One of the objections about assisted dying legislation is that vulnerable people will die, through coercion, because they feel like a burden on their families, for financial gain, or because their care is expensive or onerous. These are valid concerns to have – we know that there are unscrupulous people who take advantage of even their own relatives, that not all health practitioners are wholly ethical, and that there are financial pressures on health facilities at every level. And many of us have heard reports from overseas about people who didn’t meet the criteria being killed under the auspices of assisted dying laws, or weren’t reported to the government. While on closer examination these reports invariably turn out to be distortions or unsubstantiated allegations, a topic I may address at another time, the fear they address is a reasonable one – even if they haven’t happened, they could.
Last week, when I briefly summarised the final report of the voluntary assisted dying expert advisory panel, I mentioned some of the 68 safeguards that are in place. Today I’ll go into detail about the requirements and regulations that will be implemented to prevent this legislation being misused.
The first six safeguards ensure that requesters meet all of these threshold requirements before the process starts. They must:
• be eighteen or older (this law will not apply to minors),
• be resident in Victoria (people can’t travel here to die with assistance),
• be competent to make significant medical decisions (using the same standard the Medical Treatment Act, 2016, requires),
• have a life-limiting condition, illness, or disease (e.g. metastatic cancer, end-stage heart failure, motor neurone disease),
• have a prognosis of twelve months or less (their death is inevitable, and not distant), and
• be ‘experiencing enduring and unbearable suffering that cannot be relieved in a manner the person deems tolerable’ (e.g. for that person it may not be acceptable that the only analgesic dose sufficient to make their pain bearable makes them unconscious),
Note that a person must meet all of these criteria before the process of assessment can begin; in contrast, in the US people do not need to be suffering, while in Europe it isn’t required that they be dying.
The legislation specifically notes that disabilities and mental ill-health are neither barriers to, nor reasons for, voluntary assisted dying. In other words, someone may not access assisted dying because they have, for example, significant cerebral palsy, or are paraplegic, or have clinical depression, or schizophrenia – the requirements for a life-limiting illness, condition, or disease, a terminal prognosis of under a year, and enduring suffering, apply universally. Conversely, people who meet all the other criteria cannot be deemed ineligible because of a physical disability or mental ill-health.
The rest of the safeguards are divided into areas of protection. First are measures to ensure that the request process is voluntary:
• health practitioners are prohibited from bringing up the option of assisted dying with their patients – it must come from them,
• nobody except the person can request on their behalf, even someone with medical power of attorney and an advanced directive demonstrating that this is what they want,
• there must be three requests, over at least ten days, one of which must be written, and witnessed by an independent person, and
• the person can change their mind at any time, including after the prescription has been filled.
Next is the process of assessment, which is clearly and tightly described:
• two independent, experienced medical practitioners must separately assess the person (overseas this typically takes 60-90 minutes per consultation),
• only doctors who have undertaken specialized VAD training may be involved,
• the two assessing doctors are designated the coordinating practitioner and the consulting practitioner, each with well-defined duties, and
• either doctor may, and is obliged to, refer the patient to a mental health professional if they have concerns about the person’s decision-making capacity,
There have been concerns about prescribed medication going missing or being taken accidentally. To that end, the following measures will be introduced:
• the prescribing doctor must have a specific permit,
• the patient must nominate a contact person who agrees to take responsibility for returning the medication to the dispensing pharmacist if it is unused,
• from the time it is dispensed until it is taken or returned, the clearly labelled medication must be stored in a locked box,
• if the patient is unable to self-administer (e.g. is unable to swallow, has restricted arm movement), the coordinating doctor (and only the coordinating doctor) may administer the medication, and
• in that case the doctor must have additional certification, and the administration must be witnessed by someone who is independent of the doctor.
Unsurprisingly, health professionals, particularly doctors and nurses, have concerns about their roles, from being forced to perform acts with which they object, to being prosecuted. To protect them,
• health practitioners may conscientiously object to participating,
• there are protections for health practitioners who are present at the time of administration, and
• health practitioners will be required to report any practitioner acting outside the legislation.
There was a question raised about criminal consequences for health professionals who act outside the scope of the legislation – initiating a discussion about the option of assisted dying, for example. That is not specifically addressed, as there are already consequences for health practitioners who break the law or otherwise act in breach of the standards of each registered profession (one of which includes following the law), and charges of manslaughter and murder are not affected by the introduction of voluntary assisted dying legislation – it is still a crime to aid or to abet a suicide, or bring about someone’s death, except for the carefully delineated circumstances surrounding this Act. There will, however, be new laws introduced: failing to report any step, inducing or influencing a person to request or participate in assisted dying, and falsifying reports to the oversight and review panel will be criminal offences.
Finally, there have been allegations that not all deaths overseas that take place under the auspices of an assisted dying framework are reported or investigated appropriately. In Victoria, part of the process includes the creation of an independent multidisciplinary oversight and review panel. They are notified at every step of the process, from the first formal request to notification of death. Included in this process is notification whenever a prescription written to assist dying is filled. The patient’s contact person is tasked with returning the medication when the patient dies, if it was not used; if they fail to do so, the panel is empowered to follow up with them about the location of the medication, and ensure it is safely accounted for.
The oversight and review panel’s role will be enshrined in legislation, and it will have the capacity to refer breaches of the legislation to the appropriate authorities, from the health regulator AHPRA to the police. The panel will review every case, transparently report publicly, and publish a review after five years.
The expert advisory panel estimates that it will take eighteen months to set up all of the required safeguards (e.g. medical education) and legislative changes, before the first requests can be made.
But first the Bill has to get through both Houses of parliament. Which is where you can come in: if you support the legislation and you live in Victoria, please contact your lower and upper house MP’s to let them know – they can’t represent their constituents if they don’t know what you want.