On 24 June 2021, the Voluntary Assisted Dying Bill passed South Australian Parliament. This follows 17 unsuccessful attempts over nearly 30 years. The Bill was assented on 1 July 2021, however to date remains uncommenced, meaning the legislation has not yet come into force. Once the legislation comes into force, terminally ill (and eligible) Australian citizens may make a request to a registered medical practitioner to access to voluntary assisted dying, also known as euthanasia. This is of course, subject to a number of requirements and conditions.
The legislation includes a series of criteria for persons to be eligible for access to voluntary assisted dying, as well as a lengthy list of requirements regarding the process of requesting assistance with voluntary dying from a medical practitioner.
Involvement of registered medical practitioners
Pursuant to the legislation, there will be minimum requirements for registered medical practitioners involved in the voluntary assisted dying process. These include:
- Each co-ordinating medical practitioner and consulting medical practitioner must hold a fellowship with a specialist medical college or be a vocationally registered general practitioner;
- Either the co-ordinating medical practitioner or each consulting medical practitioner must have practised as a registered medical practitioner for at least 5 years after completing a fellowship with a specialist medical college or vocational registration; and
- Either the co-ordinating medical practitioner or each consulting medical practitioner must have the relevant expertise in the disease, illness or medical condition expected to cause the death of the person being assessed.
- The co-ordinating medical practitioner must have completed assessment training approved by the Minister. The scope of this training is not currently clear.
Once an individual has satisfied the basic eligibility requirements to request assistance with ending life, they are required to make a series of requests to a registered medical practitioner for access to voluntary assisted dying. The legislation provides that, for each step, if a registered medical practitioner or co-ordinating medical practitioner is unable to make a determination required under the Act, they must refer the individual to an appropriate specialist or registered medical practitioner with the appropriate skills and expertise in the relevant field. They must then adopt the determinations made. A brief outline of the process involving medical practitioners is as follows:
- The individual makes a first request to a registered medical practitioner for access to voluntary assisted dying. The registered medical practitioner must then accept or refuse the first request. If approved, they then become the co-ordinating medical practitioner.
- The co-ordinating medical practitioner will commence a first assessment of the individual regarding their decision-making capacity, including a determination that the individual's disease, illness or medical condition is neurodegenerative in that it is expected to cause death within weeks or months, not exceeding 12 months. The individual must also be referred to a specialist in the particular neurodegenerative condition who is required to provide a clinical report.
- If the co-ordinating medical practitioner assesses the individual as meeting the eligibility criteria for assisted dying, they must inform the individual about matters including but not limited to their diagnosis and prognosis, treatment options available and likely outcome, palliative care options available and the likely outcome, potential risks of the controlled substance likely to be prescribed as the life ending substance and that the expected outcome of taking that controlled substance is death.
- If the co-ordinating medical practitioner is satisfied that the individual meets all of the eligibility criteria for access to voluntary assisted dying, understands the information required to be provided by the co-ordinating medical practitioner, they are acting involuntarily and without coercion and their request is enduring, they must assess the individual as eligible for access to voluntary assisted dying. A first assessment report form must be completed by the co-ordinating medical practitioner and given to the Voluntary Assisted Dying Review Board.
- The co-ordinating medical practitioner must then refer the individual to another registered practitioner for a consulting assessment. The process that follows then largely mirrors what has been identified above and is repeated with referrals to different registered medical practitioners and specialists. The registered medical practitioner who accepts the referral from the co-ordinating medical practitioner then becomes the consulting medical practitioner.
- Ultimately, a final request is made by the individual to the co-ordinating medical practitioner. From here, the applicant is required to appoint a contact person and the co-ordinating medical practitioner must conduct a final review of all assessment reports and forms, a written declaration of the individual and the contact person appointment form.
An important point for any registered health practitioner to note is that they may conscientiously object to participating in the assistance of voluntary dying at any time, with respect to objecting:
(a) to provide information about voluntary assisted dying;
(b) to participate in the request and assessment process;
(c) to apply for a voluntary assisted dying permit;
(d) to supply, prescribe or administer a voluntary assisted dying substance;
(e) to be present at the time of administration of a voluntary assisted dying substance; and
(f) to dispense a prescription for a voluntary assisted dying substance.
Mandatory Reporting for medical practitioners
The legislation includes requirements regarding mandatory reporting for medical practitioners in the event of practitioners initiating discussions with individuals about voluntary assisted dying not in accordance with the Act and with respect to reportable deaths pursuant to a proposed amendment to the Coroner's Act 2003.
Protection from Liability
There are sections of the legislation that allow for protection from criminal liability for persons who assist, facilitate, do not act or act in accordance with the legislationwith respect to facilitating a request for or access to voluntary assisted dying.
Registered health practitioners who act in accordance with the legislation, in good faith and without negligence will not be guilty of an offence, liable for unprofessional conduct or professional misconduct, liable in any civil proceeding or liable for contravention of any code of conduct. Similarly, this applies to registered health practitioners or persons providing an ambulance service if they do not administer lifesaving or life sustaining medical treatment to an individual who has not requested it and believe on reasonable grounds that the individual is dying after being administered or self-administering a voluntary assisted dying substance in accordance with the legislation.
Once the legislation is in force, it is important that registered medical practitioners make themselves aware of their obligations under the legislation.
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.