Voluntary assisted dying laws commence in Victoria – Voluntary Assisted Dying Act 2017 (Vic)

The Voluntary Assisted Dying Act 2017 (Vic) (Act) comes into force in Victoria on 19 June 2019.

Victoria is the first Australian State to pass voluntary assisted dying laws. The laws represent part of the Victorian government’s broader reforms in relation to end of life choices and the quality of palliative care.

There have been many years of debate regarding this issue, including eligibility and checks and balances. A number of safeguards have been built into the legislation which mean that the Victorian law will be some of the most comprehensive law in the world in relation to this issue.

This legislation is relevant to:

• all Australian hospitals and health care providers; and
• private individuals who may wish to benefit from the legislation.

What do Australian hospitals and health care providers need to know?

It is important for health care providers to know that voluntary assisted dying must not be initiated by a registered health practitioner in the course of providing services to the person but a registered health practitioner may provide information about voluntary assisted dying to a person at that person’s request.¹

Clinicians should become aware of the requirements in terms of eligibility, the assessment process, the required documentation, voluntary dying permits and the process of prescribing and storing the drugs as summarised below.

Clinicians should also be aware that they may make a conscientious objection to participating in a voluntary assisted dying process.

What do private individuals need to know?

Private individuals who wish to take advantage of the legislation need to know the eligibility requirements and the process as summarised below.

What is Voluntary Assisted Dying?

Voluntary Assisted Dying (VAD) means administering a voluntary assisted dying substance for the purpose of causing death in accordance with a step by step process set out in the legislation.

Making a request for VAD

To access VAD, a person must make a written declaration witnessed by two independent witnesses and the co-ordinating medical practitioner confirming that they are making an informed, voluntary and enduring decision to access VAD.

The witness must be aged 18 years or more and must not be an ‘ineligible witness’ (a beneficiary under the will of the person making the declaration or who will otherwise benefit financially or in any other material way from the death).

Two doctors must make assessments of the person’s eligibility to access VAD and must also certify that the request and assessment process has been complied with in accordance with the legislation.

There must also be a final request to the co-ordinating medical practitioner personally.

The coordinating medical practitioner must then make a final review.

Once the assessments are completed, the doctor can apply for a permit to prescribe the medication and the medication can then be dispensed to the person.

Who will monitor VAD?

The Voluntary Assisted Dying Review Board will monitor all activity under the legislation, including the issue of permit applications. Participating health practitioners will be required to report to the Board.

Can a guardian or other appointed medical treatment decision maker apply for VAD?

A family member or carer can’t request VAD on somebody else’s behalf. This is to ensure that the request is completely voluntary and without coercion, and that the decision is the person’s own. Therefore, a guardian cannot make a request for a VAD.

In order to access VAD, the person must have full decision making capacity at all times.

What principles must be considered?

The principles that must be considered in exercising a power or performing a function or duty (including the Victorian and Civil Administrative Tribunal) under the Act² are:

• every human life has equal value;
• a person’s autonomy should be respected;
• a person has the right to be supported in making informed decisions about the person’s medical treatment, and should be given, in a manner the person understands, information about medical treatment options including comfort and palliative care;
• every person approaching the end of life should be provided with quality care to minimise the person’s suffering and maximise the person’s quality of life;
• a therapeutic relationship between a person and the person’s health practitioner should, wherever possible, be supported and maintained;
• individuals should be encouraged to openly discuss death and dying and an individual’s preferences and values should be encouraged and promoted;
• individuals should be supported in conversations with the individual’s health practitioners, family and carers and community about treatment and care preferences;
• individuals are entitled to genuine choices regarding their treatment and care;
• there is a need to protect individuals who may be subject to abuse;
• all persons, including health practitioners, have the right to be shown respect for their culture, beliefs, values and personal characteristics.

Who will be eligible?

A person is eligible for access to VAD if the person is³:

• aged 18 years or more; and
• an Australian citizen or permanent resident and ordinarily resident in Victoria and at the time of making a first request, has been ordinarily resident in Victoria for at least 12 months; and
• has decision-making capacity (as defined in section 4 of the Act) in relation to VAD; and
• diagnosed with a disease, illness or medical condition that is:
  • incurable; and
  • is advanced, progressive and will cause death; and
  • is expected to cause death within weeks or months, not exceeding six months; and
  • is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

However, a person is ineligible for access to VAD only because that person is diagnosed with a mental illness within the meaning of Mental Health Act 2014 (Vic) or because that person has a disability within the meaning of the Disability Act 2006 (Vic).⁴

When may a person access voluntary assisted dying?

A registered medical practitioner, known as a ‘co-ordinating medical practitioner’ under the Act, must assess whether a person meets the eligibility criteria for assisted dying.

A person may request access to VAD if:

• the person has made a clear, unambiguous and personally made first request to the registered medical practitioner (sections 6 & 11); and
• the person has been assessed as eligible for access to VAD by:
  • the co-ordinating medical practitioner for the person; and
  • a consulting medical practitioner for the person; and
  • the person has made a written declaration; and
  • the person has made a final request to the co-ordinating medical practitioner; and
  • the person has appointed a contact person (to monitor the voluntary assisted dying substance); and
  • the co-ordinating medical practitioner has certified in a final review form that the request and assessment process has been completed as required by this Act; and
  • the person is the subject of a voluntary assisted dying permit.

At all times, the person seeking access to VAD can decide not to continue the request and assessment process. In this occurs, and the person then decides to proceed with VAD, that person must commence a fresh request.⁵

A co-ordinating medical practitioner must hold a fellowship with a specialist medical college or be a vocationally registered general practitioner and must have completed approved assessment training.⁶

A registered health practitioner who has a conscientious objection to VAD has the right to refuse to do any of the following:

1. to provide information about VAD;
2. to participate in the request and assessment process;
3. to apply for a voluntary assisted dying permit;
4. to supply, prescribe or administer a voluntary assisted dying substance;
5. to be present at the time of administration of a voluntary assisted dying substance; and
6. to dispense a prescription for a voluntary assisted dying substance.⁷

What is a voluntary dying permit?

A self-administration permit authorises the prescription, possession, storage of the voluntary assisted dying substance to specified people, including;

• the co-ordinating medical practitioner,
• the person self-administering the substance; or
• the self-administering person’s contact person within 15 days after the date of death.

How is the voluntary assisted dying substance dispensed?

The government has established a VAD statewide pharmacy service, which is operated by the pharmacy department at the Alfred Hospital in Melbourne to:

1. prepare the voluntary assisted dying medications;
2. deliver the voluntary assisted dying medications (in a locked box) to patients who have a voluntary assisted dying prescription;
3. provide patients with information and support to self-administer the voluntary assisted dying medications;
4. support medical practitioners, patients, families and carers throughout the process; and
5. receive and dispose of any unused voluntary assisted dying medications.

This voluntary assisted dying statewide pharmacy service is to supply the medications and the education. However, it is not the pharmacists’ role to administer the medications.

Generally, the person must administer the drug themselves (section 47), but there are provisions which allow the co-ordinating medical practitioner to apply for a ‘practitioner administration permit’ if the person is physically incapable of self-administration.⁸

What medications will be used for VAD?

To minimise the risk to the public the exact composition of the voluntary assisted dying substance is unavailable. In addition, the appropriate medications will vary on a case by case basis depending on the individual person and their medical condition. Access to this substance is provided free of charge to the persons seeking to use the medication.

Can VAD be requested in an Advanced Care Directive?

An advanced care directive permits a person to document their preferences regarding future medical treatment should they lose decision making capacity.

You cannot request VAD in an Advanced Care Directive.  People requesting VAD must retain decision making capacity through the entire request and assessment process.

Further information

More information can be found on the Victorian Government’s voluntary assisted dying website.

¹Voluntary Assisted Dying Act 2017 (Vic) s8
²Ibid s5
³Ibid s9
⁴Ibid, section 9(2) & 9(3).
⁵Ibid, s 12
⁶Ibid ss 10, 17
⁷Ibid s 7
⁸Ibid s 48(3)(a)