Tasmanian Parliament Considers End of Life Choices (Voluntary Assisted Dying) Bill 2020

Thursday 12 November 2020 @ 3.21 p.m. | Legal Research

The End of Life Choices (Voluntary Assisted Dying) Bill 2020 (TAS) (the Bill) was introduced into the Tasmanian Legislative Council by the independent member Michael Gaffney. The Bill has passed the Council with amendments and has been read a first time in the Assembly. In broad terms, the Bill proposes an Act to provide for, and regulate access to, voluntary assisted dying, to establish the Commissioner of Voluntary Assisted Dying (VAD), and for purposes related to those matters. The Bill follows on the coming into operation in Victoria and Western Australia of similar legislation, with legislation also proposed in NSW.

Bills Objectives and Principles

The Bill, according to the second reading speech, sets out the objectives and principles of the proposed Act as follows:

The objectives are:

  • to provide, to persons who are eligible to access voluntary assisted dying, an efficient and effective process to enable them to exercise their choice to reduce their suffering by ending their lives legally;
  • to ensure that the process provided for the exercise of that choice protects and prevents persons from having their lives ended unwittingly or unwillingly;
  • to provide legal protection for registered health practitioners who choose to assist, or who choose not to assist, such persons to exercise their choice to end their lives in accordance with that process.

A person exercising a power or performing a function under the proposed Act must have regard to the following principles:

  • every human life has equal value;
  • a person’s autonomy, including autonomy in respect of end of life choices, should be respected;
  • 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 and treatment;
  • a person approaching the end of life should be provided with high quality care and treatment, including palliative care and treatment, to minimise the person’ suffering and maximise the person’s quality of life;
  • a therapeutic relationship between a person and the person’s registered health practitioner should, wherever possible, be supported and maintained;
  • a person should be encouraged to openly discuss death and dying, and the person’s preferences and values regarding their care, treatment and end of life should be encouraged and promoted;
  • a person should be supported in conversations with the person’s registered health practitioner, family and carers and community about treatment and care preferences;
  • a person is entitled to genuine choices about the person’s care, treatment and end of life, irrespective of where the person lives in Tasmania and having regard to the person’s culture and language;
  • a person who is a regional resident is entitled to the same level of access to voluntary assisted dying as a person who lives in a metropolitan region;
  • there is a need to protect persons who may be subject to abuse or coercion;
  • all persons, including registered health practitioners, have the right to be shown respect for their culture, religion, beliefs, values and personal characteristics.

Proposed Eligibility Criteria

The eligibility criteria in the proposed Bill are stated as follows:

  • Age is the first criteria, the person seeking to rely on the legislation must have attained the age of 18 years.
  • The person must meet residency requirements, that is, Australian citizenship, permanent residency of Australia or residency in Australia for at least 3 continuous years, and ordinarily resident in Tasmania for at least 12 months immediately before making the first request.
  • The person must be assessed as having decision-making capacity which is to be assessed at every stage of the VAD process where the eligibility criteria are determined. Section 11 of the Bill, provides that a person has decision-making capacity when the person has the capacity to:

(a) understand the information or advice that is reasonably required in order to be able to make the decision; and

(b) remember such information or advice to the extent necessary to make the decision; and

(c) use or evaluate the information or advice for the purposes of making the decision; and

(d) communicate the decision, and the person’s opinions in relation to the decision, whether by speech, in writing, by gesture or by other means.

The decision-making capacity is something that doctors are to assess on an everyday basis as part of their practice. The assessment process will reflect current clinical practices in Tasmania.

  • The person must be deemed to be acting voluntarily and voluntariness is, according to the second reading speech, "a core principle" of the Bill.
  • The person is suffering intolerably in relation to a "relevant medical condition". The Bill defines a relevant medical condition as follows:

 "a disease, illness, injury or medical condition, of the person that is advanced, incurable and irreversible and is expected to cause the death of the person"
 [see S5-1]

 "a disease, illness, injury or medical condition, of a person is incurable and irreversible and is expected to cause the death of the person if there is no reasonably available treatment that: is acceptable to the person AND can cure or reverse the disease, illness, injury or medical condition and prevent the expected death of the person from the disease, illness, injury or medical condition" [see S5-2].

Administrative Functions, Processes 

The Bill in Part 15 provides for the review of decisions and eligible applicants may apply to the Commissioner of VAD for a review of a decision. The Commissioner has the authority to review and make decisions on applications under the Part 15, but may also "state in the form of a special case for decision by the Supreme Court any question of law that may arise in the hearing of, or determination of, an application". Similarly, a party to proceedings who is aggrieved by a determination of the Commissioner may appeal to the Supreme Court against the decision.

The Commissioner for VAD is also responsible for keeping records of any notices, requests or other documents provided to the Commissioner and must provide an annual report to the Minister, who will then table same within 5 sitting days after receiving the report. Part 17 also contains details of another safeguard, in that a person who suspects any contravention of the Act may notify the Commissioner.

The Bill contains an extensive outline of offences and penalties, see Parts 122-130. 

Comments and Reaction

The ABC News reports that Mr Gaffney argues the Bill is different from previous legislation on assisted death tabled in Tasmania because it is "a lot more detailed." Mr Gaffney is reported as having voted against that legislation, because:

"It wasn't robust enough, it wasn't in-depth or thorough enough that it could actually pass as a piece of legislation . . . ".

The legislation is reported to be backed by the Council of the Aging, who agree the Bill has adequate safeguards in place to prevent wrongful deaths. CEO Sue Leitch is reported as saying:

"It's not an immediate decision that someone can take, there are steps in the process to re-check whether this is the right thing for them, . . . This is only part of the equation of course — we need a good palliative care system, we need good health measures in place and we need people to be clear with their families what their choices are, . . .".

The ABC News reports that the Tasmanian branch of the Australian Medical Association "is worried about doctors' involvement in the process". The  AMA Tasmania President Helen McArdle is reported as saying:

"We don't support physician-assisted suicide, which is basically what it is,... The Bill as it stands is really physician-assisted suicide and we don't support that  . . . we don't agree that a doctor should ever do any action with a primary purpose of ending a person's life, . . .".

The ABC News has reported that debate on the Bill will not conclude until March 2021, when the University of Tasmania is to deliver a report on the proposed legislation and the Tasmanian Government has scheduled an extra sitting day in December 2020 to begin the debate.

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