Assisted Dying in Victoria – Part I: An Overview of the Voluntary Assisted Dying Act 2017 (Vic) – Stevie S Martin

Victoria has recently become the latest jurisdiction to legalise assisted dying (a term employed here as a ‘catchall’ phrase intended to cover both assisted suicide and euthanasia). It joins Belgium, Canada, Colombia, Luxembourg, the Netherlands and the US States of California, Colorado, Oregon, Vermont and Washington, and the District of Columbia, which have all introduced legislation permitting some form of assisted death.

Missing from this list are jurisdictions such as Switzerland in which assisted suicide is not unlawful but is also not expressly permitted by legislation. This might come as a surprise, as Switzerland is widely recognised as a jurisdiction that allows assisted suicide, largely as a result of organisations such as Dignitas which provide assistance to residents and non-residents in dying by suicide. In Switzerland, however, there is no legislation akin to Victoria’s Voluntary Assisted Dying Act 2017 (‘VAD’). Rather, art 115 of the Swiss Penal Code criminalises assisting or inciting another’s suicide based on ‘selfish motives’. Thus, provided the assistance is not so motivated, it may be given without risk of prosecution.

The Swiss approach is one way of permitting assisted suicide. More common, however, is the approach taken by the Victorian Parliament in introducing the VAD, legislation expressly permitting and regulating assisted dying. The purpose of this article, published in two parts, is to canvass the background to the enactment of the VAD (which will take effect in mid-2019), and to locate it within the broader debate surrounding permitting forms of assisted dying globally. The Victorian experience has particular resonance with the current debate in England and Wales concerning the blanket ban on assisted suicide in s 2 of the Suicide Act 1961 (UK), not least given the similarity of the human rights instruments in each jurisdiction.

Background to the VAD: A long time in the making

Australia is no stranger to the debate surrounding the legalisation of assisted suicide. Prior to the enactment of the VAD, over 50 Bills had been introduced into the parliaments of Australia’s States and Territories. Indeed, the Northern Territory was the first jurisdiction to introduce legislation expressly permitting a form of assisted dying.

The Rights of the Terminally Ill Act 1995 (‘NT Act’) permitted both physician-assisted suicide and voluntary euthanasia. To be eligible, the individual requesting assistance had to be terminally ill and, ‘in the course of [that] terminal illness’, ‘experiencing pain, suffering and/or distress to an extent unacceptable to [them]’ (s 4). The NT Act outlined various conditions precedent before a medical practitioner could render assistance, including the involvement of a second medical practitioner and a psychiatrist (s 7(1)(c)). Interestingly, the NT Act did not include a ‘lifespan limit’ as is common in US statutes and in Canada (typically, 6 months or less); all that was required was that the patient was terminally ill and their suffering had been confirmed to meet the threshold set out in s 4. Section 8 prohibited a medical practitioner from providing assistance if they were of the opinion that there were palliative care options ‘reasonably available to the patient to alleviate the patient’s pain and suffering to levels acceptable to the patient’. Thus, while the NT Act expressly emphasised the importance of palliative care, it also reaffirmed the centrality of the patient’s experience.

However, the NT Act spent less than a year in effect and was repealed by the Federal Government’s Euthanasia Laws Act 1997 which removed the power of the Northern Territory Legislative Assembly to permit either euthanasia or assisted suicide.

The repeal of the NT Act did not, however, foreclose further debate surrounding the legalisation of assisted dying. Successive governments in Victoria (and, indeed, other Australian States, such as New South Wales) have debated the introduction of laws permitting assisted dying. Momentum for the VAD specifically can be traced to the recommendations contained in the 2016 report of the Victorian Standing Committee on Legal and Social Issues (‘Committee’): Inquiry into End of Life Choices.

The Committee was charged with considering the need for laws concerning the end of life choices of capacitous individuals by Victoria’s Legislative Council in 2015, and undertook ‘an extensive research and consultation process’. The Committee’s report detailed 49 recommendations, the last of which provided: ‘[t]hat the Victorian Government introduce a legal framework providing for assisted dying, by enacting legislation based on the assisted dying framework outlined in this Report…’. The Committee also recommended that, given the ‘clinical and practical implementation issues in establishing an assisted dying framework’ which required ‘further investigation’, the ‘Government should establish an Implementation Taskforce … before the assisted dying framework commences’.

The Victorian Government’s response indicated that ‘[f]urther significant and detailed work would need to be undertaken considering the implementation of this recommendation, including the role and membership of the proposed Implementation Taskforce and the Assisted Dying Review Board’. The Voluntary Assisted Dying Ministerial Advisory Panel (‘the Panel’) – which included medical professionals, lawyers and health advocates – was subsequently established and charged with ‘the responsibility of developing a safe and compassionate voluntary assisted dying framework for Victoria.’ Ultimately, the Panel recommended that physician assisted dying be available for adults meeting certain eligibility criteria.

The Panel recommended a multi-stage request process involving at least two health practitioners bound by mandatory reporting requirements. As for oversight, it was proposed that a Voluntary Assisted Dying Review Board – a statutory body – be established to ‘oversee the voluntary assisted dying framework and review every case and every assessment conducted by a medical practitioner to ensure compliance with the statutory requirements’. Ultimately, the Panel made 66 recommendations, and proposed a system of assisted dying involving 68 safeguards, which informed the drafting of the Voluntary Assisted Dying Bill 2017 (‘Bill’).

The VAD: what does it allow and what are the safeguards?

The Bill was heavily debated in the Victorian Parliament’s upper house, which ultimately passed the proposed legislation 22:18, but not without several amendments. These included reducing the life-expectancy limit to 6 months (although for some conditions, the life-expectancy limit of 12 months remains).

The following features of the scheme are of particular note for the purposes of the ensuing discussion:

• To be eligible, an applicant must:
  • be a capacitous adult, i.e. aged 18 years or older (s 9(1)(a) and (c));

The need for the applicant to be capacitious at the time of accessing assistance rules out the potential for requesting assistance in dying through an advance directive, as is permitted in jurisdictions such as Belgium and the Netherlands,.

• be an Australian citizen, ordinarily resident in Victoria for at least the past 12 months (s 9(1)(b));

This can be contrasted with the situation in, for instance, Switzerland.

• be ‘diagnosed with a disease, illness or medical condition’ (ss 9(1)(d) and 9(5)) that:
  • is incurable; and
  • is advanced, progressive and will cause death; and
  • is expected to cause death within the next 6 months (although, if the disease is neurodegenerative, the life expectancy is 12 months or less); and
  • is causing suffering to the individual which cannot be relieved in a manner that they consider tolerable;
• not be suffering solely from a mental illness or a disability which is not terminal (ss 9(3) and (4));
• make three separate written requests for assistance in dying and be assessed by (at least) two different medical practitioners (Part 3).

In addition to those eligibility requirements, the medical practitioners involved must be satisfied that the applicant is ‘acting voluntarily and without coercion’ (ss 20(1)(d), 29(1)(c)). The requirement that the illness be terminal, and the express exclusion of individuals seeking assistance based on mental health issues or non-terminal disabilities can be contrasted with the position in Belgium, the Netherlands, Luxembourg and Switzerland, which permit assisted dying for individuals who are suffering unbearably but who may not be terminally ill. It is also notable that Belgium remains alone in permitting minors to obtain assistance in dying (although the requirements are different to those with respect to adults). Likewise, while life-expectancy requirements are common to the permissive US jurisdictions and Canada, the VAD has combined both the terminal requirement with the intolerable suffering requirement, which is unique to Victoria and Canada.

The VAD also requires that the medical practitioners involved have completed ‘approved assessment training’ (ss 17, 26) and have attained a certain level of vocational expertise before acting under the relevant provisions of the VAD (s 10).

It is interesting to note that, unlike US jurisdictions, the VAD permits euthanasia (i.e. the administration of the lethal substance by the co-ordinating medical practitioner (i.e. the doctor who is requested to assisted with a patient’s death and who agrees to do so), rather than the patient themselves). If the patient is intending to self-administer the substance, they must obtain a ‘self-administration permit’ which authorises the co-ordinating medical practitioner to prescribe and supply the lethal substance (which must also be specified in the permit) (ss 45, 47). If, on the other hand, the patient has requested euthanasia, a ‘practitioner administration permit’ must be obtained. This authorises the co-ordinating medical practitioner to prescribe and supply the relevant lethal substance (ss 46, 48). In the case of euthanasia, the VAD requires that a witness be present during the administration of the substance (s 46(c)). Whether the patient dies by way of suicide or euthanasia, the VAD also requires that certain steps be taken to return any unused substances (ss 45(c), 46(c)).

The final aspect of note is the VAD’s oversight requirements, which are incredibly extensive and reflect an amalgam of the requirements in the various permissive jurisdictions. The VAD establishes a statutory review body, the Voluntary Assisted Dying Review Board (‘the Board’). The powers of the Board are extensive and include an expansive power to request information (s 103). Moreover, the Board can refer any matter to, inter alia, the Chief Commissioner of Police and the Australian Health Practitioner Regulation Agency (‘AHPRA’) (s 93(e)).

Supplementing the Board’s referral power, Part 8 of the VAD creates several offences including:

• administering a lethal substance if the co-ordinating medical practitioner intends to cause death and knowingly administers the substance (maximum sentence: life imprisonment) (s 83);
• offences relating to inducing a person to request voluntary assistance in dying (ss 85-86); and
• falsifying a form or record required to be made under the VAD (maximum sentence: 5 years’ imprisonment) (s 87).

The first offence, administration of a lethal substance with intent to kill, reflects the legal distinction between assisting death (either by suicide or euthanasia) and withdrawing life-sustaining treatment. The latter is considered an ‘omission’ and is presumed to be done without intent to end the patient’s life, no matter that death is the inevitable consequence (see R (On the Application of Nicklinson and Anor) v Ministry of Justice [2014] UKSC 38 (‘Nicklinson’) at [304]). It is beyond the scope of this article to examine the (de)merits of the ostensibly artificial delineation between those acts. For instant purposes, it is sufficient simply to observe the arguably unrealistic expectation that medical practitioners providing assistance in dying under the VAD will not act with the intent to cause death given that that is, ultimately, the objective of both prescribing and, certainly, administering the lethal substance.

The s 83 offence is reflective of the broader approach taken in the VAD to ‘safeguarding’ individuals. Another apt illustration of the VAD’s emphasis on protection is its unique prohibition on medical practitioners initiating discussions with patients about accessing assistance in dying (s 8(1)). In addition to prohibiting the initiating of such conversations, the VAD also mandates that practitioners who become aware of a colleague who is violating that restriction report the conduct to AHPRA (s 75). The content of this obligation is extremely broad, while failure to make a report is to be deemed ‘unprofessional conduct’ (s 75).

Conclusion to Part I

The preceding overview of the VAD illustrates the extensive lengths both Houses of Parliament went to in order to safeguard against abuses and to ensure that ‘vulnerable’ individuals are not exposed to the risk of being pressured into accessing assisted dying under the VAD. The experience of the Victorian Parliament has itself drawn on the experiences of the various permissive jurisdictions in designing an assisted dying scheme which respects the autonomy and self-determination of individuals who want to obtain assistance in dying while also protecting the lives of the vulnerable. This will surely be of interest to any other jurisdictions contemplating introducing assisted dying (including, for instance, New South Wales and New Zealand).

Given, however, that Victoria has a Charter of Human Rights and Responsibilities (‘the Charter’), which featured heavily in the debate surrounding the introduction of the VAD, the Victorian experience ought to be of particular interest to the British Parliament and courts currently examining the compatibility of the UK’s blanket ban on assisted suicide with the European Convention on Human Rights (‘ECHR’). It is this potential crossover that will be explored in Part II.