The subject matter of the event was especially timely, as the state’s new voluntary assisted dying (VAD) legislation sat poised between the two houses of Parliament – it had passed the Legislative Assembly less than a week before, and is due to be debated in the Legislative Council this week.

As emphasised by the forum’s facilitator and Victoria Law Foundation’s Executive Director, Lynne Haultain, the VAD legislation sits at the crossroads of medicine and law, and to accommodate this the night’s panel was made up of a mix of well-credentialed legal and medical professionals.

Representing the medical realm were Steven Amsterdam, a palliative care nurse and author, and Dr Scott King, Clinical Director of Palliative Medicine at Calvary Healthcare Bethlehem. From the legal world were Kathy Wilson, an expert in succession and elder law from Aitken Partners, and Julian Gardner AM, Chair of Mind Australia and former Victorian Public Advocate, who sat on the Ministerial Advisory Panel on Voluntary Assisted Dying.

VAD legislation: Why now?

There were a number of thought-provoking themes that emerged from the night. The first was the question of why this legislation has a chance of success now when assisted dying laws have failed time and again to gain political momentum in Victoria. Julian Gardner put it down to politics – this is the first time assisted dying has been put forward by the government, rather than being proposed in a private member’s bill.

He noted too the persuasiveness of the evidence presented to the Ministerial Advisory Panel:

Existing laws are not being enforced, and mercy killing is not being prosecuted; one person a week commits suicide who might be eligible for VAD; and 1-5% of people suffering from terminal illness can’t be relieved by palliative care.

Another interesting explanation raised was that a generation of Baby Boomers, who tend to value ‘autonomy’ and are used to being in control of their lives, is starting to anticipate end-of-life questions. Having the option to choose VAD, it was argued, can provide a sense of control and comfort, even if the number of people who actually use it is small.

Impact of VAD on healthcare professionals

A good deal of the evening was devoted to the attitude of healthcare professionals in Australia. While support for VAD sits at around 70% of the general population, the level of support is much lower in the medical community.

Haultain teased out the possibility that VAD is in some sort of competition with palliative care. While the panel agreed that the two are not in direct competition, the medical professionals on the panel were concerned that VAD might undermine the work of palliative care specialists. Steven Amsterdam explained that palliative care has a branding problem, in that people in Australia tend to associate it with death, with the palliative care department seen as a place ‘you go to die’. Given we’re a death-averse society, people put off palliative care as long as possible, and Amsterdam raised the concern that VAD might present yet another barrier to getting people into palliative care. Dr King emphasised this point by explaining that palliative care has a much greater acceptance in other parts of the world, such as the UK, and that Australians are very wary by comparison.

Will the vulnerable be protected?

An issue that attracted attention was whether there are sufficient measures in the legislation to protect against coercion of people to end their own lives using the VAD processes. Julian Gardner explained the protections (outlined fully here) and emphasised that taken together, these measures reduce as far as possible the risk of coercion. Kathy Wilson noted that the lack of a definition of coercion in the legislation is a weakness, and that ‘undue influence’ is generally very hard to prove in cases of elder abuse. She noted that:

Doctors need to be aware of the subtle forms that coercion can take when it comes to family members attempting to abuse laws like VAD for personal gain.

Overall, the evening involved an engaging mix of dialogue and education.

Hosting a panel made up of medical and legal professionals allowed for debate on the complexities of an issue that touches on death, autonomy, elder abuse and the repercussions of law reform on both medical professionals and their patients. Opening the discussion up to the general public gave anyone who was interested the opportunity to ask questions and clarify how the proposed laws might impact them and their loved ones.

Victoria Law Foundation is a not-for-profit organisation that provides easy-to-understand information about the laws and legal system to Victorians.

More on BucketOrange Magazine

• Legalising Euthanasia Explainer: Victoria’s Voluntary Assisted Dying Bill Hits Parliament

If passed, from mid-2019, the highly contentious legislation would allow those suffering from an advanced and incurable illness, disease or medical condition to seek a medically assisted death.

Since the subject of euthanasia can be so ethically complicated, the details of how the new laws will work in practice are important.

At the end of 2016, an independent panel of healthcare and legal professionals, the Voluntary Assisted Dying Ministerial Advisory Panel (the Panel) was asked to look into those details. The Panel published its final report in July and so it’s now possible to get a sense of how (what the Panel calls) voluntary assisted dying would work.

Who will be able to choose euthanasia?

There are two key tests to determine if a Victorian adult will be able to access assistance to die.

Firstly, they need to have ‘decision-making capacity’, so that they understand what is involved and can make a voluntary, informed decision.

Secondly, they need to have been diagnosed with an incurable disease, illness or medical condition that is:

(a) advanced, progressive and will cause death in not longer than 12 months and which is

(b) causing suffering that cannot be relieved in a manner the person deems tolerable.

These tests mean that there are a few situations in which someone who might want to use the voluntary assisted dying laws won’t be able to do so. For example, some people with dementia may not be able to access the voluntary assisted dying scheme.

Similarly, someone with a mental illness or a disability will not, for those reasons alone, be able to access the voluntary assisted dying scheme. Another result is that it will not be possible to nominate voluntary assisted dying as something you want to be done if you become unable to decide for yourself in the future.

How will someone be able to access euthanasia?

Before a person is able to access the voluntary assisted dying scheme, they have to make three separate requests and undergo two independent medical assessments.

The stages are:

• First request

A person must make a written request for voluntary assisted dying to a medical practitioner. This medical practitioner will be able to conscientiously object to taking part, but if they don’t, they will make a decision as to whether to act as the ‘coordinating medical practitioner’.

• First assessment

The coordinating medical practitioner must conduct the first assessment using the eligibility criteria and must ensure the person is properly informed.

• Second assessment

If the person is eligible, the coordinating medical practitioner needs to refer the person to a second medical practitioner who must carry out a second, independent assessment.

• Second request

If both medical practitioners decide the person is eligible, the person needs to then complete and sign a written declaration, witnessed by two independent witnesses.

• Third request

The person needs to make a final, verbal request to the coordinating medical practitioner. This has to be done at least 10 days after the first request.

Once this is done, and the coordinating medical practitioner has obtained the lethal dose of medication, the person is required to store the medication in a locked box until they decide to administer it.

How will vulnerable people be protected from abuse?

The Panel included a number of different safeguards to help make sure that people do not abuse the assisted dying scheme.

New criminal laws

The Panel has recommended the creation of the following offences:

• inducing a person, through dishonesty or undue influence, to request voluntary assisted dying
• inducing a person, through dishonesty or undue influence, to self-administer a lethal dose of medication
• falsifying records related to voluntary assisted dying; and
• administering a lethal dose of medication to a person who does not have decision-making capacity

Witnesses

The written request must be witnessed by two people in the presence of the coordinating medical practitioner.

One of the witnesses must not be a family member, and both must be at least 18 years of age. Neither witness can be a recipient of any material benefit resulting from the person’s death. If it is the coordinating medical practitioner that administers the lethal dose, an independent witness must be present.

Self-administration

The person who has accessed the voluntary assisted dying scheme is the only person who is permitted to administer the lethal medication.

The only time anyone else will be able to administer the medication is if the person is physically unable to do so themselves. In these circumstances, the coordinating medical practitioner will be able to administer the medication.

Minimum training

Both medical practitioners must be qualified as Fellows of a College. At least one needs to have at least five years post fellowship experience, and at least one needs to have expertise in the person’s disease, illness or medical condition.

Both must have had training in making voluntary assisted dying assessments.

Medication permit

The coordinating medical practitioner will need to apply to the Department of Health and Human Services for a permit before they are able to write a prescription for the lethal dose of medication. A pharmacist will only be able to dispense the medication if there is a valid permit.

Oversight

The Panel recommended the creation of a Voluntary Assisted Dying Review Board, a statutory body that would review every case to make sure the safeguard processes are being followed.

When will the voluntary assisted dying system be set up?

The Victorian health minister, Jill Hennessy, has said that she would introduce legislation to Parliament today and that legislation would come into effect within an 18-month window of the bill passing.

Tomorrow, 21 September 2017, NSW Nationals MLC Trevor Khan will also formally introduce a voluntary assisted dying bill into the NSW Parliament with a second reading speech in the upper house, and formal debate due to begin in October.

This means that if these bills are successful, the voluntary assisted dying framework could come into effect by mid-2019.

What do you think about the contentious bill to legalise assisted dying for terminally ill patients? Do you support or oppose it, and why? Let us know in the comments!