Victorian Parliament Passes Voluntary Assisted Dying Bill

Thursday 30 November 2017 @ 11.20 a.m. | Legal Research

Yesterday, the Victorian Legislative Assembly agreed to the amendments made by the Legislative Council and passed the Voluntary Assisted Dying Bill 2017 (the Bill), allowing for the assisted dying of those who are terminally ill and in intolerable pain from 2019. The Bill passed after over 100 hours of debate across both houses which included two overnight sittings.

Premier Daniel Andrews stated after the Bill was passed: “I’m proud today that we have put compassion right at the centre of our parliamentary and our political process.”

The Voluntary Assisted Dying Bill 2017

The Bill was introduced after a lengthy consultation process by the Ministerial Advisory Panel on Voluntary Assisted Dying, released on 21 July 2017. The 265 page final report sets out the Panel's recommendations for access to voluntary assisted dying for a limited number of adult Victorians who are at the end of their lives and suffering. The Bill was presented as a means of implementing the recommendations of this report.

The Voluntary Assisted Dying Bill operates (s 1):

(a)    To provide for and regulate access to voluntary assisted dying; and

(b)   To establish the Voluntary Assisted Dying Review Board; […]

Voluntary assisted dying is defined in section 3 of the Bill as meaning “the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration”. A substance which falls under this definition is 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”.

In administering this treatment, the Bill supplies a number of principles that the person exercising the power provided for in the Act must have regard to (s 5). These principles include that (1):

(a) every human life has equal value;

(b) a person’s autonomy should be respected;

(c) a person has the right to be supported in making informed decisions about the person’s medical treatment, and should be given, in a manner the person understands, information about medical treatment options including comfort and palliative care;

(d) every person approaching the end of life should be provided with quality care to minimise the person's suffering and maximise the person's quality of life; and […]

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

With regards to these principles, access to voluntary assisted dying may only be granted in certain circumstances, prescribed by section 6. These are where:

(a)    The person has made a first request; and

(b) the person has been assessed as eligible for access to voluntary assisted dying by—

              (i) the co-ordinating medical practitioner for the person; and

              (ii) a consulting medical practitioner for the person; and

(c) the person has made a written declaration; and

(d) the person has made a final request to the co-ordinating medical practitioner; and

(e) the person has appointed a contact person; and

(f) the co-ordinating medical practitioner has certified in a final review form that the  request and assessment process has been completed as required by this Act; and

(g) the person is the subject of a voluntary assisted dying permit.

Importantly, to whether voluntary assisted dying will be permitted under the legislative scheme is whether a person has decision making capacity, defined in section 4:

(1) A person has decision-making capacity in relation to voluntary assisted dying if the person is able to—

(a) understand the information relevant to the decision relating to access to voluntary assisted dying and the effect of the decision; and

(b) retain that information to the extent necessary to make the decision; and

(c) use or weigh that information as part of the process of making the decision; and

(d) communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

(2) For the purposes of subsection (1), a person is 10 presumed to have decision-making capacity unless there is evidence to the contrary.

(3) For the purposes of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(4) In determining whether or not a person has decision-making capacity, regard must be had to the following— (a) a person may have decision-making capacity to make some decisions and not others; (b) if a person does not have decision-making capacity to make a particular decision, it may be temporary and not permanent; (c) it should not be assumed that a person does not have decision-making capacity to make a decision— (i) on the basis of the person's appearance; or (ii) because the person makes a decision that is, in the opinion of others, unwise; (d) a person has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support. […]

(5) A person who is assessing whether a person has decision-making capacity for the purposes of this Act must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision-making capacity can be most accurately assessed.

While making allowance for the provision of voluntary assisted dying, the Bill also provides for the conscientious objection of the procedure by registered health practitioners in section 7, ensuring that the registered practitioner may refuse to assist in or provide for the treatment on the reasons of conscientious objection.

Other safeguards that the Bill provides are in the process of applying for and obtaining the voluntary assisted dying treatment. The treatment must be initiated by the patient (s 8); the registered medical practitioner must accept the request (Part 3 Division 2); once accepting the request, the Doctor must ensure that the patient meets the eligibility criteria (Part 3 Division 3); they must then hold a consulting assessment (Part 3 Division 4); present a written declaration (Part 3 Division 5) and the patient must provide a final request, contact person and final review by co-ordinating medical practitioner (Part 3 Division 6).

Additionally, as per the eligibility criteria in Part 2, [s 9(2)]: "A person is not eligible for access to voluntary assisted dying only because the person is diagnosed with a mental illness”. As such, if a doctor suspects the patient of having a mental illness, they must be referred to a psychiatrist."

Other important provisions in the Bill are amendments to certain other Acts, allowing for Voluntary Assisted Dying in the current legislative system. These amendments are to: the Births, Deaths and Marriages Registration Act 1996 (Part 11 Division 1); the Coroners Act 2008 (Part 11 Division 2); the Drugs, Poisons and Controlled Substances Act 1981 (Part 11 Division 3); the Health Records Act 2001 (Part 11 Division 4); and the Medical Treatment Planning and Decisions Act 2016 (Part 11 Division 5).

Amendments of the Legislative Council

In passing the Bill, the Legislative Assembly had to approve a number of amendments made by the Legislative Council. These amendments included changing the expected date of death as caused by the illness or medical condition in section 9 from 12 months to 6 months.

Additionally, they inserted a number of provisions refining the requirements of Medical Practitioners in certain situations, particularly where the patient is diagnosed with [s 18]:

a disease, illness or medical condition that is neurodegenerative in accordance with section 9(4) that—

(a) will cause death; and

(b) is expected to cause death between 6 and 12 months— the co-ordinating medical practitioner must refer the person to a specialist registered medical practitioner who has appropriate skills and training in that particular disease, illness or medical condition that is neurodegenerative, whether or not the coordinating medical practitioner had also made a referral under subsection (2).

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Voluntary Assisted Dying Bill 2017: Bill, Explanatory Materials and Second Reading Speeches available from Timebase LawOne.

Victoria becomes first state to legalise assisted dying as parliament passes bill (Melissa Davey, The Guardian Australia, 29 November 2017)

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