This article was co-authored by Cara Cross, Paralegal.
On 29 November 2017, Victoria became the first state in Australia to pass legislation allowing terminally ill Victorians to end their life. Four years on from Victoria’s introduction of the Voluntary Assisted Dying Act 2017 (VAD Act), Australia has demonstrated greater support for VAD, with most Australian jurisdictions making plans to introduce similar legislation or being well underway. As the VAD Act will be reviewed by the Health Minister at the end of this year, it is therefore instructive to consider how the VAD Act has operated practically and legally for practitioners.
Containing 68 safeguards, the VAD Act was intentionally drafted to be the most conservative legislation in the world. Although the nature and scope of the VAD Act is comprehensive, its operation has raised a number of concerns amongst practitioners.
A qualitative study was conducted in June 2021 on the opinions of participating doctors on the regulation of voluntary assisted dying in Victoria. Practitioners will be acutely aware that section 8(1) of the VAD Act stipulates that a registered health practitioner must not initiate a discussion about voluntary assisted dying or suggest voluntary assisted dying to a person. Whilst intending to function as a safeguard against undue influence, practitioners from the June 2021 study noted that this could operate as a barrier for those from a non-English speaking background or with poor health literacy. Some practitioners reported feeling ‘morally compromised’, ‘deceitful’, ‘intellectually dishonest’ or that they were ‘withholding information’ about the full extent of a patient’s options. Other practitioners felt this was an appropriate safeguard against undue influence. As practitioners can be subject to regulatory action by Ahpra for suggesting voluntary assisted dying, it is not unreasonable for practitioners to adopt a conservative approach when divulging information to a patient.
Posing a further barrier to accessibility and a risk for practitioners is the preclusion of the use of Telehealth to provide information regarding voluntary assisted dying. DHHS Guidance provides that using telephone, email or Telehealth ‘could be a breach of the Commonwealth Criminal Code Act 1995, sections 474.29A and 474.29B’. Participants in the June 2021 study heavily criticised this, particularly during the COVID-19 pandemic, as further entrenching the disparity in access to medical treatment for terminally ill patients living rural or remotely. Further, there were criticisms that practitioners are required to meet pharmacists in person to transfer a prescription for the medication, which can cause unreasonable delays. Some practitioners acknowledged the merit in requiring at least one face to face consultation to ensure that a patient is genuinely acting voluntarily and acknowledged Telehealth as having significant limitations.
As the Minister’s review of the VAD Act approaches, it is crucial to consider the observations, experience and insights of practitioners and how genuinely accessible the VAD system is in light of the reported deficits. The framework in Victoria would benefit tremendously by providing practitioners with practical supports and easing burdensome safeguards that can operate functionally to create a greater disparity in access to voluntary assisted dying.
Read other items in the Australia Healthcare Brief - September 2021
