Attwood Marshall Lawyers Wills & Estates Senior Associate and Accredited Aged Care Professional Debbie Sage joins Robyn Hyland for “Law Talks” on Radio 4CRB to discuss a recent study published in the Medical Journal of Australia, which explores people’s experiences who have accessed the voluntary assisted dying scheme, including any hurdles they came up against during the process.
Voluntary Assisted Dying Laws
All six states in Australia have now passed voluntary assisted dying laws, with five out of six states having laws in operation, including Queensland.
New South Wales is the only state yet to commence the laws, which will take place on 28 November 2023. Voluntary Assisted Dying remains illegal in the Northern Territory and the ACT.
These laws provide for and regulate access to voluntary assisted dying, defined as “the administration of a voluntary assisted dying substance and includes steps reasonably related to administering that medication”.
The eligibility criteria to access the scheme are slightly different in each state. In Queensland, a person is eligible to access the scheme if they are:
- Over 18 years of age; and
- Have an illness or medical condition that is:
- Advanced, progressive and will cause death within 12 months (some states have shorter timeframe requirements, such as Victoria, which states that a person must expect to die within six months or, for someone with a neurodegenerative disease, illness, or condition, within 12 months);
- The individual must be suffering intolerably because of their illness; and
- The individual must have decision-making capacity.
If someone is deemed eligible to the criteria above, then they must follow a stringent process to apply for the scheme.
Voluntary Assisted Dying (VAD) and access for those suffering from dementia
The requirement for people to have decision-making capacity in order to be eligible to access the Voluntary Assisted Dying Scheme means that people living with dementia may not be eligible to access the scheme. This factor has raised a debate about whether the eligibility criteria should be reviewed.
Dementia Australia notes that people with mental illness or disabilities, including dementia, have been excluded from the various forms of State-based VAD legislation. We also note that most legislation stipulates that only people whose terminal disease will cause death within six months, or 12 months for neurodegenerative conditions, qualify. The limited time frame stipulated in these legislative conditions would potentially exclude many people with neurodegenerative conditions, including dementia, from qualifying for VAD. The eligibility criteria in relation to capacity could also effectively prevent people living with dementia from accessing the existing VAD legislation.
Some people with dementia maintain a degree of capacity for a significant time, while others will experience a rapid deterioration.
There is concern about the potential for people with dementia who cannot make an informed choice about VAD to be vulnerable to influence or manipulation, which is why it is such a complex issue and why there are strict rules in place.
With a review of Voluntary Assisted Dying Laws looming, a legal requirement set when the laws were first enacted, there has been a call for the review to consider expanding the eligibility criteria to include those with dementia and cognitive diseases. However, at this stage, Ministers have ruled out major reform.
For now, the review will not consider any changes to the legislation. Still, it will evaluate the current systems, processes and practices that underpin the scheme’s operation, including safeguards and equity of access.
Access to Voluntary Assisted Dying: A qualitative study of family caregivers’ perceptions of barriers and facilitators
In June this year, The Medical Journal of Australia published a qualitative study of family caregivers’ perceptions of barriers to and facilitators of access to voluntary assisted dying in Victoria.
The study encompassed semi-structured interviews, which took place between August and November 2021, with people who had applied for voluntary assisted dying or their family caregivers.
There were 33 participants who took part in the study; all but one of the interviews were with family caregivers after their relative’s passing.
The study highlighted five critical barriers for people accessing the scheme in Victoria.
The barriers identified were:
- The difficulty in finding doctors willing and qualified to assess eligibility for the scheme;
- The application process often took too long, with delays often reported;
- Some aged care facilities and hospitals objected to being involved the scheme. This often meant that patients within these facilities could not be assessed for the scheme, nor receive the medication on-site if they were eligible. Some people had to leave their place of care to gain access, but that depended on their ability to find alternative accommodation and move out of their care facility.
- Victorian Law prohibits medical practitioners from raising the scheme with their patients, which meant patients needed to be aware that they had to be the ones to initiate the conversation and ask about it.
- There is also a prohibition on telehealth consultations, which means if patients cannot travel to the nearest certified medical practitioner, they cannot have these discussions via a telehealth consultation. This required some patients to travel to appointments, causing pain, distress, and hardship. Access was particularly difficult for people in regional areas.
The study also concluded that adequate support for doctors, navigators, and other facilitators of access is vital for the effective functioning of the overall process.
Despite the barriers identified, it has been determined that access to the scheme has since improved, and people generally feel supported while navigating the application process once they have found a coordinating practitioner or navigator.
Steps that medical professionals must take to become an authorised voluntary assisted dying practitioner (in QLD)
Depending on which state or territory you practice in, the process and eligibility criteria will differ slightly to become an authorised VAD practitioner.
In Queensland, there are strict eligibility criteria outlined on QLD Health’s website, depending on whether you are a nurse practitioner, medical practitioner, or an overseas-trained specialist.
First and foremost, medical practitioners must meet the initial criterion, which generally outlines how many years they have practised and several other key factors.
Once this initial criterion is met, there is a 6-step process to follow to become certified. The process is as follows:
- Complete an application online on the QLD health website. The application must include referees to support the application.
- Once completed, the application must be submitted to the QVAD review board. The board will follow a verification process to screen the application, ensure it is complete, contact referees and review the applicant’s eligibility.
- The board will then make a recommendation to the Chief Medical Officer who is the final decision maker.
- Once the Chief Medical Officer has made a decision, the medical professional will receive a notification outlining if they have been deemed eligible and can commence the mandatory training.
- Training is completed online. There are 12 modules to complete.
- Once training is complete – the medical practitioner is sent the protocols that must be followed for the use of the substance when administering the medication.
Following this, the Chief Medical Officer then receives correspondence for final authorisation.
Support is a crucial resource for medical practitioners involved in voluntary assisted dying
The significance of support for medical professionals cannot be understated, particularly due to the unchartered nature of this practice for doctors and nurse practitioners.
The assistance currently available encompasses not only the procedural aspects of the scheme, but also extends to addressing social and emotional well-being.
Queensland Health (or the relevant state body) offers an array of services, including meetings, workshops, and peer support and mentoring programs.
In Queensland, the Queensland Voluntary Assisted Dying Support Service (QVAD) caters to healthcare providers and also extends its services to individuals seeking access to voluntary assisted dying scheme, as well as caregivers and family members of those interested in the program.
Planning for your future health care and end-of-life decisions – what else can you do?
Conversations revolving around the Voluntary Assisted Dying Scheme naturally evoke a spectrum of emotions, prompting people to reflect on their preferences should their health deteriorate significantly, leading to a diminished quality of life.
Undoubtedly, the eligibility criteria for the voluntary assisted dying scheme rightfully uphold stringent standards. For those who do not meet these criteria, alternative avenues exist to ensure that their healthcare choices are respected even in the face of declining health.
Broaching discussions about end-of-life care is never easy. Nonetheless, there are two essential tools, distinct from voluntary assisted dying laws, that empower individuals to have their say about their future. These tools include an Enduring Power of Attorney, an Appointment of Enduring Guardian (if you are in NSW), and an Advance Health Directive.
These documents hold profound authority, enabling individuals to articulate their end-of-life wishes and provide clear instructions for those who might need to make decisions on their behalf or advocate for their preferences.
This holds particular relevance for individuals grappling with conditions like dementia, rendering them ineligible for the voluntary assisted dying scheme. An Advance Health Directive is the closest means to proactively shape one’s end-of-life care.
Crucially, these documents don’t facilitate applications for the scheme, however they allow you to stipulate the desired comfort care and the administration of and/or withholding of life-sustaining treatments.
Such choices often pose a heart-wrenching dilemma for families; providing explicit instructions can help alleviate this burden.
Attwood Marshall Lawyers – supporting people through every stage of life
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