Western Australia

Voluntary Assisted Dying Bill 2019

What follows are the parts of a euthanasia/assisted suicide bill that pertain to protection of freedom of conscience.

Protection for those who refuse to participate is extended to all registered health practitioners, which, by virtue of the Health Practitioner Regulation National Law (Western Australia) includes nurses, midwives, pharmacists, radiologists, psychologists and other professions.

The bill explicitly excludes students, probably to ensure that only non-student practitioners are permitted to accept and process requests, assess patients and provide euthanasia or assisted suicide (EAS). However, the effect of this exclusion is that nothing in the bill prevents students from being required to participate in all aspects of EAS delivery under the direction of a fully qualified registered health practitioner, or making such practical training a requirement for professional qualification. This would be inconsistent with one of the guiding principles in the bill (Section 4(1)j), so it may be an oversight that will be corrected during the legislative process.

Fully qualified registered health practitioners may refuse to participate in the request and assessment process, prescription, supply or administration of lethal drugs, and to be present when the drugs are administered (Section 9(1)). The bill further states that, by identifying these actions, it does not intend "to limit the circumstances in which a registered health practitioner may refuse" to do them (Section 9(2)). This would seem to extend protection to include refusal to do do things not specified in the section, but obviously related to providing euthanasia or assisted suicide, like setting an intravenous line for administration of lethal drugs. That interpretation is consistent with the definition of voluntary assisted dying, which includes "steps reasonably related to such administration." Clearly, this 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 providing EAS.

Sections 112 and 113 provide protection from civil and criminal liability and disciplinary proceedings for those involved in processing and fulfilling EAS requests if they act in accordance with the law. Section 113(4) extends this protection to omissions in accordance with the bill, but not to the refusals it permits. Since "omission" does not mean "refusal", this may reflect either an oversight in drafting or a deliberate decision to expose objecting practitioners to liability.

What could prove to be most contentious is the requirement in Section 19(5)b that an objecting physician give a patient "information approved by the CEO" of a public service department, perhaps a health department. Whether this will be acceptable to objecting practitioners will depend entirely on the substance of the "approved" information. It is unlikely to be problematic if it consists of general information about how to contact other physicians or health authorities. On the other hand, resistance is likely if the "approved" information portrays euthanasia and assisted suicide as morally acceptable services or directs patients to EAS providers. Objecting practitioners may refuse to comply if the law effectively compels them to express support for moral views they reject, or forces them to facilitate what they consider to be immoral or unethical acts by directing patients to EAS providers.

4. Principles

(1) A person exercising a power or performing a function under this Act must have regard to the following principles —

. . .

(j) all persons, including health practitioners, have the right to be shown respect for their culture, religion, beliefs, values and personal characteristics.

. . .

5. Terms used

. . .

registered health practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) to practise a health profession (other than as a student);

. . .

voluntary assisted dying means the administration of a voluntary assisted dying substance and includes steps reasonably related to that administration;

. . .

9. Registered health practitioner may refuse to participate in voluntary assisted dying

(1) 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) participate in the request and assessment process;

(b) prescribe, supply or administer a voluntary assisted dying substance;

(2) Subsection (1) is not intended to limit the circumstances in which a registered health practitioner may refuse to do any of the things referred to in that subsection.

10. Contravention of Act by registered health practitioner

(1) A contravention of a provision of this Act by a registered health practitioner is capable of constituting professional misconduct or unprofessional conduct for the purposes of the Health Practitioner Regulation National Law (Western Australia).

(2) Subsection (1) applies whether or not the contravention constitutes an offence under this Act.

19. Medical practitioner to accept or refuse first request

(1) If a first request is made to a medical practitioner, the practitioner must accept or refuse the request.

(2) The reasons for which the medical practitioner can refuse the first request are as follows —

(a) the practitioner has a conscientious objection to voluntary assisted dying or is otherwise unwilling to perform the duties of a coordinating practitioner;

(b) the practitioner is unable to perform the duties of a coordinating practitioner because of unavailability or some other reason;

(3) The medical practitioner must refuse the first request if the practitioner is not eligible to act as a coordinating practitioner.

(4) Unless subsection (5) applies, the medical practitioner must, within 2 business days after the first request is made —

(a) inform the patient that the practitioner accepts or refuses the request; and

(b) give the patient the information approved by the CEO for the purposes of this section.

(5) If the medical practitioner refuses the first request because the practitioner has a conscientious objection to voluntary assisted dying, the practitioner must, immediately after the first request is made —

(a) inform the patient that the practitioner refuses the request; and

(b) give the patient the information referred to in subsection (4)(b).

The medical practitioner must record the following in the patient’s medical record —

(a) the first request;

(b) the practitioner’s decision to accept or refuse the first request;

(d) whether the practitioner has given the patient the information referred to in section 19(4)(b).

21. Medical practitioner to notify Board of first request

(1) Within 2 business days after deciding to accept or refuse the first request, the medical practitioner must complete the approved form (the first request form) and give a copy of it to the Board.

(2) The first request form must include the following —

(a) the name, date of birth and contact details of the patient;

(b) the name and contact details of the medical practitioner;

(d) whether the first request was made in person or using audiovisual communication and whether it was made verbally or in another way (for example, by gestures);

(e) the medical practitioner’s decision to accept or refuse the first request;

(f) if the medical practitioner’s decision is to refuse the first request, the reason for the refusal;

(g) the date when the medical practitioner informed the patient of the practitioner’s decision and gave the patient the information referred to in section 19(4)(b);

(h) the signature of the medical practitioner and the date 26 when the form was signed.

30. Medical practitioner to accept or refuse referral for consulting assessment

(1) If a patient is referred to a medical practitioner for a consulting assessment under section 29, 40 or 155(6)(a), the practitioner must accept or refuse the referral.

(2) The reasons for which the medical practitioner can refuse the referral are as follows —

(a) the practitioner has a conscientious objection to voluntary assisted dying or is otherwise unwilling to perform the duties of a consulting practitioner;

(b) the practitioner is unable to perform the duties of a consulting practitioner because of unavailability or some other reason;

(3) The medical practitioner must refuse the referral if the practitioner is not eligible to act as a consulting practitioner.

(4) Unless subsection (5) applies, the medical practitioner must, within 2 business days after receiving the referral, inform the patient and the coordinating practitioner for the patient that the practitioner accepts or refuses the referral.

(5) If the medical practitioner refuses the referral because the practitioner has a conscientious objection to voluntary assisted dying, the practitioner must, immediately after receiving the referral, inform the patient and the coordinating practitioner for the patient that the practitioner refuses the referral.

31. Medical practitioner to record referral and acceptance or refusal

The medical practitioner must record the following in the patient’s medical record —

(a) the referral;

(b) the practitioner’s decision to accept or refuse the referral;

32. Medical practitioner to notify Board of referral

(1) Within 2 business days after deciding to accept or refuse the referral, the medical practitioner must complete the approved form (the consultation referral form) and give a copy of it to the Board.

(2) The consultation referral form must include the following —

(a) the name, date of birth and contact details of the patient;

(b) the name and contact details of the medical practitioner;

(d) the medical practitioner’s decision to accept or refuse the referral;

(e) if the medical practitioner’s decision is to refuse the referral, the reason for the refusal;

(f) the date when the medical practitioner informed the patient and the coordinating practitioner for the patient of the practitioner’s decision;

(g) the signature of the medical practitioner and the date when the form was signed.

107. Failure to give form to Board

A person who contravenes a provision of this Act listed in the Table commits an offence. Penalty: a fine of $10 000.

[The Table includes s. 21(1) and s. 32(1).

PART 8 — PROTECTION FROM LIABILITY

112. Protection for persons assisting access to voluntary assisted dying or present when substance administered

A person does not incur any criminal liability if the person —

(a) in good faith, assists another person to request access to, or access, voluntary assisted dying in accordance with this Act; or

(b) is present when another person self-administers or is 8 administered a prescribed substance in accordance with this Act.

113. Protection for persons acting in accordance with Act

(1) This section applies if a person, in good faith, does a thing —

(a) in accordance with this Act; or

(b) believing on reasonable grounds that the thing is done in accordance with this Act.

(2) The person does not incur any civil liability, or any criminalliability under this Act, for doing the thing.

(3) The doing of the thing is not to be regarded as —

(a) a breach of professional ethics or standards or any principles of conduct applicable to the person’s employment; or

(b) professional misconduct or unprofessional conduct.

(4) In this section, a reference to the doing of a thing includes a reference to an omission to do a thing.