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The debate over the WA government’s voluntary assisted dying (VAD) legislation is currently in full swing.

 

The principal purpose of the draft Voluntary Assisted Dying Bill 2019 is to provide for and regulate access to VAD and to establish the Voluntary Assisted Dying Board to oversee the process. This article cannot begin to canvass all of the twists and turns of the wider euthanasia debate, but will instead focus on some of the key aspects of the draft Bill that has passed the lower house of the WA Parliament.

The Bill sets out many criteria eligibility for provision of a VAD substance. The main criteria as follows:

  • the person must be 18 and an Australian citizen or permanent resident (and ordinarily resident in WA for at least 12 months);
  • the person is diagnosed with at least 1 disease, illness or condition that:
    • is advanced, progressive and will cause death; and
    • on the balance of probabilities will cause death within 6 months; or
    • 12 months if the condition is neurodegenerative; and
    • is causing suffering to the person that cannot be relieved in a tolerable manner;
  • the person has decision-making capacity in relation to VAD;
  • the person is acting voluntarily and without coercion;
  • the request for access to voluntary assisted dying is enduring; and
  • a person is not eligible for access to voluntary assisted dying only because the person has a disability or is diagnosed with a mental illness.

 

The Bill sets out a thorough process for a person to obtain access to a VAD substance, as assessed against the above criteria. Some of the main steps include:

  • the person must make a ‘first request’ of a medical practitioner for access to VAD who must notify the VAD Board of the request;
  • the practitioner must assess the patient against the above criteria and advise the patient on prognosis, alternative options and risks of administering a VAD substance;
  • the practitioner must complete a written assessment and lodge it with the Board;
  • the practitioner must refer the patient to another medical professional for a consulting assessment;
  • the consulting professional must complete the same assessment above, notify the patient and the Board;
  • the patient must then make a written declaration seeking access to VAD; and
  • the patient must then make a final request to the practitioner.

 

It is not yet clear how this process above will operate in practice. All legislative schemes struggle to some degree to balance the practical realities of how the law will operate alongside its stated aims.  This is even more crucial when the subject matter is the wishes of a dying person who is in an extremely vulnerable situation and is themselves trying to balance pain, grief and potentially family pressure.  Clearly these are not decisions to take lightly.

 

Some further important points to note about the draft Bill include:

  • There is a minimum time frame for the above steps to be completed (not within 9 days of the first request) that applies, unless the person is likely to shortly die or lose capacity to make a decision regarding VAD.
  • A family member, beneficiary of a Will or someone who may otherwise benefit financially or in any material way from the death of the patient making the declaration, is not an eligible witness to a written declaration.
  • The VAD substance can be self-administered or administered by a medical professional.
  • Medical professionals are able to refuse to participate in the process on the grounds of conscientious objection.
  • Finally, the draft Bill states that for the “a person who dies as the result of this Act….does not commit suicide”.

 

There is some way to go before VAD becomes legal in WA and it is still not clear what exact form a VAD scheme will take. What is clear is that VAD is a deeply personal intersection between legal, medical, religious and cultural frameworks and the community at large will require some time to come to grips with any new scheme.

 

We look forward to providing a future update about the developments in this deeply sensitive area of law.

 

About the authors:

After completing a double degree Bachelor of Arts (Politics and International Relations) and a Bachelor of Law, Matthew was admitted into the Supreme Court of Western Australia in 2016. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning

 

 

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