Up until recently, physician assisted dying has been a somewhat taboo topic in Australia. Whilst the topic it is still met with some controversy, last year Victoria passed the Voluntary Assisted Dying Act 2017 (“the Act”). This Act is the first of its kind in Australia. Although, physician assisted dying has been legal in countries such as Canada for some time.
In essence, the Act creates a lawful means whereby physicians can deliberately end the life of a patient. There are many safeguards embedded in the Act, to protect against its misuse. For example, the request must come from a patient experiencing a condition that is:
- Advanced, progressive and will cause death;
- Expected to cause death within but not exceeding six months [or 12 months for those experiencing neurodegenerative conditions]; and
- Causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.
Further, the Act makes it unlawful for a patient’s medical practitioner to initiate discussions around assisted dying.
The critical question then becomes: at what point does a patient reach the threshold of having initiated the discussion? For example, is it enough that they express a desire to die rather than live? Or does the patient have to make a direct request in relation to physician assisted dying? The Act suggest the latter threshold (ie the request must be both clear and unambiguous).
A practitioner is said to engage in unprofessional conduct, when they initiate discussions with a patient around assisted dying. Moreover, under the Act, a physician faces a maximum of 5 years imprisonment for inducing a person to make a request for voluntary assisted dying.
With the Act due to come into force on 19 June 2019, it will be interesting to see how many cases of physician assisted dying arise in Victoria before the New Year commences. More so, I wonder how long it will take New South Wales to follow Victoria’s direction, or whether they indeed will? I have no doubt NSW policymakers will be closely observing how the Act unravels in years to come.
It is important to note that while physician assisted dying is a modern phenomenon in Australia, practitioners have been “lawfully” shortening patient lives for over half a century. The “double effect” method, as it is called, involves the prescription of palliative drugs, with the primary intention of relieving a patient’s pain symptoms. While the medication alleviates the patient’s pain, it also shortens their life. This is a discussion for another time.
Update: December 2019
NSW is yet to reconsider introducing physician assisted dying legislation, with the last attempt being in 2017, where the Voluntary Assisted Dying Bill failed to pass the Upper House (ie House of Representatives).
Physician assisted dying recently became legalised in Western Australia (on Tuesday 10 December), although the relevant WA Act is not expected to come into effect until 2021. It will operate in a similar way to the scheme in Victoria.