Legislative reform offers new options at the end of life

By Dr Jayne Hewitt
Law Futures Centre

In May 1995 the Northern Territory Legislative Assembly passed the Rights of the Terminally Ill Act 1995 (NT), becoming the first jurisdiction in the world to legislate for assisted dying. The provisions in this Act spanned only 21 sections and were published in nine pages. They permitted a medical practitioner who, having received a request from a patient with a terminal illness, experiencing unacceptable pain, and suffering or distress, to terminate that patient’s life.[1] There were of course, provisions that acted as safeguards. These required, among other things, that the medical practitioner certify the patient was of sound mind and that their decision was made freely and voluntarily, after due consideration.[2] Whether or not the patient was of sound mind needed to be confirmed by a second medical practitioner. Having satisfied themselves that these conditions were met, the first medical practitioner was to be ‘guided by appropriate medical standards’ and consider ‘appropriate pharmaceutical information about any substance reasonably available for use in the circumstances’.[3] That is, the decision about what medication was to be administered, and in what dose, was one that could be made solely by the medical practitioner assisting with the death. There was no provision for the patient to self-administer the medication that would end their life. The Act required administration by the medical practitioner.[4]

Medical practitioners who assisted in terminating a patient’s life were required to keep certain records. These included noting any oral request for assistance, a certificate documenting the patient’s request and a record of the opinion of a second medical practitioner who certified the patient was of sound mind.[5] As soon as practicable after the death, the medical practitioner who provided assistance to terminate the patient’s life was required to report to the Coroner.[6]

Between Sept 1996 and March 1997 four people were assisted to end their lives in line with the provision of the Act.[7] There were to be no more. In March 1997 the Euthanasia Laws Act 1997 (Cth) was passed which effectively dismantled the Northern Territory law. Since that time there have been more than 40 attempts to enact legislation permitting those suffering with a terminal illness to choose when they die.[8] The number and frequency of Bills that have been proposed suggests that assisted dying is a practice of importance to the Australian community. Nevertheless, balancing the desire for choice about when to end a life with the need to protect vulnerable members of society has proved a constant challenge.

The State of Victoria has risen to this challenge and now become the first Australian state to successfully enact such legislation.[9] The passage of the Voluntary Assisted Dying Act 2017 (Vic), however, was not necessarily smoothed by the numerous preceding attempts; occurring only after a parliamentary inquiry, a Ministerial Advisory Panel expert report and extensive debate in both houses of the Victorian parliament. The level of public consultation and scrutiny of the Bill highlights the continued tension around the practice of assisted dying.

The Victorian Act comes into force on the 19^th June this year. Although Voluntary Assisted Dying Act 2017 (Vic) has a similar purpose to its Northern Territory predecessor, the need to balance choice and protection has resulted in a vastly different statutory framework. There are 143 provisions contained in the Act’s 137 pages, many of which are dedicated to ensuring its safe operation. There are much more stringent eligibility criteria which are to be assessed by at least two specialist medical practitioners. In contrast to the Rights of the Terminally Ill Act 1996 (NT), self-administration by the patient suffering with a terminal illness is the default position contemplated by the Act.[10] Medical practitioners must still prescribe the medication, but they are no longer required to rely on guidance from current medical standards. Prescribing and dispensing of the voluntary assisted dying medication is regulated, and can only occur after the issue of a permit by the Secretary of the Department of Health and Human Services in Victoria.[11] Consistent with this much more tightly regulated framework, reporting and independent oversight of the process is also substantially enhanced.[12]

Compliance with the legislative requirements of the Voluntary Assisted Dying Act 2017 (Vic) will no doubt require substantial patience and support, particularly in the early days. As one of the most conservative assisted dying frameworks in the world, others will look to see how it is operationalised. In particular, the Western Australian Government, who plans to introduce a Voluntary Assisted Dying Bill later in the year, and Queensland Government’s Health Committee who is currently inquiring into the views of the Queensland community in relation to voluntary assisted dying will be keenly watching the implementation of the Victorian Act and its associated reforms. There can be no doubt, however, that after decades of thwarted efforts at law reform, the options for end-of-life care in Australia are finally changing.

[1] Rights of the Terminally Ill Act 1995 (NT) ss 4-5.

[2] Rights of the Terminally Ill Act 1995 (NT) s 7(1).

[3] Rights of the Terminally Ill Act 1995 (NT) s 7(2).

[4] Rights of the Terminally Ill Act 1995 (NT) s 7(1)(p).

[5] Rights of the Terminally Ill Act 1995 (NT) s 12.

[6] Rights of the Terminally Ill Act 1995 (NT) s 14.

[7] David W Kissane, Annette Street and Philip Nitschke, ‘Seven Deaths in Darwin: Case Studies under the Rights of the Terminally Ill Act, Northern Territory, Australia’ (1998) 352 Lancet 1097-1102.

[8] Lindy Willmott, Ben White, Christopher Stackpoole, Kelly Purser and Andrew McGee, ‘Failed Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics’ (2016) 39 UNSWLJ 1-45.

[9] Voluntary Assisted Dying Act 2017 (Vic).

[10] Voluntary Assisted Dying Act 2017 (Vic) s 47(1).

[11] Voluntary Assisted Dying Act 2017 (Vic) s 49.

[12] See e.g. Voluntary Assisted Dying Act 2017 (Vic) ss 45—52, 93.