Voluntary Assisted Dying Act 2017 - What you need to know

The Voluntary Assisted Dying Act 2017 commenced on 19 June 2019 in Victoria. The Act is the first of its kind in Australia, allowing individuals with a terminal illness or neurodegenerative condition and whose suffering is intolerable to choose the manner and timing of their death.

What is voluntary assisted dying?

Voluntary assisted dying is the administration of a medication prescribed by a doctor, taken by an individual in the late stages of advanced disease at a time when they choose to end their life. It is generally self-administered. The term 'voluntary assisted dying' is used rather than 'euthanasia' as euthanasia can encompass a broader scope. The important aspects of voluntary assisted dying are that:

• it is a decision personal to an individual;
• it is a consistent request by that person to end their life on their terms; and
• the individual is fully-informed about their disease and their options for treatment and care.

The process is designed to ensure that the individual's decision to end their life is voluntary, consistent and lawfully supported. The Act is extensive and provides a range of protections to both individuals accessing voluntary assisted dying and their medical practitioners.

Who is able to access voluntary assisted dying?

To be able to access voluntary assisted dying an individual must:

1. be aged 18 years or more;
2. be an Australian citizen or permanent resident;
3. be ordinarily resident in Victoria;
4. have been ordinarily resident in Victoria for at least 12 months prior to making the first request to access voluntary assisted dying;
5. have decision-making capacity;
6. have an advanced incurable disease that causes intolerable suffering and will likely cause their death either: -'  within six (6) months for a terminal illness; or -'  within twelve (12) months for a neurodegenerative condition.
7. be able to make and communicate their decision to access voluntary assisted dying throughout the request and assessment process '€“ this includes at least 3 consistent requests by the individual.

Voluntary assisted dying is not accessible by an individual who:

1. is suffering solely from a mental illness as defined in the Mental Health Act 2014; or
2. is suffering solely from a disability as defined in the Disability Act 2006; or
3. does not have decision-making capacity; or
4. has a life-expectancy greater than six (6) months for a terminal illness or twelve (12) months for a neurodegenerative condition; or
5. is not ordinarily resident in Victoria; or
6. is under the age of 18 years.

What is the request and assessment process?

If an individual wants access to the voluntary assisted dying process, they are required to make an initial request to a medical practitioner. A medical practitioner or health care practitioner is not permitted to discuss voluntary assisted dying or instigate the request and assessment process, without the individual asking them about it first. Following a first request by an individual, two medical practitioners are required to independently assess the individual and agree that the individual meets the criteria for voluntary assisted dying. If a medical practitioner is uncertain as to whether a person meets the criteria, either due to their medical condition or their decision-making capacity, the medical practitioner is required to refer them to a specialist for a consulting assessment prior to the individual's first request being approved. Once the first request and assessment has been made and an individual assessed as being eligible, the individual is required to make a written declaration requesting access to voluntary assisted dying. The declaration requires:

• the individual to state that they make the request voluntarily and without coercion;
• the individual to state that they understand the nature and effect of the declaration they are making; and
• must be witnessed by 2 witnesses and the co-ordinating medical practitioner.

Following a written declaration by the individual, they are required to make a final request for access to voluntary assisted dying. The request must be made to the co-ordinating medical practitioner personally by the individual. This must occur at least nine (9) days after the first request and no less than one (1) day after a consulting assessment has taken place and the individual is assessed as being eligible. Once an individual has been assessed as eligible and all parts of the request and assessment process have been completed, a voluntary assisted dying permit and a self-administration permit are issued by the co-ordinating medical practitioner and the medication can be prescribed and obtained by the individual. If the individual is unable to self-administer the medication at the time that the request and assessment process has been completed, the co-ordinating medical practitioner may seek a practitioner administration permit instead. This would only be applicable if the individual is physically incapable of administering the medication themselves but has otherwise met all eligibility, request and assessment processes. If an individual loses the ability to self-administer the medication after a voluntary assisted dying permit and self-administration permit are issued, the individual is required to personally request the co-ordinating medical practitioner to apply for a practitioner administration permit instead. Once all necessary permits have been granted, the individual self-administers or has a practitioner administer the medication at a time chosen by the individual. Notification of death must then be provided to Births Deaths and Marriages by the registered medical practitioner who was responsible for the individual's medical care prior to their death in the usual manner. The individual's cause of death on the death certificate will show 'voluntary assisted dying'.

What happens if an individual changes their mind?

An individual has the right to decide at any time not to continue the request and assessment process. If an individual has discontinued a request and assessment process, they are able to make a new request if they change their mind however, the entire process must begin again.

What happens if an individual loses decision-making capacity during the request and assessment process?

Where an individual loses the ability to make their own decisions during the request and assessment process, they are no longer eligible for voluntary assisted dying.

How long does the process take?

The approval of an individual's access to voluntary assisted dying takes a minimum of ten (10) days. Once approved, the timing of the administration of the life-ending medication is at the individual's choosing. Is a medical practitioner or healthcare provider required to participate? The short answer is no. They may object to participate in the voluntary assisted dying process for the following reasons:

• they have a conscientious objection to voluntary assisted dying;
• they believe that they will not be able to perform the duties of co-ordinating medical practitioner due to unavailability; or
• they do not meet the requirements for medical practitioners of being either a vocationally registered general practitioner or hold a fellowship with a specialist medical college, and have been practicing for at least five (5) years, and have relevant expertise and experience in the individual's disease or medical condition.

What are the safeguards?

The Act provides for extensive safeguards throughout the process. These safeguards include, but are not limited to:

• the individual is required to request and communicate their desire to participate in voluntary assisted dying personally.
• the Voluntary Assisted Dying Review Board will monitor all activity and receive reports from medical practitioners who participate in voluntary assisted dying.
• witnesses to the individual's written declaration must: be adults; must not be a beneficiary under the individual's Will or must not be in a position that they benefit financially or materially from the individual's death; must not be the owner or responsible for the day to day operation of any health facility where the individual is treated or resides; and not more than one of the witnesses may be a family member of the individual.
• if a person loses decision-making capacity then the process comes to an end.
• a contact person must be nominated by the individual '€“ the contact person is required to return unused or remaining medication to the dispensing pharmacy.
• only one dispensing pharmacy is currently permitted to dispense the medication (Statewide Pharmacy Service at Alfred Health).
• the individual is required to be instructed on how to administer the medication, how to store it, that they can choose not to administer it and that the unused or remaining medication must be returned to the dispensing pharmacy.
• an individual who has been assessed by a medical practitioner as ineligible for voluntary assisted dying can make an application to VCAT to review the refusal.

In addition, the Act sets out multiple offences and the penalties attached to those offences. The offences include administration of the medication by a person other than the individual or their medical practitioner, inducing an individual to seek voluntary assisted dying, falsifying records or making false statements, failure to return the unused or remaining medication, and failure to provide the necessary reports to the Voluntary Assisted Dying Board.

Voluntary assisted dying, Appointments of Medical Treatment Decision Maker and Advanced Care Directives

As voluntary assisted dying is a choice that is personal to an individual and must be made by that individual, a Medical Treatment Decision Maker is unable to seek voluntary assisted dying on behalf of a person pursuant to an Appointment of Medical Treatment Decision Maker. Similarly, an individual is unable to put in place an Advanced Care Directive authorising voluntary assisted dying '€“ the individual must have the ability to request and communicate their desire for voluntary assisted dying throughout the request and assessment process. If you require further clarification of the above or any further information please contact a member of our Wills and Estates team: Bill Hazlett Principal Accredited Business Law Specialist Accredited Commercial Tenancy Law Specialist Chartered Tax Advisor D +61 3 8602 9259 E [email protected] Rob Allen Special Counsel D +61 3 8602 9268 E [email protected] Joanne Jenkins Senior Associate D +61 3 8602 9226 E [email protected] Marja Moore Legal Executive D +61 3 8602 9279 E [email protected]