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Voluntary Assisted Dying: Your Questions Answered
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After three failed attempts, proposed voluntary assisted dying legislation was passed by the Tasmanian Legislative Council (Tasmania’s Upper House) on 10 November 2020. The vote took place after a long and emotional debate, and the incorporation of a number of amendments to the End-of-Life Choices (Voluntary Assisted Dying) Bill 2020 (“the Bill”).
In this article, we answer some commonly asked questions about voluntary assisted dying, and the specific terms of the Bill.
What is Voluntary Assisted Dying?
Voluntary assisted dying is when a person takes medication, prescribed by a doctor, that will cause their death.
A key objective of the Bill is to provide eligible people with an efficient and effective process to enable them to choose to end their suffering with assistance, without that assistance being an unlawful act.
Is Voluntary Assisted Dying Legal in Tasmania?
No. Although the Bill has passed the Upper House, there are several steps remaining before the laws can come into effect.
The Bill must now be tabled in, and passed by, the House of Assembly (Tasmania’s Lower House) before it can become law. This process will likely involve further scrutiny and debate, and any further amendments will need to be considered and passed by the Upper House. The government has committed to commencing the debate in the Lower House before the end of this year, but it is expected that the debate will not conclude until around March 2021.
Even if the Bill passes the Lower House without amendment, the laws are not expected to become operational until 2022.
Who Is Eligible to Access Voluntary Assisted Dying Under the Bill?
To be eligible to access voluntary assisted dying, a person must:
- have attained the age of 18;
- meet the residency requirements (they must be an Australian citizen who has been resident in Tasmania for at least the last 12 months);
- have decision-making capacity, and retain decision-making capacity throughout the voluntary assisted dying process;
- be acting voluntarily; and
- be suffering “intolerably” from a “relevant medical condition”.
A “relevant medical condition” is a condition that is “advanced, incurable and irreversible”, and is expected to cause the death of the person within 6 months, or within 12 months if the disease is neurodegenerative (although a person may be exempted from the 6 or 12 month requirements in certain circumstances).
Whether a person is suffering “intolerably” is a subjective assessment based on certain criteria set out in the Bill.
How Can Someone Access Voluntary Assisted Dying?
Under the Bill, the first step is for a person to seek information about voluntary assisted dying from a medical practitioner. The relevant medical practitioner is required to provide information about the treatment options available to the person, including palliative care options, and the likely outcome of the care and treatments available.
Once a person has received information about their options, including treatment options, the following steps must be followed:
- First Request – a request to access voluntary assisted dying is made to a relevant medical practitioner. If the first request is accepted, the medical practitioner becomes the person’s primary medical practitioner (PMP);
- Second Request – provided the first request is accepted and the person is deemed to be eligible by the PMP, a second request can be made to the PMP. Except in special circumstances, this request must come more than 2 days after the first request;
- Second Opinion – after accepting the second request, the PMP must refer the person to another medical practitioner for a second opinion about whether the person is eligible for voluntary assisted dying. If the referral is accepted, that medical practitioner becomes the person’s consulting medical practitioner (CMP);
- Third Request – if the CMP confirms that the person meets the eligibility criteria, they can make a third and final request to the PMP. Except in special circumstances, this request must come more than 2 days after the second request;
- Appointment of AHP – the PMP must either agree to be appointed as the administering health practitioner (AHP) or can request that another practitioner be appointed;
- VAD Substance Authorisation – the Voluntary Assisted Dying Commission (a government authority established by the Bill) issues a Voluntary Assisted Dying (VAD) Substance Authorisation to the PMP on request of the PMP;
- Final Assessment – the AHP must perform a final assessment to ensure the person has decision making capacity and is acting voluntarily. Provided the AHP is satisfied, they must provide advice to the person that they are entitled to receive assistance to die, and explain how the medication can be administered; and
- Final Permission – the person may self-administer the substance. If they wish for the AHP to administer the substance, they must give a final permission to the AHP to do so.
A person can withdraw from the voluntary assisted dying process at any time.
Can Someone with a Disability or Mental Illness Access Voluntary Assisted Dying?
Under the proposed laws, people suffering from a disability or mental illness will be able to access voluntary assisted dying, provided they meet the eligibility criteria.
The person seeking access to voluntary assisted dying must have decision-making capacity, and must be able to communicate their decision.
Suffering from a disability or mental illness does not, in itself, make a person eligible to access voluntary assisted dying. Their condition must meet the requirements of a “relevant medical condition”, as defined above.
Can a Family Member, Attorney or Guardian Request Voluntary Assisted Dying on My Behalf?
No, the proposed laws require that requests must be made by the person seeking to access voluntary assisted dying.
If a person requires an interpreter or other assistance to communicate, a third person may assist to communicate on that person’s behalf. However, the proposed laws specially provide that the third person must not be a family member.
Can I Request Voluntary Assisted Dying in My Advance Care Directive?
The purpose of an advance care directive is to record a person’s wishes about their medical care, so that those wishes can be respected if that person later loses decision-making capacity.
A person cannot request voluntary assisted dying in an advanced care directive.
The proposed laws require that the person accessing voluntary assisted dying must have decision-making capacity throughout the entire process.
Is It Compulsory for Doctors and Health Professionals to Participate in Voluntary Assisted Dying?
No, the proposed laws allow medical practitioners to refuse requests for voluntary assisted dying, and refer the patient to another medical practitioner.
This includes where the medical practitioner’s reason for refusing to provide treatment are based on their personal beliefs or moral concerns about voluntary assisted dying. There is no requirement for reasons to be provided.
What are the Current Consequences of Assisting a Person to Take Their Own Life?
In Issue 16 of WMM News we discussed the current criminal and civil consequences of assisting a person to take their own life (including how it can impact a person’s claim or entitlement to the deceased person’s estate). You can read that Issue here. Unless, and until, the Bill passes into law, the consequences set out in that Issue remain.
How Can We Help?
If you have any questions about the proposed voluntary assisted dying laws, or would like advice about your role as an Attorney, Guardian or support person for someone who may be eligible and wishes to access voluntary assisted dying, please contact Eve Hickey, Kimberley Martin, Kate Moss or Robert Meredith.
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Technology and Wills - The Dawn of a New Era (Special COVID-19 Edition)
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In her paper Technology and Wills – The Dawn of a New Era (COVID-19 Special Edition), Kimberley Martin details the increasing use of technology in Willmaking around the world. Analysing proactive and reactive legal developments and the rise, and use, of judicial dispensing powers, electronic Wills and remote witnessing via audio-visual link, the paper has been called a “MUST READ reference” and an “Interesting, Informative and Indispensable guide!”. The paper can be accessed here.
Despite the protracted nature of the pandemic and restrictive government responses, the position in Tasmania is that electronic Wills and remote witnessing of Wills by audio-visual link are not (yet) valid.
If you wish to discuss contemporary estate planning strategies in Australia, or if you wish to discuss the paper, please contact Kimberley Martin.
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This newsletter contains material for general educational purposes and is not designed to be advice to any particular person about their own affairs as it does not take into account the circumstances of the reader as an individual. It is recommended that appropriate professional advice be obtained by each reader so that reliance can be taken upon that advice.
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