Accessing assisted dying in Victoria: how will it happen, exactly?

Last November, Victoria passed the Voluntary Assisted Dying Act, becoming the first Australian State to legalise assisted dying.

The Act comes into force on 19 June 2019.

How will a person lawfully use the Act?  This post provides a brief walk through the procedure established by the Act.

This is not the first time Victoria has been at the vanguard of law reform on a hotly contested bioethical issue.  In 1988, Victoria introduced Australia’s first advance directives legislation, the Medical Treatment Act (it was repealed on 12 March 2018, replaced by the Medical Treatment Planning and Decisions Act 2016).  Earlier, in 1984, Victoria passed the Infertility (Medical Procedures) Act 1984, the world’s first legislation regulating IVF and human embryo research,  now replaced by the Assisted Reproductive Treatment Act 2008.

Can’t talk about it

Prior to the Parliamentary vote, former Prime Minister Paul Keating argued passionately against the Act, writing that “The experience of overseas jurisdictions suggests that pressures for further liberalisation are irresistible”.

The Act is said to contain 68 safeguards to guard against abuse.

One of the most interesting safeguards is section 8(1), which states that a medical practitioner must not initiate a discussion with a patient that is “in substance about voluntary assisted dying”.

A doctor who does so engages in unprofessional conduct under (Victoria’s version of) the Health Practitioner Regulation National Law.

Section 75 of the Act also imposes mandatory notification requirements [to the Australian Health Practitioner Regulation Agency] on a medical practitioner who reasonably believes that another registered health practitioner has initiated a discussion about voluntary assisted dying, or offered to provide voluntary assisted dying in a manner that is not in accordance with the Act.

Mandatory notification requirements are imposed on an employer in the same circumstances (s 76).

Before assisted dying was legalized in Victoria, there was nothing unlawful about talking to a terminally ill person about assisted dying.  The topic was not “off the table”, so long as no action was taken.

But now, drawing a person’s attention to a lawful course of action under an Act of Parliament apparently amounts to reportable misconduct, in order to ensure that zealous health care workers do not nudge sick and distressed, aging or disabled people towards “euthanasia”.

Right to opt-out

There is no obligation on a medical practitioner to assist a patient to die under the Act.

Under section 7, a medical practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to provide information about assisted dying, to participate in the process the Act establishes, and to supply drugs or be present at the time an assisted dying substance is administered.

A complex process

With 143 sections, the Voluntary Assisted Dying Act is a complex piece of legislation.

This is intentional: the legislative requirements that must be satisfied before assistance in dying can lawfully be given are intended to act as safeguards against misuse.

Eligibility

Victoria’s assisted dying regime is only open to adults who have been resident in Victoria for at least 12 months – this is clear from section 9 [s 9(1)(b)].

This is intended to prevent Swiss-style euthanasia tourism – the kind of tourism illustrated in the film “Me before You” starring Emilia Clarke and Sam Claflin.

A person doesn’t meet the eligibility criteria for assistance unless they are suffering from an incurable disease that has reached such an advanced state that death is expected within 6 months, and the disease is causing suffering that is intolerable to the person [s 9(1)(d)].

One exception to this is in s 9(4), which allows a person to access assistance if they have a neurodegenerative disease that will cause death within 12 months.

Coordinating medical practitioner

The process of assisted dying under the Act begins when a person makes a “first request” for access to voluntary assisted dying to a registered medical practitioner (s 11).

This request may be verbal.  The medical practitioner may accept or refuse the request, but if they accept they must record the request, and become the patient’s coordinating medical practitioner (ss 13-15).

A coordinating medical practitioner must be either a medical specialist, or a vocationally registered general practitioner.

[A vocationally registered GP attracts higher Medicare rebates and special Medicare item numbers.  There are a variety of pathways to accessing these higher rebates, including through membership of the Royal Australasian College of GPs, or by meeting requirements for vocational registration by the General Practice Recognition Eligibility Committee.]

The coordinating medical practitioner must carry out approved assessment training and then assess whether the patient meets the eligibility criteria set out in s 9. (Approved assessment training must be approved by the Secretary of the Department of Health and Human Services [see s 114]).

In order to be eligible for voluntary assisted dying, a person must have “decision-making capacity” in relation to voluntary assisted dying: s 9(1)(c).

The term “decision-making capacity” is defined in s 4, and it requires a person to be able to understand information, retain it, and use it or weight it in order to reach a decision.  The person must also be able to communicate their decision to a medical practitioner.

The coordinating medical practitioner must be satisfied that the patient is acting voluntarily and without coercion, and that their request for assistance to die is enduring (s 20).

If they are assessed as eligible, the coordinating medical practitioner must report to the Voluntary Assisted Dying Review Board (established under s 92 – see s 21) and refer the patient for a consulting assessment (s 22).

Consulting assessment

The consulting medical practitioner who carries out the this assessment must have  completed “assessment training” (s 26) and must be a specialist or vocationally registered GP with at least 5 years’ experience and have “relevant expertise and experience in the disease, illness or medical condition expected to cause the [patient’s] death” (ss 23-24).

If the consulting medical practitioner concludes that all the eligibility criteria are met, they must notify the person and also notify the Board (s 30).

Formal written request

At that point, the patient may make a written declaration requesting access to voluntary assisted dying which meets the requirements set out in s 34.

This request must be signed by the patient in the presence of 2 witnesses and the coordinating medical practitioner.

Witnesses need to meet requirements set out in s 35 and must also sign a certificate dealing with matters set out in s 36.

Final request

The patient may then make a final request under s 37.  This final request must be at least 9 days after their first request (made under s 11), and at least one day after they were assessed by the consulting medical practitioner as eligible (s 38).  However, the requirement for at least 9 days of reflection following the first request may be shortened if the person’s death is imminent and they are likely to die within that 9 day period.

Following the final request, the patient must then appoint a contact person who, amongst other things, must return unused assisted dying drugs to pharmacists (ss 39-40).

The coordinating medical practitioner must then review all the documentation and certify that the request and assessment process complies with the Act.  They must give the completed final review form to the Board (s 41).

Voluntary assisted dying permits

This enables the coordinating medical practitioner to apply for a “voluntary assisted dying permit” for the patient (s 43).

There are 2 kinds of voluntary assisted dying permit.

The coordinating medical practitioner can apply for a “self-administration permit” under s 47 if the patient is physically capable of self-administering the drug or poison.  The drug in question must be specified in the permit.

Under s 45, a “self-administration permit” authorises the coordinating medical practitioner to prescribe and supply a quantity of drug for self-administration by the patient in sufficient quantity to cause death.  It also authorises possession of the drug by the permit holder, and possession by the contact person of unused drug – for the purposes of returning it to a pharmacist.

Alternatively, the coordinating medical practitioner can apply for a practitioner administration permit where the patient is physical incapable of self-administering or ingesting the poison or drug (s 48).

As you might expect, a practitioner administration permit authorises the coordinating medical practitioner to administer the drug in the presence of a witness only if the patient is physically incapable of doing so and the patient has decision-making capacity at the time the request for administration of the drug is made (s 46(c)).

This means that a patient cannot make an advance directive for assisted dying.

The decision to issue a permit is made by the “Secretary” ie the Head of the Department of Health and Human Services, doubtless under delegation (s 49).

Section 57 sets out the information that the coordinating medical practitioner must give the patient before prescribing a drug under a self-administration permit.  This includes information about how to self-administer the “voluntary assisted dying substance”, and the fact that the person is under no obligation to fill the prescription or to use it.  The drug itself must be stored in a locked box that satisfies prescribed specifications.

The Act also contains labelling and storage requirements, and requirements imposed on pharmacists.

Administration requests

Section 64 states that the patient may make an administration request to the coordinating medical practitioner, in the presence of a witness, to administer the drug specified in a practitioner administration permit.

The person making the request must be the subject of the permit, they must have decision-making capacity in relation to voluntary assisted dying, and they must understand that the drug is to be administered immediately after the request is made.

The coordinating medical practitioner will only have a practitioner administration permit if the person is physically incapable of self-administering the drug to themselves (s 46).

The drug can then be administered.

The witness and the coordinating medical practitioner must jointly fill out a form called the “coordinating medical practitioner administration form”, which must be sent to the Board (ss 65-66).

After the death

The death must be reported as voluntary assisted dying under the Births, Deaths and Marriages Registration Act 1966 (s 67).  The Coroner must also be routinely informed of such deaths (s 67(2)).

Section 80 protects a medical practitioner who acts in accordance with the Act from any kind of liability, including liability for unprofessional conduct or professional misconduct.

Part 8 of the Act includes a range of offences for people who take actions otherwise than in accordance with the Act.

Will doctors choose to participate in the process?

It remains to be seen whether Victorian medical practitioners regard the procedures established by the Act as so complex or cumbersome that they prefer to provide assistance informally, rather than triggering the Act’s processes and subjecting themselves to scrutiny.

I’d be surprised if there were not at least a few doctors who adopt this course of action.

The legislation is complex.  Doctors may also – again, for reasons of self-protection – confine themselves to traditional forms of palliative care.  Those who take a conservative view on the legalization of assisted dying may urge doctors to do this.

For example, if a coordinating medical practitioner administers a drug to a person who is the subject of a practitioner administration permit otherwise than as authorised by that permit, they are liable to life imprisonment (life or such other term as fixed by the Court) (s 83).

It is an offence to fail to give copies of forms to the Board (s 90) and for a contact person to fail to return the unused portion of a euthanatic drug to the pharmacist who dispensed it (s 89).

Using this new legislation is not for the faint-hearted.  Doctors who choose to do so will need to know what they are doing.

Are you interested in health law?  Sydney Law School offers a Master of Health Law that is open to lawyers, health professionals and other qualified applicants.  Click here and here for more information, or click here for information on the units of study on offer in 2018 and 2019.

Dr Rodney Syme and Nembutal

rodneysyme_11a_good_death1

A Good Death

In the mid-1970s, a Melbourne urologist, Rodney Syme, sat facing Len, a man whose invasive bladder cancer was causing incontinence and blood clots that blocked the flow of urine.

Len needed to urinate every fifteen minutes, and frequently wet himself.  He was in excruciating pain.  It is cases like this, Syme would later write, in his book, A Good Death, that have caused generations of surgeons to whisper “Please God, do not take me through my bladder” (Syme 2008, 36).

Pale as chalk, “Len looked me straight in the eye”, Syme recalls, and asked “Isn’t there anything else you can do for me?”

Unwilling to treat Len as a “medical pawn”, Syme responded that he could write a prescription for sleeping tablets that Len could self-administer.

Syme writes: “I will never forget the look of intense relief and simultaneous gratitude that suddenly illuminated Len’s pallid face as his wish was granted” (Syme 2008, 38).

Len’s demise was hardly a textbook case of physician-assisted dying, but it was a turning point for Syme.

“I realized at this point that I had commenced on a ‘life of crime’, and that if future patients like Len were to come to me for help, I would have no option, in all conscience, but to continue in this ‘life of crime’” (Syme 2008, 41).

Len died in the mid-1970s.  But ever since then, Rodney Syme has been quietly, and more recently, not-so-quietly, pushing into the grey zone that separates lawful, palliative care from (unlawful) assisted dying.

In March 1997, when the Commonwealth Parliament used its constitutional powers to make laws for the territories to overturn the Northern Territory’s Rights of the Terminally Ill Act 1995 (NT), Rodney Syme vowed publicly to continue providing quiet assistance to patients when needed.

 

Syme v Medical Board of Australia (2016)

In January 2016, the Medical Board of Australia received a mandatory notification under Victoria’s version of the Health Practitioner Regulation National Law.

The notifier was the GP of a man called Bernard Erica.  Mr Erica had tongue cancer and secondary metastases in his lungs, and was at that time receiving palliative care.  His death was expected within one month.

Mr Erica’s GP advised the Medical Board of Australia that Mr Erica had told him that Dr Syme was going to assist Erica to end his life.

What Dr Syme had done with Mr Erica, as with some of his other patients, was to assure Mr Erica that he would give him a drug called Nembutal (pentobartal), that he could use if he chose to.

Medical practitioners are required to notify reasonable suspicions of “notifiable conduct” committed by other registered health practitioners.

The concept of “notifiable conduct” includes placing the public at risk of harm because the practitioner has “practised the profession in a way that constitutes a significant departure from accepted professional standards” (ss 140-144).

Under delegation arrangements, the powers of the Medical Board of Australia to take immediate action in relation to the subject of a complaint are exercised by the Immediate Action Committee (IAC), which is empowered to act immediately if it believes that “the practitioner poses a serious risk to persons” (s 156).

In this case, the IAC investigated the allegations and imposed the following condition on Dr Syme’s right to practice:

“Dr Rodney Syme [MED0000944514] is not to engage in the provision of any form of medical care, or any professional conduct in his capacity as a medical practitioner that has the primary purpose of ending a person’s life”.

Dr Syme appealed.  In Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150, the Victorian Civil and Administrative Tribunal (VCAT) upheld Dr Syme’s application for review.

VCAT set aside the Medical Board’s condition on his practice on the basis that the Tribunal could not form a reasonable belief that “Dr Syme’s conduct places persons at serious risk or that it is necessary to take immediate action to protect public safety” (para 185).

One of the ironies of this decision was that Dr Syme relied successfully on the much-contested distinction between “foresight and intention”.

He successfully denied intending to hasten Mr Erica’s life, or the life of his other patients, despite sometimes giving them possession of a well-known “euthanatic drug” which could not lawfully be used in medical practice in Australia, and despite knowing that his patients’ suicide was – at least – a possible consequence of his action.

The conventional account of palliative care is careful to maintain the distinction between foresight and intention; that is, it acknowledges a conceptual, legal and moral distinction between intending to end a patient’s life, and taking actions with the foresight that death might be a highly likely consequence of those actions.

This distinction does good work in some areas of medicine.  For example, it permits a surgeon to carry out highly risky surgery, including surgery that will “probably fail”, but which may nevertheless represent a patient’s best hope.

The question the Tribunal faced was whether this distinction is appropriately drawn when a doctor delivers euthanatic drugs into the hand of the patient, clearing the way for the patient to commit suicide.  Can the doctor plausibly deny having any intention to assist the patient’s suicide if the patient goes ahead and takes the drug?

This question turned on whether Dr Syme could plausibly argue that his game plan, in giving his patients Nembutal, was to assist the patient to recover a sense of control about their dying process, thereby relieving psychological distress and re-casting the doctor’s actions as a form of palliative care.

In his evidence, Dr Syme admitted he had counselled approximately 1700 patients about end-of-life matters during his career, and had given Nembutal to approximately 10% of them (para 70).

In rare cases Dr Syme would give Nembutal to a patient on his first visit with them because they were at the end stage of a terminal disease and suffering greatly.

However, Dr Syme did not keep written records of the psychological condition of his patients, nor document their mental state after he gave them Nembutal (para 70).

 

Asserting intentions

In A Good Death, Dr Syme pointed to the frailty of doctors’ intentions, writing that:

A doctor’s intentions in end-of-life decisions may be complex, ambiguous, multifactorial and uncertain, and an inadequate basis for legal definition (Syme 2008, 25).

In this case, however, Dr Syme was clear about the purpose of his actions.

“I can say that categorically, that my intention is to give a sense of control and by so doing to ease their suffering” said Dr Syme (para 57).

Dr Syme agreed that doctors are not authorised to prescribe barbiturates like Nembutal, and that this drug cannot be legally obtained by a medical practitioner.

However, the Tribunal pointed out that the lawfulness of Dr Syme’s conduct in obtaining the drug was not in issue.  The Tribunal’s task was limited to determining whether Dr Syme was a danger to his patients (para 137).

In the end, the Tribunal accepted that Dr Syme’s intention in giving patients possession of Nembutal was to give them relief from psychological and existential suffering, and that this palliation occurs because patients feel an increased sense of control and certainty about how their life will end (paras. 129, 143).

The Tribunal also decided that, to the extent that the giving of Nembutal to patients gave them the opportunity to use the drug to end their lives, that consequence (even if foreseen) was “not intended by Dr Syme and can be seen as a secondary but unintended consequence”.

Referring to the principle of “double effect”, the Tribunal wrote that: “The fact that the treatment also has the effect of providing an opportunity for the patient to later ingest the Nembutal is not intended by Dr Syme and can be seen as a secondary but unintended consequence” (147, para (i)).

The Tribunal concluded by saying that it was satisfied that the “the holistic approach adopted by Dr Syme [was] entirely focused upon supporting the patient in life rather than pre-empting the patient’s death” (para 179).

As a result, the Tribunal disagreed that Dr Syme posed a serious risk to persons, or to Mr Erica, and set aside the condition the Medical Board of Australia had imposed on Dr Syme’s practice.

 

A new boundary for palliative care?

In the well-known case of R v Cox (1992) 12 BMLR 38), a doctor administered Potassium Chloride to a patient with the intention of inducing cardiac arrest and death.

KCl has no therapeutic properties, and so its administration supported the inference of an intention to kill.  Since the body had been cremated, Dr Cox was charged with attempted murder only.  He was convicted; his merciful motive was not considered relevant.

If Dr Cox had merely given possession of the KCL to his patient on the premise that it might relieve suffering by giving the patient a greater sense of control, leaving it up to the patient whether or not to ingest the drug, could he – and should he – have avoided liability on that basis?

That is an issue of criminal law that awaits determination in Australia.

However, unlike the practice of “terminal sedation” – which ensures that a patient dies while unconscious due to sedation, doctors who dispense non-licensed drugs to patients in the quantities that would be needed for a successful suicide are essentially acting outside the conventions of the specialty of palliative care.

Making oneself a test case is a risky business.  Dr Syme risks consequences that go well beyond a condition being placed on his right to practice medicine.

That said, from my knowledge of him, Dr Syme is a decent, compassionate doctor and if I were terminally ill I would consider myself fortunate to have him at my bedside.

Moral conservatives may feel this ruling gives Syme carte blanche to assist suicides, inappropriately asserting an innocent intention while giving patients lethal quantities of a non-therapeutic drug that doctors have no business distributing.

Patients like Mr Erica may beg to differ.  They are less interested in the coherence of medical law, and more interested in a good death.

Are you interested in studying health law?  Sydney Law School’s Master of Health Law and Graduate Diploma in Health Law are open to both lawyers and non-lawyers.  Units of study taught in 2017 include Death Law, taught by Professor Cameron Stewart on 20, 21 April & 11, 12 May 2017.  For information on Sydney Health Law, the Centre for Health Law at Sydney Law School, click here.