Marcus Frajman, Accountant at Paul Marc Masons and Law Graduate, and Katerina Peiros, Incapacity and Wills & Estates Lawyer-Director at Hartwell Legal, discuss the coming legalisation of euthanasia in Victoria. The new voluntary assisted dying laws will come into effect on 19 June.
Katerina will present on the topic, Duties of Solicitors Towards Will-Maker Clients, at the CPD Compulsory Areas for Succession Practitioners Conference on Thursday, 28 March in Melbourne.
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A carefully crafted piece of legislation legalises euthanasia in Victoria under strict supervision for a narrow group of patients who have run out of choices and who want to depart with dignity on their own terms.
New legislation will come into effect in Victoria on 19 June 2019, providing a strictly regulated avenue by which patients in the late stages of an advanced disease may end their lives. The Voluntary Assisted Dying Act[1] was passed by the Victorian Parliament on 29 November 2017 after heavy consideration and debate on the emotionally charged subject. With a series of hurdle requirements and a strict process to follow for eligible persons and medical practitioners, it is anticipated that voluntary assisted dying will be closely controlled and mitigate the risk of abuse or coercion.
The overarching principles of the legislation are that every patient approaching their end of life has a right to minimise suffering and maximise quality of life[2]. The Act encourages an open discussion of death and a patient’s autonomy, preferences and values are to be treated as genuine choices to be respected and promoted[3].
Eligible Persons
A person wishing to end their life due to pain and suffering impacting their health and quality of life must meet strict criteria. In order to access voluntary assisted dying, a person must be:
- aged 18 years or more; and
- an Australian citizen or permanent resident, and
- ordinarily resident in Victoria; and
- have lived in Victoria for at least 12 months prior to making the request; and
- capable of making the decision (ie capable of understanding the gravity and irreversibility of voluntary dying and expressing their free will by requesting it)[4]; and
- diagnosed with a disease, illness or medical condition that is incurable, advanced and progressive and will cause death within 6 months; and
- the condition causes suffering that cannot be relieved in a manner that the person considers tolerable. [5]
If the disease or condition is neurodegenerative and expected to cause death within 12 months, a person is also eligible for voluntary assisted dying.[6]
Procedure for Access to Voluntary Assisted Dying
If a patient meets the eligibility criteria, the person must make the “first request” to a medical practitioner (“coordinating medical practitioner”). The “first request” must be made by the patient personally to a registered medical practitioner, verbally or by other means of communication.[7] The medical practitioner must respond by either accepting or refusing the first request within 7 days.[8]
The medical practitioner must assess whether the person is eligible to access voluntary assisted dying.[9] The medical practitioner can only make this assessment if they have completed approved assessment training.[10] If satisfied as to the person’s eligibility, the medical practitioner must inform the person about various matters, including their diagnosis and prognosis and the voluntary assisted dying process.[11] If unsure about the person’s eligibility or whether the request is made without coercion and freely, the medical practitioner must refer the person to a specialist.[12] If assessed as eligible, the patient must be referred by the co-ordinating medical practitioner for a consulting assessment by another registered medical practitioner (“consulting medical practitioner”).[13]
Having been approved for the voluntary dying scheme by two practitioners, the patient must make a written declaration about their wish to access the scheme. The patient must declare that they make the request without coercion and understands the nature and effect of the declaration.[14] It must be signed by the person in the presence of two witnesses and the co-ordinating medical practitioner, who attest that the patient is signing freely and on full information about their choices. The witnesses cannot be beneficiaries under the will or involved in the delivery of health services to the person.[15] A maximum of one witness can be a family member of the patient.[16]
After the written declaration, the patient may make the final request for access to voluntary assisted dying either verbally or by other means of communication.[17] A final request must be made at least one day after the day on which the consulting assessment was completed.[18] The final request must also be at least 9 days after the making of the first request,[19] unless the co-ordinating medical practitioner considers that the patient’s death is likely to occur in that timeframe.[20]
After making the final request, the patient needs to appoint a contact person, who is responsible for returning any unused or remaining voluntary assisted dying substance.[21] The contact person must be aged 18 years or more and formally appointed.
After receiving the final request, the co-ordinating medical practitioner must review all the forms (first assessment report form, consulting assessment report forms, the written declaration and the contact person appointment form).[22] The next step for the co-ordinating medical practitioner is to complete the final review form and send to the Board.[23] The Act establishes the Voluntary Assisted Dying Review Board,[24] its members are distinguished experts who will ultimately grant the permits to the applicant for voluntary dying.
The many tiers of the system are designed to impress the gravity of the decision and its last resort nature on the patient, ensure the decision is the patient’s own and an exercise of their free will, as well as provide the requisite support in making the decision.
The paramount feature of the Act is the personal and non delegable nature of the request and ensuing process. The request cannot be made on behalf of a patient, such as by a medical treatment decision maker[25] or next of kin. The patient must embark on the course personally and of their own motion, voluntary dying cannot be suggested or facilitated (other than to the extent of facilitating communication for a patient who struggles with it for medical reasons).
The request must also be enduring or continuing, not subject to a change of mind or wavering certainty.
The process can be fast tracked depending on the patient’s medical prognosis and needs. The Act provides all the forms that must be used by the participants at every stage of the process.
Voluntary Assisted Dying Permits
Two types of voluntary assisted dying permits are available:
- Self-administration permit
This permit allows the co-ordinating medical practitioner to prescribe and supply the voluntary assisted dying substance for self-administration by the patient.[26] This permit is used if the patient is physically able to self-administer and digest the substance.[27] The co-ordinating medical practitioner and pharmacist must provide instructions and information to the patient about the assisted dying substance and their rights and duties.[28]
If a patient, the subject of a self-administration permit, loses physical capacity to self-administer or digest the substance, they can request the co-ordinating medical practitioner to apply for a practitioner administration permit.[29] This has the effect of cancelling the self-administration permit.
- Practitioner administration permit
This permit authorises the co-ordinating medical practitioner to prescribe and administer in the presence of a witness the voluntary assisted dying substance to the patient. This permit is only to be used if the patient is physically incapable of self-administration or digestion of the substance.[30]
Medical Practitioners
There are very precise and stringent compliance issues for medical practitioners involved in the process concerning voluntary assisted dying for their patients. Medical practitioners must be vocationally registered or a fellow with a specialist medical college.[31] They must also have at least 5 years of relevant experience, as well as expertise in the specific illness or condition expected to cause death.[32]
The legislation recognises that not all medical practitioners will be comfortable with voluntary assisted dying. Medical practitioners with a “conscientious objection” to voluntary assisted dying are entitled to refuse involvement at any level.[33] There is no requirement to refer the patient to another medical practitioner, which means that some patients may find it difficult to access the scheme if their medical practitioner does not provide any information at all and does not refer them elsewhere. Medical practitioners must either accept or reject a first request within 7 days after receiving it, if rejecting the request, the practitioner must provide reasons for doing so.[34]
Additionally, medical practitioners are not allowed to initiate discussions about voluntary assisted dying[35] or suggest it to a person[36] but they can provide information upon request.[37]
Undoubtedly, medical practitioners will struggle with the counter intuitiveness of helping a patient to die having given the Hippocratic Oath at the beginning of their career.
Review of Decisions
An eligible applicant may apply to VCAT for review of a decision about the decision making capacity of the person.[38] They can also apply for a review of various other eligibility criteria decisions made by co-ordinating or consulting medical practitioners, including the person’s residency status in Victoria.[39] An eligible applicant refers to a person the subject of a decision, their agent or a person with a “special interest” in the medical treatment and care.[40]
Oversight of the process and review
Apart from granting the permits, the Voluntary Assisted Dying Review Board is responsible for overseeing the implementation of voluntary assisted dying in Victoria and reporting bi annually to each House of Parliament about the each aspect of the operation of the Act[41]. Each House of Parliament table the report on the day it is submitted or on the first sitting day after that the report is submitted.
The Act will be reviewed by the Minister on the 5th anniversary of its commencement[42].
Death Certificates
The Death Certificates of patients who have successfully completed assisted voluntary dying will record the cause of death as the disease, illness or medical condition that was the grounds for accessing voluntary assisted dying and the manner of death as voluntary assisted dying[43].
Criminal Offences
A co-ordinating medical practitioner that knowingly administers a voluntary assisted dying substance other than in accordance with the practitioner administration permit is liable for a penalty of life imprisonment.[44] Life imprisonment is also the maximum penalty for a person that knowingly administers a voluntary assisted dying substance to another person.[45] A person must not falsify a form or record or make a false statement in a report or form.[46] Criminal liability may also be imposed on the officers of a body corporate or corporation that fails to exercise due diligence.[47] There are also broader offences for non medical practitioners, such as inducing a patient to request voluntary assisted dying, assisting a patient to administer the substance or failing to return the unused substance.
Although the Act creates almost 70 offences relating to the scheme, it also contains provisions which protect medical practitioners from liability if they act in good faith and on reasonable grounds.
Conclusion
Practically, the University of Melbourne estimated that about 150 patients will access the scheme every year[48]. The scheme will not be accessible by patients with dementia or a very slow progressing illness or disease. The scheme is designed for those facing a 6- 12 month decline towards death accompanied by subjectively intolerable suffering. The safeguards aim to ensure the process is voluntary and the patient can change their mind at any time.
This historic legislation makes Victoria the first Australian State to legalise voluntary assisted dying. In other jurisdictions such as Canada, Belgium, the Netherlands and some States in the US, it is also possible for people suffering from a disease that will cause their death to access assisted dying. The introduction of these new laws in June this year represent a new frontier in the doctor/patient relationship, as well as ethically and legally. There will need to be careful monitoring to analyse how voluntary assisted dying works in practice and to ensure that all the relevant safeguards are effective for patients, whilst also protecting the health and wellbeing of medical practitioners.
Katerina Peiros is the Principal of Hartwell Legal, a boutique practice. She practises exclusively in all aspects of estate planning, succession law and trusts, and is accredited as a specialist in these fields by the Law Institute of Victoria. Katerina has written widely on all aspects of estate planning, wills, powers of attorney, trusts, deceased estates and related disputes, including for LexisNexis, the Tax Institute of Australia, Law Institute of Victoria, CPA, and so on. Katerina is a member of the Tax Institute and the worldwide specialist Society of Trusts and Estate Practitioners, as well as a committee member of the Victorian Law Institute Succession Law Committee. Contact Katerina at kpeiros@hartwell-legal.com.au or connect via LinkedIn
Marcus Frajman, is an Accountant at Paul Marc Masons. He also holds a double degree in Law/Commerce from Monash University and a Graduate Diploma of Legal Practice (Practical Legal Training) from the College of Law. Connect with Marcus via LinkedIn
[1] Voluntary Assisted Dying Act 2017 (Vic).
[2] S.5
[3] S.5
[4] Ibid s 4(1).
[5] Ibid s 9(1).
[6] Ibid s 9(4).
[7] Ibid s 11.
[8] Ibid s 13(1).
[9] Ibid s 16.
[10] Ibid s 17.
[11] Ibid s 19(1).
[12] See s 18.
[13] Ibid s 22.
[14] Ibid s 34(2).
[15] See s 35(2).
[16] Ibid s 35(3).
[17] Ibid s 37(3).
[18] Ibid s 38(1)(b).
[19] Ibid s 38(1)(a).
[21] Ibid s 39(2)
[22] Ibid s 41(1)(a).
[23] Ibid s 41(1)(b).
[24] Ibid s 92.
[25] Ibid s 140
[26] Ibid 45(a).
[27] Ibid s 47(1).
[28] See s 57 and s 58.
[29] Ibid s 53(1).
[30] Ibid s 48(3)(a).
[31] Ibid s 10(1).
[32] Ibid s 10.
[33] Ibid s 7.
[34] Ibid s 13(1).
[35] Ibid s 8(1)(a).
[36] Ibid s 8(1)(b).
[37] Ibid s 8(2).
[38] Ibid s 68(1)(c).
[39] Ibid s 72.
[40] Ibid s 68(2).
[41] Ibid s 110
[42] Ibid s 116
[43] Ibid s 1991
[44] Ibid s 83.
[45] Ibid s 84.
[46] See s 87 and s 88.
[47] Ibid s 91.
