Law Talks Episode: Voluntary Assisted Dying (VAD) in Australia – how the laws continue to evolve

Robyn: Good morning and welcome to another edition of law talks here on 4CRB. Today, we’re diving into an issue that’s been front and centre nationally, voluntary assisted dying or VAD. In recent months, we’ve seen Victoria propose amendments to its laws. The ACT has officially launched its scheme. And there’s been significant discussion around whether GPs should be allowed to talk openly with patients about voluntary assisted dying for those who are terminal.

To help us unpack where things stand, and what the recent changes mean, and why families need to understand how the process actually works, we’re joined by Senior Associate and Accredited Aged Care Professional, Larisa Kapur from Attwood Marshall Lawyers. Thanks for joining us, Larisa.

Larisa: Thanks for having me, Robyn.

Robyn: Well, to start us off, what exactly is voluntary assisted dying and how does the process generally work across Australia?

Larisa: So voluntary assists are dying, often referred to as VAD or VAD. It’s a legal process that allows an eligible adult with an advanced or progressive and incurable medical condition to choose the timing and manner of their death.

It’s essentially designed for people who are suffering and who still have full decision making capacity. So the emphasis is on voluntary choice, personal autonomy and robust safeguards.

Look, while each state has its own legislation, Robyn, the criteria broadly is consistent nationwide. So to access that VAD, a person must be an adult Australian citizen or permanent resident, and usually reside or a resident of the state where you know the laws will apply.

So they have to have an advanced progressive disease, illness or medical condition that is a, incurable and will cause death within a relatively predictable time frame. It’s dependent on each state, but often within six to 12 months depending on, you know which state it is, and is causing intolerable suffering that cannot be relieved in a way the person finds acceptable. So having decision making capacity is important as well and making the request voluntarily without any coercion.

Robyn: So, Larisa, where is VAD available?

Larisa: Well, as of now VAD is legal in most Australian states. Victoria Western Australia, Tasmania, South Australia, Queensland and New South Wales all have legislation already in force. Whereas we have the ACT and Northern Territory, they have passed laws but are in the process of establishing their systems, operational, start dates and things like that.

Iin Queensland and New South Wales, the schemes are active and operating.

Each state has its own oversight body and set of procedures, but the overall model is similar, you know nationwide.

Robyn: So, as you say, the different states have a different set of procedures. But how does the VAD process generally work?

Larisa: Well, Robyn, although the details vary by state, the steps usually include, you know, you make that first request, so the person must make a clear verbal request to a doctor who is authorised to participate in the VAD and the doctor must be trained and registered under the relevant state scheme.

Secondly, would be the first assessment, so that doctor completes an eligibility assessment confirming the medical condition, prognosis, you know, suffering and capacity of the person.

Then there’s a second independent assessment. So, a second doctor are independent of the first and separately trained, must also assess eligibility.

Both doctors must agree that all criteria are met, then there will be a written declaration or the final request, so the person must make a written declaration, witnessed appropriately, and then a final request after a mandated period.

In many states there is a minimum waiting period between the first and final request, often about 9 days. Though it can be shortened if death is imminent. There’s also the final review and approval. So, the coordinating doctor conducts a final review to ensure, I guess every safeguard has been met and lodges the necessary documentation within the state oversight body.

And then there’s the administration of the substance. So, if approved, the person may choose to self-administer, or if the law allows, and they cannot self-administer then clinical administration. So, this varies by state and a VAD permit or authorization is issued before any medication can be dispensed.

Robyn: So, Larisa, this is a huge topic and a huge choice. Are there safeguards in place?

Larisa: Every state has built strict protections into its legislation, so they include, you know, multiple independent medical assessments, mandatory waiting periods, written declaration and strict witnessing rules.

There’s oversight bodies in place that review compliance at every stage, requirements for doctors to rule out coercion. There’s mandatory reporting and record keeping and only specially trained practitioners may participate, so these measures ensure the process is carefully controlled, also transparent and you know it, essentially protected against misuse.

So a key point is that the VAD is voluntary from start to finish and I think it’s important to note that the person seeking the VAD can change their mind at any time. So no doctor, pharmacist, nurse or healthcare service is ever compelled to participate and patients must retain decision making capacity through to the final authorization and in most cases again at the time of the administration.

Robyn: Yeah, that’s a big thing, isn’t it? And at least there are those comprehensive checks. We’ve seen headlines recently about the ACT launching its VAD scheme. What’s significant about the ACT model compared to the other states?

Larisa: Good question. So basically, on November 3rd, the ACT enacted its voluntary assisted dying scheme. They were the second last Australian jurisdiction to legalise it. Unlike other jurisdictions, the ACT scheme does not require someone to have a diagnosed time frame until death. So that’s a bit different.

Robyn: To the six to 12 months that the other states generally adopt?

Larisa: That’s right. And the ACT model may represent it’s been referred to as the next generation approach to VAD in Australia. And that’s because there’s a broader practitioner based. It includes nurse practitioners who are able to participate. A more flexible assessment of prognosis, a strong emphasis on autonomy and choice as well. They’re the key. However, it’s important to note that the eligibility criteria still require an advanced and progressive illness expected to cause death and intolerable suffering, it’s not an anything goes model.

Robyn: Okay. Victoria has proposed amendments to expand its legislation. What are the key changes being discussed there?

Larisa: One of the big changes in Victoria is that the amendments have now passed the state’s Parliament to no longer prevent doctors from raising VAD as an option for terminally ill patients. Ultimately removing that gag clause that prevented doctors from discussing VAD with their patients.

So, there are also changes to the eligibility criteria that mean people with neurodegenerative disease will no longer need a third prognosis if their expected lifespan is between 6 and 12 months. And since Victoria first passed the laws giving terminally ill patients the opportunity to access the VAD, 1,683 Victorians have accessed that scheme already.

Robyn: Yeah. Okay, now there’s also political discussion in New South Wales. Religious leaders have publicly pressured Labor over VAD laws. What’s happening there?

Larisa: Well, more than 40 religious leaders and organisations have signed a joint statement calling for Labor to give faith-based aged care facilities the right to refuse euthanasia in their homes, following a renewed effort by the Liberal government to introduce the reforms. Under the current laws, faith based aged care providers in New South Wales are required to facilitate euthanasia on their premises, unlike their counterparts in Victoria, Western Australia and Tasmania, where their right to refuse is protected.

Now the general feeling amongst religious representatives is that the amendment would carry significant implications for communities whose beliefs about the sanctity of life and the nature of care are rooted in long held and sacred traditions.

So as always, it’s a very controversial debate. Arguments for and against VAD are highly complex and raise practical and ethical issues always.

Robyn: Yeah, it is a very polarising topic. One issue that keeps coming up is why GPs don’t always talk openly about that. Can you explain the gag clause that you just referred to and what changes are underway?

Larisa: Well, Victoria is making progress to remove the GP gag clause in the current legislation. This means GPs will be able to raise voluntary assisted dying with their patients for the first time.

The idea behind the amendment is to remove unnecessary access barriers, improve clarity for practitioners, strengthen safety measures and make the system fair and more compassionate. So, you know, patients had to bring this up themselves before the doctor could discuss with them.

So I guess Victoria’s trying to eliminate that and make it a little bit easier to get information on it to begin with.

Robyn: Start the conversation.

Larisa: That’s right. And if we look at it, the Federal Criminal Code originally prevented doctors from discussing VAD via telehealth, so there’s risk of being seen, as you know, initiating suicide. So, patients needed to raise the topic themselves to start the conversation and many are not even aware of what the VAD you know, rules and things are anyway.

Robyn: So, Larisa, what should patients or families do if they’re considering VAD but they’re not sure where to start?

Larisa: Well, be direct. So, ask your GP directly. The onus is still on the patient to initiate the conversations in most states. So, I understand that not all doctors will participate. Now they can consciously object. Each state and territory has a VAD navigation service or care team. So do bring it up and ask for assistance from your GP.

And importance of early conversations. So VAD requires capacity, so it cannot be accessed after losing the decision making ability. So, if you’re thinking about it, have the discussion now.

Robyn: Yeah, have the early conversation. So, for families navigating end of life decisions more broadly, how does VAD fit with estate planning and advanced care planning?

Larisa: Good question. It’s important to note that VAD is unable to be requested within your estate plan.

So, you can’t list it in your enduring power of attorney or advance healthcare directive. It’s just not possible. However, these documents are still vital because if something happens as your health declines and you lose decision making capacity, you want to ensure that someone you trust knows your wishes and is able to act on your behalf.

Understanding that attorneys cannot request VAD on someone’s behalf. It must be voluntary and personally initiated by the individual who has decision making capacity. Whether it’s preparing your enduring power of attorney, advance healthcare directive or having discussions about VAD, it’s important to have clear communication with family to reduce the conflict and ensure your wishes are known and respected if that time comes.

Lawyers can help ensure documents reflect values and preferences. So, it’s, I think, important to get that properly noted.

Robyn: Larisa, thanks for shedding light on this sensitive and important topic. I’m sure it will be debated on both sides of the equation.

Larisa: Thank you so much for having me.

Robyn: You’ve been listening to law talks here on 4CRB, which you can hear every Friday morning from 9 o’clock.