At the time of recording, Queensland’s Voluntary Assisted Dying Bill of 2021 is before the Parliament, to be debated in September 2021. And if passed, then the scheme will be implemented and Voluntary Assisted Dying becoming available from approximately early-2023. This follows the introduction of similar laws in Victoria, Western Australia (where their schemes are now operative), with Tasmania and South Australia having already passed laws and are in the process of implementing their schemes. We take this opportunity to briefly look at the operation of the proposed scheme and some of the broader implications for terminally ill persons.
What is Voluntary Assisted Dying?
The idea behind these laws is to enable an eligible person who is suffering and terminally ill, to choose the timing and circumstances of their death. It is not intended to detract from or replace available palliative care treatment options.
What are the Eligibility Criteria?
There are effectively 5 proposed eligibility requirements in order to access Voluntary Assisted Dying:
Firstly, the patient is experiencing ‘intolerable suffering’, of an advanced, progressive condition that will cause death, and that death is expected within 12 months.
Secondly, the patient has decision-making capacity.
Thirdly, the patient must be acting voluntarily and without coercion.
Fourthly, the patient must be 18 years or older.
Lastly, the patient must satisfy certain residency criteria, and must have ordinarily been a Queensland resident for at least 12 months prior to requesting Voluntary Assisted Dying.
What is the Procedure?
Step 1 – The patient, and not someone else on their behalf, must make a clear, unambiguous request to their doctor to access Voluntary Assisted Dying.
Step 2 – After the patient’s request, the treating doctor makes the First Assessment. This determines whether the patient fulfils the criteria to access Voluntary Assisted Dying. If eligible, the doctor gives the patient information about matters such as their condition, prognosis, palliative care options, risks, the process, and notifying the patient that they can discontinue their Voluntary Assisted Dying request at any time.
Step 3 – If the treating doctor considers the person eligible, then the patient is referred to another, independent doctor, who makes a similar, independent assessment. If that second doctor also considers the patient eligible to access Voluntary Assisted Dying, then they must give the patient information (similar to that in step 2).
Step 4 – After the 2 different doctors’ reviews, the patient can then make a second request for Voluntary Assisted Dying. This must be in writing, in an approved form, and must be witnessed by two independent adults.
Step 5 – The patient then must make a third request to access Voluntary Assisted Dying. Again, this request must be clear and unambiguous and made by the patient themselves – not by an attorney or family member. This third request must be made at least 9 days after the first request was made. A final review is completed by the treating doctor, certifying the request has been made in accordance with the legal requirements and that the patient is acting voluntarily and has decision-making capacity.
Step 6 – Procedures and decisions are made concerning the prescription and administration of a voluntary assisted dying substance of sufficient dosage to cause death.
So looking at the issue and draft legislation more broadly, there are some associated issues that are worth clarifying:
Firstly, requests for Voluntary Assisted Dying are restricted to the patient alone – that is, an attorney, family member or friend cannot make a request on their behalf. However, the patient’s request doesn’t need to be verbal – they just need to be able to communicate their decision.
Secondly, the patient still needs to have their own decision-making capacity. Even if a patient makes a request freely and voluntarily, they will not be eligible for Voluntary Assisted Dying if they lack decision-making capacity, and an attorney cannot implement the procedure on their behalf. Obviously, this could have ramifications for conditions that impair decision-making capacity, such as dementia.
Thirdly, the patient’s request has to be made voluntarily and free of coercion – and there are multiple review steps as safeguards to ensure the patient isn’t being forced or coerced in relation to Voluntary Assisted Dying procedures. In fact, the proposed laws would make it an offence to dishonestly, or by coercion, induce a patient to make, or revoke, a request for Voluntary Assisted Dying.
Fourthly, the patient can discontinue the Voluntary Assisted Dying process at any time.
Fifthly, under the proposed laws the person’s cause of death would be stated as their terminal condition – and not, for example, by Voluntary Assisted Dying or suicide.
This is just a brief overview of some of the operative matters related to the current Queensland Voluntary Assisted Dying bill. Obviously when operational, then there are likely to be broader implications surrounding end-of-life decisions and affairs.
Assuming Voluntary Assisted Dying is implemented in Queensland, then please know that O’Connor Ruddy & Garrett has a more than 80-year history of helping with estate planning. Contact us to arrange a free initial consultation and let our experience assist and guide you in getting advice and ensuring your affairs are in order and tailored to your circumstances.