Australia: Voluntary Assisted Dying Act introduced in Victoria

Last Updated: 18 December 2017
Article by Kerri Thomas and Jehan Mata

Following extensive debate and discussion, the Voluntary Assisted Dying Act 2017 (the Act) was passed on 28 November 2017, making Victoria the first state in Australia to allow voluntary euthanasia as a means for terminally ill people to legally end their own lives. It is expected to come into force in 2019.

The Act specifies that voluntary assisted dying will only be available to Victorian residents over the age of 18 and who:

  • are diagnosed with an illness that "causes suffering that cannot be relieved in a manner that is tolerable to the person"
  • have decision-making capacity, and
  • have a serious, incurable condition with less than six months to live.

Despite some opposition, a conscience vote saw the Bill pass with 47 votes (to 37) in October. The Upper House debated the Bill in November before it was successfully passed 22 votes to 18. The Lower House then altered the life expectancy timeframe for eligible patients from 12 months to six months to live and exemptions were put in place for sufferers of motor neurone disease and multiple sclerosis who will be able to access the scheme in their final 12 months of life.

Proposed framework

The Act is consistent with the proposed assisted dying framework recommended in the Parliamentary Committee's December 2016 inquiry into end of life choices. On 21 July 2017, the Medical Advisory Panel published its final report based on the inquiry, detailing how the proposed legislation will function.

The Panel proposes an extremely rigorous process comprised of 68 safeguards before a person can access the voluntary assisted dying regime. Patients will have to make three requests and be approved by two senior doctors, including one expert or specialist in the patient's condition.

The patient must be provided with a range of information regarding the prognosis and diagnosis of their condition, palliative care and treatment options, and the expected outcomes and risks of euthanasia.

The Act is based on the "physician assisted model", whereby the patient is required to take the lethal dose of medication themselves with no assistance from medical professionals. Additionally, medical professionals are unable to initiate a conversation with a patient about assisted dying. This is similar to the model implemented in the US state of Oregon, which has functioned over the past 20 years and only allows "doctor assisted suicide".

In Oregon, assisted dying legislation does not specify who must pay for voluntary euthanasia. It is up to an insurer to determine whether the procedure is covered under its policy. The legislation provides that participation in voluntary assisted dying is not suicide and therefore should not affect insurance benefits payouts. Life insurance policies in Oregon also issue a benefit to beneficiaries even when the insured has taken his or her own life. Provided the policy was in place for two years, suicide or doctor assisted death does not affect the policy's payout. In cases of permanent and term life insurance, the first two years of coverage is an exclusionary period. If a person dies within this period, the life insurance company will investigate the death to ensure the person did not commit fraud by providing inaccurate or incomplete information. In the majority of cases, insurers will deny a claim if the policy holder commits suicide during the exclusionary period. This holds true for doctor assisted death.

The Voluntary Assisted Dying Review Board will also act as a safeguard by examining each case individually and providing a holistic report on the operation of the scheme. Doctors will also be required to receive specialist training regarding the law and its operation and the Panel has suggested the creation of new offences specific to voluntary assisted dying to discourage and prevent conduct extending outside the scope of the Act.

Potential legal dilemmas

Debate preceding the Act questioned how to establish "a reasonable amount of time passing", so as to demonstrate that a person's request is "enduring". For this reason, the request must be made three times in the form of a verbal request, followed by a written request, then another verbal request.

Potential liability for medical practitioners who are called to assist patients has also been raised. Medical professionals are of the view that the legislation must specify that, provided the medical practitioner acts in line with the requirements of the legislation, they should be shielded from civil or criminal liability, including a scenario where a practitioner is present for self-administration of the lethal dose of medication. However, acting outside the proposed legislation, such as aiding and abetting the self-administration, would be a criminal offence.

The Panel's report states that the "incurable disease, illness or medical condition" must be expected to cause death in no more than 12 months. This raises the issue of placing a time limit on a terminal illness, as time limits are arbitrary and difficult to predict. Placing restrictions on time limits also gives rise to the risk of people partaking in harmful steps to fall inside the time limit period. However, the 12-month period allows a clinical view to be formed on how to manage the prognosis within the time frame. It also avoids ambiguity around the phrase "at the end of life".

Additionally, the Medicare benefits schedule explicitly excludes euthanasia. Therefore, the required lethal drugs are unlikely to be subsidised by the Government. In the US, cost has become a major issue and limiting factor in states that have legalised voluntary euthanasia. The company responsible for producing the most common medication used, Seconal, increased the cost of a single dose to more than US$3,000 before California legalised assisted dying.

Implications for insurers

Some organisations have expressed concern about professional liability if members participate in voluntary assisted dying. Health professionals are concerned they will require expensive insurance policies to provide them with confidence about liability to assist an eligible person under the Act. This could act as an impediment that will discourage and limit health professionals' involvement. It was recommended that there should be no loss of insurance benefits as a result of exclusion clauses for suicide.

It has also been recommended that accessing voluntary assisted dying should not affect insurance payments for other annuities. The person's underlying illness will inevitably cause the death and for the purpose of insurance, the death should be treated as though he/she died as a result of the illness.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kerri Thomas
Jehan Mata
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