Share
This article was originally published in AMA Victoria's VICDOC, Spring 2024
On 19 June 2019, the Voluntary Assisted Dying Act (2017) (Vic) (VAD Act) came into effect, making Victoria the first state in Australia to pass Voluntary Assisted Dying laws. Patients accessing VAD are able to participate in organ donation after circulatory death (DCD). The implication of both VAD and DCD have rigorous and strict application processes in place. Globally, they remain as some of the most conservative and highly regulated frameworks. We examine the practical implications for those seeking to access VAD, including in the context of DCD, and highlight the difficulties in rectifying the inconsistencies between the VAD Act and the interpretation of the Criminal Code Act 1995 (Criminal Code).
A national and international comparison
Since the commencement of the VAD Act, all other Australian states have passed legislation facilitating and regulating VAD methods. NSW passed the Voluntary Assisted Dying Act (2021) (NSW) on 26 November 2021, commencing in November 2023. On 1 January 2023, Queensland became the fourth state to make available VAD to patients seeking a peaceful and pain-free end to their life.[1] On 5 June 2024, the Voluntary Assisted Dying bill 2023 was passed by the Australian Capital Territory (ACT) Legislative Assembly 20 votes to 5, and it is expected to commence operation in the ACT on 3 November 2025. The Northern Territory is now the only jurisdiction in Australia that has not introduced VAD, though the NT Government is currently considering the introduction of such laws.
Internationally, Australia is the fifth country to allow organ donation after VAD. Canada, Belgium, Netherlands and Spain all have programs that facilitate organ donation following VAD, with Canada acting as pioneers in this space. In Canada alone, approximately 6% of organ donations originated from VAD patients.[2] Globally, over 300 people accessing VAD have donated organs, providing necessary life-saving care to over 1000 individuals worldwide.[3]
Organ donation and VAD
As a result of the VAD legislation in Australia, reform has been made to the organ donation process across Australia, so that patients seeking to access VAD are also able to engage in organ donation. Following its introduction, various states in Australia have had patients consent to organ donation after VAD.
In September 2023, a Victorian woman became the first person in Australia to become an organ donor following VAD. Her decision helped save the lives of four people on the donation waitlist. Previous to VAD, facilitated donation meant that “…only 1-2% of deaths in hospital occur[ed] in a way that donation is possible…”.[4] As Dr Rohit D’Costa (DonateLife Victoria) stated, “Donation after VAD provides an opportunity for people to donate, who would otherwise not have been suitable”. As a result, the number of organ donors resulting from deaths in hospital is set to increase to 10-15%.[5] Of those accessing VAD, this could see up to 15 patients a year suitable and willing to donate.[6]
The process for patients donating organs in the context of VAD is again heavily regimented. Patients are required to have the VAD medication administered in a hospital, unlike non-organ donating VAD patients. The organ donation process is also deferred, until VAD permits have been granted to individuals. Once a permit has been granted, the DonateLife Victoria team will confer with the patient, their family and/or support person, and the relevant approved medical practitioner to provide organ donation information. If the patient is assessed as a suitable donor, DonateLife Victoria will need to obtain formal consent from the person to initiate further steps.
The current regulations also mean that patients dying of advanced-stage cancer are not eligible to donate their organs. However, eye or tissue donation is available to these patients. Persons with neurodegenerative diseases, such as Motor Neuron Disease (MND) or cardiovascular disease and respiratory failure, may be suitable for donation. These patients may be able to donate their heart, kidney, lungs and liver.
The impact of recent case law and the criminal code
Whilst the VAD Act has brought clarity and opportunity for many patients seeking to end their lives, it has also brought controversy given its inconsistencies with the definition of ‘suicide’ under the Criminal Code. The Federal Court of Australia case of Carr v Attorney-General (Cth) (‘Carr’)[7] sought to challenge the definition of suicide under the Criminal Code, noting that interpretation of the Criminal Code meant that VAD was essentially, a criminal offence. In Carr, His Honour Abraham J rejected submissions that the definition of suicide ought to be narrowed, and instead widened the scope of the term “suicide”. His Honour’s judgment confirmed that the act of consulting a patient for VAD through carriage service (such as telephone or email) remains a criminal offence, despite being authorised by the VAD Act. It naturally follows that the authorised provision of information about particular methods of committing suicide via a carriage service remains criminal conduct under the Criminal Code.
What this means for health practitioners
The introduction of the VAD Act was aimed at empowering patients to take control of their own death. Such ability to influence the means of a patient’s own death has been further expanded by the ability of patients to also engage in DCD in this context. However, the decision of the Federal Court not only highlights the limitations for patients seeking VAD, but also highlights the complexities in regulating such a new and complex area of medical practice in conjunction with the traditional norms of society. Approved Medical Practitioners ought to be familiar with the VAD Act, as well as the implications of other legalisation such as the Criminal Code. At its highest, a failure of Approved Medical Practitioners to abide by the VAD Act and associated legislation could expose medical practitioners to a risk of criminal prosecution, simply for attempting to treat their patient’s incurable conditions and their associated prolonged pain.
[1] Voluntary Assisted Dying Act 2021 (Qld).
[2] Factsheet: DonateLife (n 1).
[3] Ibid.
[4] ‘Australian first – Victorian woman donates organs after Voluntary Assisted Dying’, DonateLife Victoria, (Webpage) <https://www.donatelife.gov.au/news-events/news/2023/australian-first-%E2%80%93-victorian-woman-donates-organs-after-voluntary-assisted-dying>.
[5] Ibid.
[6] Ibid.
[7] [2023] FCA 1500 (‘Carr’).
Healthcare
Australia