Victoria – from leader to laggard in Voluntary Assisted Dying

Listed below are the issues we consider to be problematic with our current VAD legislation. We think that they should be addressed as soon as possible. Unfortunately, we have been told that the 5-year VAD review that we all hoped would bring about some important changes to the legislation will, instead, focus solely on operational matters. Despite this, DWDV is working hard to ensure that these problems will be corrected.

There are a also number of other serious issues in the current legislation that require thoughtful review and legislative remedy.  We should not waste the opportunity presented in the current review for doing a proper and thorough analysis.  If we let this opportunity go, when will we have the chance to bring our Victorian legislation at least up to national, let alone international, best practice?

John Hont
Former VP, Dying With Dignity Victoria

From leader to laggard

In 2017 Victoria achieved a historic milestone with the passing of the Voluntary Assisted Dying Act, which came into operation in June 2019. This was a huge step in Australia, following 50 earlier unsuccessful attempts to pass voluntary assisted dying (VAD) legislation. Since then, all other Australian states have followed, passing legislation largely based on ours.

In the process, these other states have made improvements over our Act, in general providing greater access to VAD than that available in Victoria. ACT and NT are expected to follow soon, with legislation that is likely to be radically broader in scope than Victoria’s. After leading the way, we now risk falling behind.

A review of the operation of the Voluntary Assisted Dying Act 2017 to commence in July this year has been proclaimed, though terms of reference are yet to be disclosed. Unfortunately, the Health Minister has stated that the review will not consider any changes to the legislation. Instead, it will evaluate the systems, processes and practices which underpin the operation of the Act. This is an unnecessarily narrow interpretation of the review process specified in the Act, and squanders the opportunity to improve the legislation based on four years of experience and learning.

The fundamental purpose of the Act is to relieve suffering, when alternatives are likely to be ineffective or unacceptable to the person. The Act applies safeguards, in the form of eligibility criteria, to provide safety to potentially vulnerable persons and to ensure that people do not use its facilities to end lives unnecessarily. While safeguards are necessary, they also act as restrictions, limiting access to VAD to a relatively small group.

Prognosis requirement

A significant example of this is the prognosis requirement, which limits eligibility to VAD to persons expected to live 6 months or less (or 12 months in the case of neurodegenerative disorders). This limit thus excludes people who would otherwise qualify for access to an assisted death, but have a longer prognosis. Yet suffering is not limited to people who are close to death. This part of the legislation means that some people will live with untold suffering that can be extreme and prolonged. It makes no sense to have this limitation and leave people suffering without relief. Current best practice in Australia is in Queensland, which has a 12-month prognosis to death requirement for all conditions, while the ACT will be considering legislation in the next few months with no prognosis limitation at all, as is the case in the legislation of many overseas jurisdictions, including Canada.

Gag clause

Another problematic feature of the current legislation is that health practitioners are not permitted to initiate discussion about VAD with patients. Only South Australia adopted our approach. The other states only require that if a health practitioner initiates such discussion, they must also discuss all relevant alternatives. But this is standard practice for practitioners when facing any issue – they normally canvass all treatment possibilities to ensure informed consent.

Yet by enforcing such a gag clause, authorities are essentially treating doctors as untrustworthy actors, diminishing their role as advocates for patient well-being. The expectation that patients should independently educate themselves on treatment options introduces a concerning shift in the dynamics of healthcare. It can disadvantage many groups, based on health literacy as well as cultural and language barriers. The gag clause undermines the fundamental aspect of the patient-doctor relationship, casting doubt on the integrity of medical professionals. It also entrenches a culture of silence around voluntary assisted dying, which fuels stigma towards people seeking VAD.

Residency requirements

With nearly all of Australia now covered, or soon to be covered, by VAD laws similar to ours in Victoria, it makes no sense to limit VAD access in Victoria to those normally resident in Victoria. This is yet another unnecessary restriction that needs to be removed from our legislation.

Method of administration

In Victoria, the default position is self-administration. The VAD patient is required to swallow an oral medication, unless not capable of doing so, in which case a medical practitioner can provide intra-venous administration of the substance. In other states there is more flexibility for the patient to choose the type of administration, which removes the insecurity and anxiety of someone being required to mix the medication and taking it on their own, clearly without any previous experience.

Administration permit

In Victoria, the coordinating medical practitioner is required to apply for a VAD permit for administration after having determined eligibility of the person. Other states have removed this time-consuming, unnecessary bureaucratic step in the process. Note that many people in Victoria die in suffering while waiting for the completion of the VAD process.

Specialist assessment

Section 10 (3) of the Victorian VAD Act requires:

“Either the co-ordinating medical practitioner or each consulting medical practitioner must have relevant expertise and experience in the disease, illness or medical condition expected to cause the death of the person being assessed.”

This has been interpreted to require a specialist to be one of the medical practitioners in the assessment process. With the federal ban on telehealth, it thus greatly limits the ability of a person to obtain an eligibility assessment, particularly in regional and remote areas.

Non-participation by facilities

Victoria’s legislation is silent on institutional participation in VAD, with the result that many Victorians have experienced considerable additional suffering due to institutional objections to VAD (see, for example, this article). As the Act currently stands, hospitals, residential aged care facilities, hospices, and other facilities may refuse to participate in VAD – either entirely, or in relation to specific aspects of VAD (e.g., they may allow eligibility assessments to occur on their premises, but not administration). The VAD laws in South Australian, Queensland and New South Wales contain detailed provisions addressing institutional objection to VAD, which aim to balance the competing interests of individuals wishing to access VAD with those of non-participating facilities. Although Victoria sought to address this issue through a policy approach, this has patently failed to protect people seeking access to VAD. A legislative approach is the optimal regulatory response.

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