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Euthanasia - Voluntary Assisted Dying Act 2017 commencement

Wednesday 5th June 2019

By: Jacob Clancy

As at 19 June 2019, the Victorian Voluntary Assisted Dying Act 2017 ("VAD") has now commenced. 

Victoria became the first jurisdiction in Australia giving people a right to die, with eligibility subject to strict criteria.

The passing of the VAD followed an extensive and emotional debate, both publicly and in Parliament itself. The Senate bill debate lasted 26 hours! Parliamentarians on both sides told unusually personal stories, most notably the Premier himself who told of his change of position from opponent to proponent after watching father die.  There’s been a long lead time between passing the legislation and its commencement.  This allowed for the establishment of the Voluntary Assisted Dying Review Board, and for new and particular training for doctors.  

So, how will euthanasia in Victoria, or voluntary assisted dying, actually work?

The VAD provides for terminally ill patients who are of sound legal mind and free of coercion and undue influence to choose the timing of their death via the consumption of the lethal drug ‘pentobarbital’.  The drug is self-administered, orally.  Where a patient is physically incapable of self-administration then it may be administered by their doctor.  This prevents discrimination against terminally ill patients who are physically unable to self-administer.  

A terminally ill patient - and only a terminally ill patient – asks their Doctor about right to die.  The enquiry may not be made on their behalf or by any other person.  Doctors are prohibited from initiating that discussion.

The patient must have been diagnosed with an "incurable disease, illness, or medical condition that is advanced, progressive, and will cause death". The disease must be expected to cause death within 6 months, or 12 months in the case of a degenerative neurological condition.  That timeframe does not exist in every jurisdiction where euthanasia is legal.  It means terminally ill patients without a timeframe in which their illness will cause death cannot access the legislation.  

Mental illness or disability alone will not satisfy the eligibility criteria.  However, both disabled patients and those suffering from a mental illness will not be ineligible if they still meet the criteria.  This prevents discrimination of the disabled or mentally impaired.

When a request has been made the patient must be medically assessed by two doctors. Each doctor must have at least five years experience and have completed the new DHHS training.  Any doctor may conscientiously object to being in any way involved.  Once approved by both doctors independently the new Voluntary Assisted Dying Review Board (“the Board”) reviews each assessment.  They ensure the proper process has been followed; identify any potential inconsistencies; and, aim to ensure patients are not 'doctor shopping'.  

Once approved by the Board the patient must make a formal written declaration , which is to be signed in the presence of two adult witnesses (and also the patient’s doctor) who are neither involved with the patient’s health or professional care in any way and who do not have any pecuniary interest in the patient’s death.  

There is a further 10-day "cooling off" period after the written request has been made before the patient can receive the lethal substance.  This period can be waived where the patient is likely to die within those 10 days.  

The VAD and its framework has been carefully considered. It seeks to balancing compassion and giving the terminally ill the right to die with dignity with protecting the community from abuse, in particular the elderly and sometimes more vulnerable.  The legislation allows doctor the right to conscientiously object. It includes several "checks and balances". No single doctor may be responsible for a death.  New criminal offences - with serious penalties including jail sentences – are introduced to punish any abuse of the law.  

Many dying patients are comforted merely by the knowledge that they have the option to end their own life should their circumstances become unbearable.
Legislators have suggested that we can expect to see between 100 and 150 request permits granted for the VAD in Year 1. Proponents suggested that was a modest uptake given around 50 terminally ill Victorians attempted suicide each year.  On the other hand, opponents of VAD have suggested that number will be conservative, and we can expect vastly higher numbers. In any event, as the baby-boomer generation grow older, and live longer, we can expect to see the number of requests gradually increase.  We should also expect to see more debate as 19 June approaches.  Euthanasia remains a passionate issue and Victoria’s is the first legislation of its kind in Australia.  

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