The Victorian government is expected to release its draft bill legalising assisted dying in the second half of this year, stemming from the government’s Parliamentary Inquiry into End of Life Choices (“Inquiry”), published in June 2016. With sweeping changes expected, now is an important time to reflect on the current legality of assisted dying in Victoria and how medical practitioners can expect their rights and obligations to change.

Current law in Victoria

Suicide in Victoria was decriminalised in 1967. However, it remains illegal to incite, aid and abet a suicide. Despite this, offenders, including medical practitioners, receive considerable leniency where they have assisted a person to die even though they clearly contravene the law. Victoria’s position is consistent with other Australian and International jurisdictions.

Despite its prohibition, some medical practitioners may practice unlawful assisted dying with full knowledge of the potential criminal charges they may face, including murder, manslaughter or inciting, aiding and abetting suicide. Medical practitioners also successfully invoke the doctrine of double effect as a legal defence to any charges relating to a patient’s death from excessive pain relief.

The doctrine of double effect means that it is lawful for medical practitioners to provide adequate pain relief, even if this has the unintended consequence of ending a patient’s life. The Australian Medical Association’s Code of Ethics states medical practitioners should provide treatment for pain and suffering ‘even when such therapy may shorten a patient’s life’. This is one way in which medical practitioners protect themselves by administering pain relief with the intention of relieving pain rather than hastening death. The doctrine of double effect has been legislated in Queensland, Western Australia and South Australia.

In addition, medical practitioners also regularly employ alternative lawful practices such as withholding and withdrawing futile medical treatment, and continuous palliative sedation through to the patient’s death. These are not considered assisted dying.

The Commonwealth Criminal Code provides that a person is prohibited from importing suicide related material and from using a carriage service in relation to suicide related material. Customs also prohibits importation of barbiturates such as Nembutal that can be used in assisted dying.

What is clear from the above summary is that under the existing legal framework patients at the end of their lives are largely reliant on what their medical practitioner may suggest or be willing to do. There are currently no criteria or safeguards implemented to provide certainty to both patients and medical practitioners.

The situation is further complicated by medical practitioners’ obligations under legislation relating to advance care directives and treatment certificates. Under the Medical Treatment Act 1988 (Vic)¹, a patient with a valid refusal of treatment certificate is entitled not to have the refused treatment performed on them upon losing capacity. In addition, it is an offence for medical practitioners to continue to undertake a refused medical treatment. This essentially means a practitioner can be faced with a situation where they are obligated to assist dying by complying with a refusal of treatment certificate.

Legal assisted dying in Australia – the Northern Territory example

The Rights of the Terminally Ill Act 1995 (NT) was passed in 1995 and in force from 1 July 1996 to 25 March 1997 when it was overturned and repealed by the Commonwealth Government. The Act allowed individuals to commit suicide either through assisted dying with a medical practitioner or by procurement of drugs. Four people legally ended their lives under the Act, some with the assistance of Dr Phillip Nitschke.

Medical practitioners involved with assisted dying - Dr Nitschke and Dr Syme

Dr Phillip Nitschke

Dr Phillip Nitschke is a public advocate for legally assisted dying. Dr Nitschke has assisted a number of patients with the assisted dying process over the last 20 years by providing end of life medication and advice. In July 2014, Dr Nitschke’s registration was suspended following a decision of the Medical Board of Australia as his actions were considered unsafe to the public. Dr Nitschke’s suspension was eventually lifted by the Northern Territory Supreme Court.

The Medical Board of Australia then imposed restrictive conditions on Dr Nitschke’s registration as a medical practitioner in October 2015 on the basis they were necessary to protect the public. This was in response to Dr Nitschke not only assisting patients through his medical practice but also his involvement in providing advice or information about how to commit suicide (including his workshops, the Peaceful Pill Handbook and online resources). The conditions prevent Dr Nitschke from encouraging suicide in a patient who has indicated their intention and requires him to refer patients interested in suicide to other registered health practitioners or local mental health services. Dr Nitschke is also required to end his endorsement and involvement in publications around suicide.

Dr Rodney Syme

The Medical Board of Australia imposed an immediate condition on Dr Rodney Syme’s registration in December 2016 following a notification that he was going to prescribe Nembutal to a patient suffering from terminally ill cancer. The condition prevented him from providing any medical care with the primary purpose of ending a person’s life. Dr Syme appealed the condition to the Victorian Civil and Administrative Tribunal (“Tribunal”) on the basis that his intention was to provide the patient with relief from the psychological distress associated with the loss of control as to how his life would end.

The Tribunal set aside the decision of the Medical Board as it found that the Medical Board could not have taken immediate action under the National Law as Dr Syme did not pose a serious risk to his patient or the public. Further, the Tribunal accepted that Dr Syme’s intention in prescribing Nembutal was to provide relief and was in fact successful in providing palliative care to the patient.

What to expect next

Following publication of the Inquiry in June 2016, the Victorian Government’s response was tabled in Parliament on 8 December 2016 supporting the findings of the Inquiry.

The Inquiry recommends, amongst other things, that a framework be introduced to legalise assisted dying in certain specified circumstances. Assisted dying generally involves the prescription of a lethal drug to a patient who administers the drug themselves. The process and safeguards are informed by international models such as those in Canada and the Netherlands. Assisted dying is likely to only be available to adults with capacity who are in the final weeks or months of life and suffering a serious or incurable condition which is causing suffering that cannot be relieved.

A draft Bill legalising assisted dying is expected to be released later this year.