Assisted dying legislation has successfully passed the Victorian Parliament after marathon sitting sessions by both the Legislative Assembly and Legislative Council.

The legislation will allow people suffering intolerable pain to obtain access to voluntary assisted dying from 2019. Eligible persons must have less than six months to live, with specific exemptions for people who suffer chronic conditions such as motor neurone disease and multiple sclerosis who will have access to the scheme in their final 12 months.

The legislation contains 68 safeguards, including new criminal offences to protect vulnerable people from abuse and coercion into physician assisted dying. It is expected that once operational, the scheme may assist around 150 Victorians per year.

Amendments to the draft Bill

The Legislative Council (upper house of Victorian Parliament) made a number of amendments to the draft legislation last week. These amendments include:

  • Decreasing the requirement for the terminal illness to cause death within 12 months to 6 months, except in the case of neurodegenerative diseases or illness which will remain 12 months;
  • A requirement imposed on medical practitioners to refer to specialist medical practitioners for neurodegenerative diseases or illnesses for assessing how long the person has to live;
  • A legislated encouragement for a person who is seeking access to voluntary assisted dying to notify practitioners from whom they are receiving other ongoing health services of their request to seek voluntary assisted dying;
  • A requirement, if the patient consents, imposed on the co-ordinating medical practitioner to take reasonable steps to inform a member of the patient’s family about clinical guidelines and a plan in respect of self-administration;
  • A requirement to refer a patient to a registered health practitioner with appropriate skills, such as a psychiatrist, where the patient has in the past or currently has ongoing mental health issues, to determine whether the requesting patient has capacity to consent;
  • A requirement that any unused drugs are returned by the patient’s contact person to the dispensing pharmacy within 15 days rather than 30 days’ of the patient’s death, and a comparable change to the relevant offence provision;
  • A requirement of a registered medical practitioner responsible for the patient’s care before death, or who examined the body of deceased after death, to notify the coroner of the terms of: the patient’s voluntary assisted dying permit, use of a permitted substance under that permit, non-use of a permitted substance specified under that permit, or if subject to a practitioner administration permit, that the permit was used, and the disease, illness or medical condition the person had;
  • The addition of a ground of review to VCAT for denial of an assisted dying permit if a patient was not ordinarily resident in Victoria for at least 12 months at the time of making a first request;
  • An additional determination for VCAT that a person was or was not ordinarily resident in Victoria for at least 12 months after making the first request; and
  • A change to the manner of recording the death in the Births, Deaths and Marriages register.

How will it work?

With the changes now finalised and the scheme settled, below is a summary of the eligibility and processes which govern access to voluntary assisted dying in Victoria.

Eligibility

The eligibility requirements under the scheme are very strict. The scheme will only be available to Victorians who:

  • have been ordinarily resident in Victoria for at least 12 months;
  • are over the age of 18 and are capable of making decisions; and
  • are diagnosed with an incurable disease, illness or medical condition (which is not only a mental illness or disability), which causes intolerable suffering and is expected to cause death within 6 months (or 12 months if that illness is a neurodegenerative disease).

Accessing voluntary assisted dying

Persons wishing to access voluntary assisted dying must undertake a number of steps as follows, and are able to withdraw from the scheme at any time:

  • A person must personally make a clear and unambiguous first request to a medical practitioner for access to voluntary assisted dying.
  • Within 7 days of making the request, the medical practitioner must either accept or refuse the request. Medical practitioners may only refuse the request if the medical practitioner:

- has a conscientious objection to voluntary assisted dying;

- is unavailable to co-ordinate the request; or

- does not hold the required qualifications (discussed below).

  • If the request is accepted, this practitioner becomes the “co-ordinating” medical practitioner and must assess whether the person is eligible and includes the possibility of referral to a specialist for assessment.
  • If a person is assessed as eligible, the co-ordinating practitioner refers the matter to another practitioner, the “consulting” medical practitioner, who then repeats the same assessment process to determine eligibility.
  • Upon being assessed as eligible by both the co-ordinating and consulting medical practitioners, a person may make a written declaration requesting access to voluntary assisted dying. The written declaration must be witnessed, but cannot be witnessed by a beneficiary under the person’s will or anyone else who may financially benefit.
  • A person may then make a final request to their co-ordinating medical practitioner for access to assisted dying and appoint a contact person.
  • The co-ordinating medical practitioner may then apply for a voluntary assisted dying permit for the person.

A voluntary assisted dying permit allows a person to self-administer (or if the person is incapable, have a medical practitioner administer) a substance which is prescribed by the co-ordinating medical practitioner. Once the prescription is filled, the substance must be kept in a locked box.

Any unused substance must be returned to the pharmacy by the contact person within 15 days after the person dies or does not self-administer.

Practitioner Obligations

The voluntary assisted dying scheme is designed to require the patient to take control of the decision. As such, registered health practitioners must not initiate a discussion with patients about, or suggest to patients, voluntary assisted dying. Health practitioners who engage in this conduct will be guilty of unprofessional conduct under the National Law.

Only experienced medical practitioners will be able to assist persons to access the scheme, with a minimum requirement that all co-ordinating and consulting medical practitioners hold a fellowship from a specialist medical college or be a vocationally registered general practitioner. There is also a further requirement that least one of the practitioners has practised for five years, and that either the consulting or co-ordinating practitioner must have expertise in the disease, illness or medical condition.

Registered health practitioners and their employers will also have mandatory reporting obligations, requiring them to report to Australian Health Practitioner Regulation Agency (AHPRA) if they believe another practitioner is initiating discussions or offering to assist a person to access voluntary assisted dying in a way that does not comply with the legislation. The public may also make voluntary notifications to AHPRA of this type of conduct.

The legislation protects registered health practitioners who act in good faith and without negligence, by stating they will not be subject to any liability provided they act in accordance with the scheme as set out in the legislation.

Persons, including health practitioners, who administer the substance with the intention of causing death other than in accordance with the voluntary assisted dying permit are guilty of an offence attracting a maximum life prison sentence. Persons or corporations who induce a person to access the voluntary assisted dying scheme are also guilty of offence which may attract a fine or up to 5 years imprisonment.

Health practitioners will also be subject to rigorous reporting requirements under the new legislation.