications, and submit the form to the Board
within seven days (Section 66).
Protection of conscience provision
The first point to note is the definition of voluntary assisted dying:
"the administration of a
[lethal drug intended to cause death]1 and includes steps reasonably related to
such administration."
Clearly, the "steps" would include any of the actions explicitly required
by the law, such as assessments, notifications, acting as a witness,
dispensing lethal drugs, filing reports, etc., as well as setting
intravenous lines and other technical preparations for administering the
lethal drugs.
However, the exercise of freedom of conscience by medical practitioners,
while explicitly acknowledged in provisions that allow them to refuse to
accept requests or referrals, is subject to the provisions in Section 7.
This applies to professionals registered under
the
Health Practitioner Regulation National Law Act 2009,
including medical practitioners, nurses, pharmacists, radiologists and
ten other health professions (Section 3): in short, all recognized health
care professionals.
7. Conscientious objection of registered health
practitioners
A registered health practitioner who has a conscientious objection to
voluntary assisted dying has the right to refuse to do any of the following-
(a) to provide information about voluntary assisted
dying;
(b) to participate in the request and assessment process;
(c) to apply for a voluntary assisted dying permit;
(d) to supply, prescribe or administer a voluntary
assisted dying substance;
(e) to be present at the time of administration of a
voluntary assisted dying substance;
(f) to dispense a prescription for a voluntary assisted
dying substance.
The first point to note is that the protection afforded by this
section is too narrow, since it purports to limit the right exercise freedom
of conscience to the actions specifically identified in the section, failing
to acknowledge that freedom of conscience may be engaged by "voluntary
assisted dying" as defined. This includes not just the actions listed
in Section 7, but other activities "reasonably related" to providing
euthanasia and assisted suicide.
Fortunately, "participate" in Section 7(b) is broad enough to encompass
referral, which is usually the most contentious issue. Unfortunately,
"participate" does not appear in the other subsections, which describe
discrete actions. Hence, Section 7 does not appear to protect someone
who objects to setting an intravenous line in advance or otherwise preparing
a patient or equipment for an injection, nor does it seem to protect
objecting pharmacists from demands that they refer patients to colleagues
willing to dispense lethal drugs.
Hospitals, hospices, nursing homes
Only medical practitioners are legally capable of providing EAS
assessments, applying for permits and providing euthanasia and assisted
suicide, and only health practitioners of some kind will assist with
assessments and the provision and administration of lethal medications.
There would seem to be no need to extend protection of conscience provisions
to those not expected to participate in the procedures.
However, the provision does not include hospitals, hospices and nursing
homes where the assessments and procedure are likely to occur, and
denominational facilities may object to the EAS assessments and the
provision of euthanasia and assisted suicide on their premises.
The Act recognizes that the provision of assisted suicide or euthanasia
to patients or residents may have financial implications for institutions,
since it explicitly prohibits an owner or someone responsible for the
operation of a facility where a patient lives or receives treatment from
acting as a witness to a written request/declaration (Section 35).
Further, institutions can be held legally liable if they allow workplace
harassment to take place on their premises, or if they are negligent with
respect to activities taking place there that cause harm.
Thus, it is not unreasonable for denominational enterprises like
hospitals to assert that allowing homicide and suicide on their premises has
moral implications for them, and that this ought to have been recognized by
including recognition of conscientiouis objection by institutions in the
Act. Such protection may be available under constitutional guarantees
and/or human rights laws, but it may be costly and difficult to have such
guarantees enforced.
Related concerns
Section 5 sets out principles that people must have in mind when
"exercising a power or performing a function or duty" under the Act.
Two may generate unrealistic and unfair expectations that could adversely
affect those opposed to euthanasia and assisted suicide.
(f) individuals should be encouraged to openly discuss death and dying
and an individual's preferences and values should be encouraged and
promoted;
(g) individuals should be supported in conversations with the
individual's health practitioners, family and carers and community about
treatment and care preferences;
It would be unreasonable and unfair to expect a practitioner to encourage
and promote a patients' "preferences and values" when the patient prefers
and values something the practitioner considers immoral or even abhorrent.
It would also be unreasonable and unfair to expect practitioners to be
supportive of treatment or care preferences to which they object, though
they may in other ways be supportive of a patient during conversations.
Such expectations would be inconsistent with a third principle included in
Section 5:
(j) all persons, including health practitioners, have the right to be
shown respect for their culture, beliefs, values and personal
characteristics.
Notes
1. "Voluntary assisted dying substance" is the term
used in the law, defined in Section 3 as "a poison or controlled substance
or a drug of dependence specified in a voluntary assisted
dying permit
for the purpose of causing a person's death."