Euthanasia in Victoria — Part One

What’s really being proposed?

This is the first in a three-part series exploring the Victorian voluntary assisted dying laws.

Last month the Victorian government introduced voluntary assisted dying legislation to parliament, which has set off a vigorous and heated public debate. The bill will go to a conscience vote — meaning that MPs don’t have to vote along party lines — later this month.

The idea of helping somebody to die has always been controversial. Many euthanasia supporters are driven by harrowing personal experience, having watched loved ones suffer terribly in their final weeks or months. Some opponents see the concept as little more than state-sanctioned killing, while others fear that it will erode the foundation of the doctor-patient relationship.

With so much passion involved, advocates on both sides of the debate have made big claims about the potential impact of the legislation, but what does the bill actually say?

In its 126 pages, the catchily-titled ‘Voluntary Assisted Dying Bill 2017’ addresses not just the who, when and how of assisted dying, but also potential liabilities and offences under the new law, as well as the regulation of the drugs that will be involved.

The bill’s purpose is: “to provide for and regulate access to voluntary assisted dying.” But it would also establish a Voluntary Assisted Dying Review Board. This board would oversee assisted dying in the state, which would include training doctors about the new law, reporting issues to the Minister for Health, and possible offences to the State Coroner or Victoria Police.

Whilst opponents of the law have described it as “dangerous” and part of a “slippery slope, the government has trumpeted it as “the most conservative in the world”. Much has been made of the 68 safeguards that have been included to avoid misuse or abuse, yet some have said that the mountain of safeguards simply prove how dangerous the law will be.

So, how easy will it be to access voluntary assisted dying?

A person must be over 18 to be eligible. They must have an advanced, progressive, incurable and terminal illness that is expected to cause death within 12 months and is causing suffering that is intolerable and cannot be relieved in any other way. In comparable systems four out of every five people who access assisted dying are end-stage cancer patients.

Part one of the assisted dying process

A person can make a first verbal request for assisted dying to their doctor. This request must be made by the person themselves and be clear and unambiguous. The doctor must accept or refuse the request within seven days. On acceptance, the doctor becomes the coordinating medical practitioner for the person. The doctor then performs a detailed assessment to make sure the person meets the assisted dying criteria. If the doctor does not have the specialist knowledge to make a decision — either regarding the person’s decision-making capacity, or the nature of their disease — that doctor must refer the person to a specialist doctor who can make a decision.

If the doctor is satisfied that the person meets all criteria and has decision-making capacity, they then must inform the person about the following:

- The person’s diagnosis and prognosis

- The other treatment options available to the person

- The palliative care options available to the person

- The potential risks of taking the substances likely to be prescribed under the assisted dying law

- The expected outcome of taking such substances

- That at any time the person can decide not to continue the request and assessment process

Informing the person of these facts is repeated at each step of the process to ensure the person still wishes to proceed.

A person can then make a written declaration, in the presence of two witnesses, requesting access to assisted dying. Only one witness can be a family member of the person making the declaration and neither witness can be a beneficiary in the person’s will.

Once the written declaration has been made a person can make a final request for assisted dying. This request must be made at least 9 days after the first request unless the coordinating doctor believes that the person will die before that period elapses. A contact person is then appointed who becomes responsible for notifying the doctor in the event of the person’s death.

Part two of the assisted dying process

The coordinating doctor then performs a final review of the person’s case and previous requests, which is passed on to the Voluntary Assisted Dying Board.

It is only at this point that the doctor can prescribe a lethal substance under the law. The substance must be kept in a locked box until used and any unused substance must be returned to the pharmacy by the previously-appointed contact person.

It is possible for a person to apply to VCAT if they suspect that a person requesting access to assisted dying is either:

- Not a Victorian resident, or

- Doesn’t have decision-making capacity to request assisted dying

This person must have a special interest in the medical care of the person concerned. Importantly, any person who acts in good faith in assisting a person to access voluntary assisted dying, is immune from criminal prosecution, even if doing so is an offence in common law or under other statutes.

Doctors who do not adhere to the strict guidelines outlined above risk life in prison. Any attempt to coerce or trick a person into requesting assisted dying risks a five-year prison sentence, as does any attempt to falsify any form related to the assisted dying process.

Looking at the law in detail, it is extremely narrow. The eligibility criteria are so stringent that only a small percentage of people will be able to access assisted dying. Many have expressed concern that the rules will be bent or broken, yet the heavy penalties make doing so very risky, especially for doctors.

The bill mandates a process in which the person requesting assisted dying is repeatedly reminded of alternative options and that they can stop the process at any point. Doctors, meanwhile are required to look out for any signs of manipulation or coercion. While it is difficult to say whether this law is the most conservative in the world (the law in Oregon is very similar), it is about as conservative as any such law could be.