Feedback provided to the Voluntary Assisted Dying Review Board over the past six months has highlighted the compassion and relief Victoria’s voluntary assisted dying scheme is providing to terminally ill people and their loved ones. Queensland looks to be next to introduce euthanasia laws with Premier Annastacia Palaszcuk’s election campaign promise putting a bill before Parliament as early as February 2021. Legal Practice Director Jeff Garrett discusses this contentious area of law and how individuals and families can be empowered to consider all the options available to them.
Introduction
Voluntary assisted dying, or euthanasia, involves a process to access medication to enable a person to legally choose the manner and timing of their death. This process forms part of a commitment to end your own life and is only currently available to eligible terminally ill patients in Victoria.
Western Australia has passed legislation which enables voluntary assisted dying to become a choice and is expected to come into effect 1 July 2021.
More than 5000 public submissions were made, and 41 public meetings held across Queensland in 2019 as the state considered the legislation of euthanasia. Now, with a 15-month parliamentary committee report prepared, voluntary assisted dying will be addressed by the new Parliament in the new year as part of the Queensland Labor Government’s re-election promise to legalize euthanasia. The right to die is also on the agenda in Liberal-governed South Australia and Tasmania
Many people have strong views on the topic, whether it be opposing euthanasia on the grounds of personal or religious beliefs, or strongly supporting it for the sake of compassion. Any family who has gone through the process of having a parent or grandparent who has a terminal illness and has suffered terribly, would be the first to put their hand up to say if voluntary euthanasia was available to them, they would have opted for it.
Eligibility for Euthanasia in Victoria
Medical Practitioners, the Secretary of DHHS and the Voluntary Assisted Dying Review Board all play important roles and have responsibilities defined within Victoria’s Voluntary Assisted Dying Act (2017). It’s a strict process and it can take time.
In Victoria the criteria for eligibility for euthanasia is as follows:
- You need to have a terminal illness;
- There must be no argument that you are going to die as a result of that illness or condition within 6 months, or 12 months for a neurodegenerative condition;
- You need to have certification from at least two of your treating doctors;
- You need to have a psychological assessment to confirm that you understand the issues and that you are intent on going ahead;
- An application needs to be made to the Victorian Assisted Dying Review Board and you need to say “yes” to the application at least twice; and then
- The Victorian Assisted Dying Review Board needs to approve the application.
By law, the Board is required to report to Parliament every six months for the first two years this legislation has been enacted. The next report will be tabled by February 2021 and will cover the reporting period 1 July 2020 to 31 December 2020.
There have been a few complaints made relating to the time it can take to process these types of applications. There are a number of cases where it has taken so long that the person requesting euthanasia loses capacity by the time the approval comes through. One of the conditions is that whatever medication you take to end your life you must take yourself. You cannot have anyone else administer the medication. You can imagine there have been some cases where people have deteriorated from the date of their application and for whatever reason can’t administer their own medication to end their life, and this has caused significant stress to all impacted.
In a report to the Victorian State Parliament earlier this year, the Voluntary Assisted Dying Review Board found there were no cases where someone had died incorrectly, changed their mind, or anyone was found to have been unduly influenced. So far, the Victorian experience has been a success and certainly paves the way for other states to follow in their footsteps.
Legal issues
There are legal issues which stem from making the decisions to end your life. People have insurance policies, including superannuation with a Total and Permanent Disablement (TPD) or Death component attached to their policy. There are some policies which exclude suicide as a cause of death and in these cases the fund would not payout any entitlements to their member or member’s nominated beneficiaries. As euthanasia is voluntary assisted dying, this is a grey area with little distinction for superannuation and insurance providers to differentiate euthanasia from suicide.
The government needs to enact legislation to make voluntary assisted dying, for those who are eligible, legal. In doing so, these issues will not arise and there will be a clear distinction between suicide and euthanasia. This raises a potential constitutional clash between the states and the Commonwealth, with the current federal coalition government unlikely to enact legislation approving euthanasia. Indeed, the federal government overturned euthanasia laws in the ACT and Northern Territory. Inevitably, the issue of politics will continue to intervene in this very polarised area, and it will most likely take a change of government for these laws to be uniform across Australia.
Planning your end of life care
For Victorians suffering from a terminal illness, with less than six months to live, The Voluntary Assisted Dying Act (2017) provides a safe legal framework to choose the manner and timing of their death.
For citizens in any other state or territory, the closest you will get to planning your end of life care is by making an Advance Health Directive, an Enduring Power of Attorney, and of course ensuring you have an up-to-date Will so your estate and assets can be passed on as you wish when that time comes. These documents also exist to regulate the withholding or withdrawing of medical treatment.
It is impossible to know what will happen in the future concerning your health. You might have firm ideas about how you want to live the rest of your life and what measures you want taken as you approach your end of life care, and it is important to document these properly.
Advance Health Directive (AHD) in Queensland
The purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.
You cannot request euthanasia in an Advanced Health Directive – this would be in breach of the law. Under the Queensland Criminal Code, it is a criminal offence to accelerate the death of a person by an act or omission. It is also an offence to assist another person to commit suicide.
In an Advance Health Directive, you can make choices in relation to:
- Not wanting to be resuscitated;
- Not wanting life to be prolonged by using medication other than for your comfort (each state and territory has enacted laws to regulate the act of withholding or withdrawing medical treatment with the effect of hastening death);
- Instructions for your family regarding life support;
- Personal choices about aged care facility placement or living arrangements as your health deteriorates;
- Religious or cultural beliefs regarding certain treatment options;
- Choices regarding if you would like your body to be donated to science.
To be able to make an Advance Health Directive you must be over 18 years of age and have decision-making capacity.
An Advance Health Directive will clearly inform your appointed decision-maker of your wishes and values that need to be considered before medical treatment decisions are made on your behalf.
You may wish your Advance Health Directive to apply at any time when you are unable to make decisions for yourself, or you may choose for it to only apply if you are terminally ill.
Each state and territory have slightly different legislation and documents in place which serve to plan your advanced care. In New South Wales, the document you would need to make is called an Advance Care Directive. An Advance Care Directive is often also referred to as a Living Will.
It is recommended that you review these document every two years, or if/when there is a major change in your health status (e.g. if you are diagnosed with a serious illness).
Appointing an Enduring Guardian
Guardians appointed through Enduring Guardian (EG) and Enduring Power of Attorney documents (EPOA), or Administrators appointed by Queensland Civil and Administrative Tribunal (QCAT), can make personal, health, medical and financial decisions on the behalf of a person who has lost capacity.
A person of any age can lose capacity with a mental illness, brain injury, dementia or other condition. A Guardian can make health and welfare decisions for a person, including consenting to medical treatment on your behalf, but only if are unable to make those decisions for yourself.
There have been some significant changes rolled out in Queensland as of 30 November 2020 to guardianship laws and forms. To find out more about the changes, click here.
How can Attwood Marshall Lawyers help?
We’re here to help you achieve peace of mind that if anything suddenly changes with your health or personal circumstances, you have your legal affairs in order and your best interests will be taken care of. Attwood Marshall Lawyers have a team of lawyers who practice exclusively in this area. They can consider what legal documents you should put in place and how those documents should be structured to suit your individual needs.
Read more: Estate Planning 101
Read more: Appointing Guardians and Attorneys
UPDATE!
16 December 2020 – Voluntary Assisted Dying Laws won’t be introduced in QLD by February
Premier Annastacia Palaszczuk will break her election promise and will not be introducing voluntary assisted dying legislation by February 2021. The Queensland Law Reform Commission (QLRC) has asked for extra time to draft proposed legislation which will push back the date for when it can be introduced.
The QLRC won’t come back with a final report until May 10.
“The Commission agrees with the government that ‘reform in this area requires careful consideration’ which is ‘informed by views of stakeholders and other experts in the field’,” a statement by Queensland Royal Reform Commission chair Justice Applegarth said.
“… The Commission is committed to doing the best it can, in the time that it has been given, to recommend “the best possible legal framework for people who are suffering and dying to choose the manner and timing of their death in Queensland”.
“It hopes that it will be able to report and provide well-drafted legislation by its reporting date of 10 May 2021.”
