AUSTRALIA
The Victoria Voluntary Assisted Dying (VAD) Act –
still a mixed blessing

Guest comment by Dr. Rodney Syme*

On June 19, 2019, an assisted dying law took effect in the Australian State of Victoria. The first VAD permit was issued a few weeks later, and in August, a cancer patient was the first Victorian resident to end her suffering making use of the new legal option. Dr. Rodney Syme* looks back at the Act’s development and explains why it is still a mixed blessing:

The genesis of the Victorian Voluntary Assisted Dying Act was a Parliamentary Inquiry into end of life choices. The commission met for 12 months, took over a thousand submissions, and members visited a number of countries with functioning legislation. Its report of June 2016 concluded that the status quo was unacceptable, and recommended that the government establish an assisted dying framework. The Labor government committed to introduce legislation, and established an expert advisory panel to advise on the form of the legislation. The Voluntary Assisted Dying Act was passed in November 2017, but included an 18-months delay to allow for sound implementation planning.

A large number of private member’s Bills had been defeated over the previous 25 years – this was the first time a government initiated Bill was to be debated. Law reform groups agreed to adopt a conservative approach to ensure that law was passed. The law that resulted after a close vote in the Upper House, was described by the Premier as "the most conservative law in the world", and was cited as having 68 "safeguards". The Act is administratively complex, and is very likely to make it difficult for suffering people to implement.

The Act requires a person requesting assisted dying to (1) have a progressive terminal illness, (2) likely to cause death within 6 months (or 12 months for a neuro-degenerative disease); (3) have decision-making capacity; (4) and have suffering unacceptable to the person (to be determined by the person). Two doctors must confirm the requirements have been met – one the co-ordinating doctor (who will usually, but need not be a GP, who does most of the work and ultimately signs the prescription), and a consulting doctor who confirms that the requirements have been met.

The law states that one of the two doctors must have "relevant experience and expertise" in the terminal illness, and the government has interpreted that as meaning a "specialist" (not defined, nor is "relevant experience and expertise"). Thus two experienced GPs cannot complete the documentation – given that, not unreasonably, any doctor can refuse a request on conscientious grounds, the number of specialists (who will essentially be oncologists, cardiologist, respiratory physicians or neurologists, with a few geriatricians and palliative care doctors) available for assistance will be a small number, particularly in country Victoria. There is a not unreasonable requirement for assisting doctor to have undergone specified training in order to participate, but patients do not know which doctors have done training, nor do GPs know which specialists are available.

There is another incredible clause which states that a doctor must not "in substance, raise the subject of assisted dying" – this clause was included to ensure that doctors did not try to persuade people to request VAD. It goes against every aspect of medical ethics for a doctor not to fully inform his patient of all aspects of available treatment, and it is contrary to any other legislation that I am aware of attempting to dictate the discussion between doctor and patient. Most doctors, I am sure, will ignore this clause, but there may be some legally concerned doctors who will be deterred from appropriate discussion.

So at this stage there is much confusion and delay in gaining assistance. Many of these problems will undoubtedly resolve over time, but many people will have suffered unnecessarily. How I wish we had a simple law like Switzerland – the best in the world.

Despite these, and some other less serious problems, the ice has been breached. Review of the legislation is to take place in 4 years. Meanwhile, Western Australia, Queensland and South Australia are following the path taken in Victoria, with good prospects of success for simpler Bills, and Tasmania and New South Wales have effective private member’s bills coming up. The tide for VAD is sweeping Australia, as it is the world. I hope my next guest article will report very significant change "down under".

* Dr. Rodney Syme, former President of Dying with Dignity Victoria, has been a voluntary assisted dying advocate for over 30 years. In June 2019, he has been honoured a Member of the Order of Australia (AM) for "significant service to social welfare initiatives, and to law reform".

Newsletter 2019-3-2-e