Voluntary Assisted Dying

Voluntary Assisted Dying

The Voluntary Assisted Dying Bill 2021 passed the NSW Lower House on the last sitting day of 2021. What happens now?

Five of six states in Australia have passed voluntary assisted dying (VAD) laws, making NSW the last state in the country to put a VAD scheme in place. However, NSW moved closer to legislating VAD on 25 November 2021, when the majority of MPs voted 53 to 36 in favour of considering the Voluntary Assisted Dying Bill 2021.

Following the vote, the Lower House was to consider multiple amendments to the Bill before it returns to the Upper House.

AMA (NSW) President, Dr Danielle McMullen appeared at the Committee Hearing on 13 December to articulate AMA (NSW)’s submission to the Standing Committee on Law and Justice into the Inquiry into the Voluntary Assisted Dying Bill 2021 (NSW).

The Committee Hearings concluded in December and a final report from the Inquiry is being prepared. The report is scheduled to be delivered on the first day parliament resumes – 22 February 2022. 

Voluntary Assisted Dying Bill 2021 (NSW) (the NSW Bill)
The NSW Bill was tabled by Independent MP Alex Greenwich in October 2021 and is reflective of VAD legislation passed in other Australian states.

To be eligible for voluntary assisted dying, a person must:

• be 18 years and over with decision-making capacity who is acting voluntarily and without duress;

• be terminally ill, with a condition that is advanced, progressive and will cause death within six months (or 12 months for a neurodegenerative disease) and be experiencing intolerable suffering;

• be an Australian citizen, permanent resident or a resident of Australia for three years or more, and must have lived in NSW for 12 months before their first request for voluntary assisted dying.

The NSW Bill outlines a rigorous request and assessment process. Under the NSW Bill, the person must be assessed as eligible by two senior doctors who have completed mandatory training.

If the person has been assessed as eligible, the person must sign a written declaration in front of two witnesses, requesting voluntary assisted dying. 

The NSW Bill then requires the ‘coordinating’ doctor to apply to the Voluntary Assisted Dying Board for authorisation to proceed.

A final request is for the prescribed substances.

The Voluntary Assisted Dying Board will consider applications for the prescribed substances and can refuse to provide the prescribed substances if the request and assessment criteria is not met.

If approved by the Board, the person can administer the drug themselves or ask a health practitioner to do so.

During the administration of the drug by a health practitioner, an independent witness must be present and must certify that it was voluntary.

The NSW Bill allows registered health practitioners to conscientiously object to participation.

The NSW Bill also regulates the extent to which individual institutions can block access to voluntary assisted dying.

As is the case with other states, the Voluntary Assisted Dying Board will monitor how the law operates.

AMA (NSW) submission
In its submission to the inquiry, AMA (NSW) stated its overarching position, which is that voluntary assisted dying is a matter for society and government.

AMA (NSW) acknowledges that many jurisdictions in Australia and around the world have enacted legislation for voluntary assisted dying. AMA (NSW)’s role is to ensure the medical profession is appropriately represented in the development of any legislation to ensure that, should NSW legislate on voluntary assisted dying, it is the most appropriate legislation.

A number of AMA (NSW)’s concerns were addressed in the process of amendments agreed to by the Legislative Assembly. Specifically, AMA (NSW) is supportive of the removal of the requirement for doctors who are conscientious objectors to provide information to those seeking voluntary assisted dying. 

In its submission, AMA (NSW) stated medical practitioners are required to comply with professional obligations that include not allowing their moral or religious views to deny patients access to medical care, but at the same time there is recognition that a medical practitioner is free to decline to personally provide or directly participate in that care. It is AMA (NSW)’s position that these professional obligations provide patients with a right to access care, and the necessary obligation on medical practitioners not to impede patient access.

AMA (NSW) also made representations regarding the minimum eligibility requirements for coordinating, consulting, and administering practitioners and understands that amendments have been made that address the concerns raised. 

However, there are outstanding issues with the NSW Bill that AMA (NSW) is seeking to be addressed. 

Time period between the first and final request
With regard to the time period between the first and final request, AMA (NSW) proposes that the designated period in Schedule 1 be extended to nine days to match that in other jurisdictions. 

In the current Bill, Clause 49 of the NSW Bill provides that a patient’s final request to the patient’s coordinating practitioner may not be made until five days after the first request was made.

There is provision in the NSW Bill for this period of time to be shortened if, in the opinion of the coordinating practitioner and the consulting practitioner the patient is likely to die or lose decision-making capacity in relation to voluntary assisted dying before the end of the designated period (clause 49(2)). 

Under section 38 of the Voluntary Assisted Dying Act 2017 (Vic) (the Victorian Act) and section 48 of the Voluntary Assisted Dying Act 2019 (the WA Act), there must be a period of nine days between the first and final request, and again there is provision to shorten that period if the person’s death is likely to occur before that time. 

(NSW) submits that the approach taken in Victoria and Western Australia is the preferred approach. The approach taken in those jurisdictions reflects a considered approach. The opinion of palliative care practitioners is that nine days makes an accommodation for those palliative care patients who may suffer delirium that subsides after a few days. 

In circumstances where there is the provision that allows for the time period to be shortened if determined to be necessary, there appears to be no persuasive reason for the five-day time period.

Assessment of capacity
With regard to assessment of capacity, under clause 27(1) of the NSW Bill, if the coordinating practitioner is unable to determine if the person has decision-making capacity or is acting voluntarily and without pressure or duress, he or she must refer to a psychiatrist or another registered health practitioner who has appropriate skills and training to make a decision. 

Under the WA Act and the Victorian Act, the relevant provisions (section 26 and 18 respectively) require referral to a registered practitioner with appropriate skills and training to make the assessment. 

(NSW) encourages consultations with the Royal Australian and New Zealand College of Psychiatrists regarding the appropriateness or otherwise of specifically referencing referral to psychiatrists. 

Administration of voluntary assisted dying substance
Clause 57(1) of the NSW Bill provides that a person may, in consultation with and on the advice of the coordinating practitioner, decide to self-administer a voluntary assisted dying substance or decide a voluntary assisted dying substance is to be administered to the patient by the administering practitioner for the patient. 

This provision is in the same terms as the provision in the WA Act save that the WA Act goes on to define the circumstances in which a practitioner-administration decision can be made. Those circumstances are when self-administration is inappropriate because of the ability of the patient to self-administer or patient’s concerns about self-administration or based on the method of administration that is suitable for the patient (section 56). Similarly in Victoria, a practitioner can only administer if the patient is physically unable to do so (section 48(3) of the Victorian Act). 

AMA (NSW) submits that the NSW Bill should be in keeping with the provisions of the WA Act, namely that the circumstances in which a practitioner may administer a voluntary assisted dying substance are confined. This provides protection for both patient and administering practitioner.

Membership of the Voluntary Assisted Dying Board
AMA (NSW) submits that there should be at least two registered medical practitioners on the Voluntary Assisted Dying Board (Part 10 of the NSW Bill). 

Noting the functions and powers of the Board, AMA (NSW) submits it is important for there to be medical practitioner input. 

The initiation of a discussion  regarding voluntary assisted dying
AMA (NSW) submits that clause 10(3) of the Bill that permits a healthcare worker to initiate a discussion regarding voluntary assisted dying provided the healthcare worker also discusses palliative care and treatment options available to the patient should be removed from the NSW Bill. A discussion regarding voluntary assisted dying is not a discussion for an acute setting. If a patient is in acute distress and / or pain, that is not the time for the initiation of a discussion regarding voluntary assisted dying. While it will not always be possible, ideally the discussion will be part of a considered discussion with a medical practitioner that canvasses treatment options, palliative care, and voluntary assisted dying. 

In Victoria, only a patient may initiate a conversation regarding voluntary assisted dying (section 8 of the Victorian Act). 

In Western Australia, a medical practitioner or nurse practitioner may initiate a discussion about voluntary assisted dying if the practitioner also informs the person about the treatment options available and the likely outcomes of the treatment options, and the palliative care and treatment options available to the person and likely outcomes (section 10 WA Act). 

AMA (NSW) submits that clause 10 (3) should be removed from the NSW Bill as a discussion regarding voluntary assisted dying is not a discussion for an acute setting and is undertaken by a medical practitioner ideally as part of a considered discussion and as to treatment options of palliative care and voluntary assisted dying.

Offences
AMA (NSW) encourages a review of the provisions of Part 7 of the Bill. 

There are some provisions in Part 7 that could be better expressed to make it clearer to those participating in the voluntary assisted dying process what their obligations are and the consequences for failing to meet them. For example, section 129 might be amended to reflect that following revocation of a self-administration order after an authorised supplier has supplied a prescribed substance for the patient, should the contact person fail to give the prescribed substance to an authorised disposer as soon as practicable and not later than 14 days after the day on which the decision is revoked, commits an offence. 

For provisions such as section 123 (unauthorised administration of a prescribed substance), consideration should be given as to whether, given the penalty, there should be an element of intention. The Victorian Act includes an element of intention in a number of offences. 

The penalties for offences between jurisdictions vary considerably in some instances. For example, inducing the self-administration of a voluntary assisted dying substance is punishable by 6 years imprisonment and or 600 penalty units in Victoria. In NSW and WA, it is punishable by life imprisonment. It is important to understand the rationale for the position that will be adopted in New South Wales on these issues. 

While the term ‘pressure or duress’ is defined in the NSW Bill to include undue influence, coercion, intimidation and threats, the use of two terms suggests there may be a distinction between the two. The WA Act uses the term ‘coercion’ and in Victoria ‘undue influence’. AMA (NSW) submits the preferable course would be for NSW to take the same approach. 

The NSW Bill is silent on penalties for corporations. Under the Victorian Act there are penalties for corporations as well as individuals. AMA (NSW) submits that consideration to penalties for offences committed by corporations should be considered. 

AMA (NSW) also submits that the penalties for the failure to submit paperwork within a designated timeframe are unnecessary (for example clause 30(2) of the NSW Bill. 

AMA (NSW) submits that medical practitioners have a professional obligation to act in a patient’s best interest which includes ensuring they comply with relevant statutory requirements. If a medical practitioner fails to do so, there are existing regulatory processes that would be followed.

Palliative care funding
Whether the NSW Bill (in its current form or amended form) becomes law in NSW, there is an urgent need for greater funding and resourcing for palliative care services in NSW. Patients facing end-of-life decisions and with time-limiting illnesses must be provided with information and access to all available options.

People with life-limiting conditions deserve comprehensive support and access to all information and options for their futures.