June 19, 2019

Australia gets 2nd Euthanasia Law 24 Years After 1st

A quarter of a Century after the Northern Territory’s ground-breaking ROTI – Rights of the Terminally Ill Act, and the State of Victoria has finally enacted its own voluntary euthanasia law.

Touted as the world’s most conservative law for the terminally ill, the new Voluntary Assisted Dying Act of Victoria is expected to help around 150 people a year.

However to qualify for the world’s toughest law – a max security law with 68 safeguards, you need to be almost dead.

For example, Mt Martha former firefighter Troy Thornton who was slowly becoming paralysed with MSA (multiple system atrophy) was deemed ineligible.

Troy’s problem is that he would die with MSA rather than of it.

Troy’s only option was Switzerland.

The laws of all countries should do better.

With the incoming law generating all manner of questions, Exit has undertaken the first known analysis of the much-lauded ‘safeguards’ of the VAD Act. In doing so we have identified well in excess of 100 ‘safeguards’.

If you think the VAD might be something that would be useful for you at some point in the future, below are the safeguards that have been put in place to help protect you.

It is a matter of conjecture if the safeguards are help or hinder.

Exit is on the side of the latter.

Person Eligibility – Basic Requirements

• Person has decision-making capacity
•  Person can understand the information relevant to the decision
• Person can retain that information
• Person must be able to use or weigh that information as part of the process of making the decision
• Person can communicate the decision

Approval Process

A person may access voluntary assisted dying if—

• the person has made a first request
• the person has been assessed as eligible by co-ordinating medical practitioner for the person
• by a consulting medical practitioner for the person
• the person has made a written declaration;
• the person has made a final request to the co-ordinating medical practitioner
• the person has appointed a contact person
• the co-ordinating medical practitioner has certified in a final review form
• the person is the subject of a voluntary assisted dying permit

Rules for Doctors  – General

• A registered health practitioner may not initiate discussion with that person that is in substance about voluntary assisted dying
• A registered health practitioner must not suggest voluntary assisted dying to that person

Eligibility

• Person must be aged 18 years or more
• Person must be an Australian citizen or permanent resident
• Person must ordinarily resident in Victoria
• At the time of making a first request, have been ordinarily resident in Victoria for at least 12 months
• Person must be diagnosed with an incurable disease, illness or medical condition
• Person must be diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death
• Person must be diagnosed with a disease, illness or medical condition that is expected to cause death within weeks or months, not exceeding 6 months
• Person must be diagnosed with a disease, illness or medical condition that is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable
• Person is not eligible for access to VAD only because the person is diagnosed with a mental illness
• Person is not eligible for access to voluntary assisted dying only because the person has a disability
• Person must be diagnosed with a neurodegenerative disease, illness or medical condition  that is expected to cause death within weeks or months, not exceeding 12 months

Doctor Regulations

• Doctor must hold a fellowship with a specialist medical college
• Doctor must be a vocationally registered general practitioner
• Doctor must have practised as a registered medical practitioner for at least 5 years after completing a fellowship
• Doctor must have relevant expertise and experience in the disease, illness or medical condition expected to cause the death of the person

Person Requirements

• Person may make a first request
• Request must be clear and unambiguous
• Request made personally
• Person may decide at any time not to continue
• Process ends if a person decides not to continue
• Within 7 days after receiving a first request from a person, the registered medical practitioner – accepts the first reques
• Within 7 days after receiving a first request from a person, the registered medical practitioner – refuses the first request
• If first request accepted, practitioner must record his/ her acceptance in the person’s medical record
• If first request accepted, practitioner must record patient’s request in the person’s medical record
• The co-ordinating medical practitioner must not commence the first assessment unless the practitioner has completed approved assessment training
• If co-ordinating medical practitioner is unable to determine whether the person has decision-making capacity they must refer the person to a registered health practitioner who has appropriate skills and training

Specialists

• If the co-ordinating medical practitioner is unable to determine whether the person’s disease, illness or medical condition, co-ordinating medical practitioner must refer the person to a specialist registered medical practitioner who has appropriate skills and training in that disease
• Specialist must determine status
• Specialist must provide clinical report

Neurological Specialists

• If the co-ordinating medical practitioner is able to determine that the person has a disease, illness or medical condition that is neurodegenerative, and will cause death within 12 months, co-ordinating medical practitioner must refer the person to a specialist registered medical practitioner who has appropriate skills and training in that particular disease, illness or medical condition
• Specialist must determine status
• Specialist must provide a clinical report
• Coordinator practitioner must adopt specialist’s report

Coordinating Practitioner

• If coordinating practitioner assesses person as eligible they must inform patient of: person’s diagnosis and prognosis
• If coordinating practitioner assesses person as eligible they must inform person of: treatment options and likely outcomes
• If coordinating practitioner assesses person as eligible they must inform patient of: palliative care option and likely outcomes
• If coordinating practitioner assesses person as eligible they must inform patient of: potential risks of taking a poison or  controlled substance or a drug of dependence
• If coordinating practitioner assesses person as eligible they must inform patient of: expected outcome of taking a poison or controlled substance or a drug of dependence
• If coordinating practitioner assesses person as eligible they must with patient’s consent, inform the family of all relevant clinical guidelines
• If coordinating practitioner assesses person as eligible they must with patient’s consent, inform the family of plan in respect of the self-administration of a voluntary assisted dying substance
• Coordinating practitioner must assess person for meets all the eligibility criteria
• Coordinating practitioner must assess person understands the information
• Coordinating practitioner must assess person acting voluntarily and without coercion
• Coordinating practitioner must assess person’s request is enduring
• If deemed eligible by coordinating practitioner, he / she must refer the person to another registered medical practitioner for a consulting assessment
• Consulting medical practitioner must not commence a consulting assessment unless the practitioner has completed approved assessment training

Written Declarations

• Declaration must be witnessed by an eligible person over 18 (not a beneficiary of the will/ owner of the hospice where person is being treated or providing health care)

Final request

• Can only make final request if made written declaration
• Final request must be to coordinating practitioner by person personally
• Final request must be made at least 9 days after 1st request
• Final request must be made at least one day after deemed eligible by practitioners

Contact Person

• Person must appoint a contact person
• Must use the right form
• Person must appoint a contact person in presence of a witness
• Witness must sign form

Final Review

• Coordinating practitioner must undertake a final review
• Must review all forms
• Complete a final review form
• Certify the request and assessment process has been completed as required by this Act
• Co-ordinating medical practitioner must give the VAD Review Board a copy of the completed final review form, and copies of all other forms within 7 days after completing the final review form
• Coordinating practitioner must certify in final review form that request and assessment process has been completed as required by this Act
• Coordinating practitioner can then apply for VAD permit

Self-administration permit

• A self-administration permit – enables coordinating practitioner to prescribe and supply the voluntary assisted dying substance that the person can self-administer or obtain, possess, store, use
• Coordinating practitioner must be satisfied person is physically incapable of the self-administration or digestion
• Coordinating practitioner must be satisfied person has decision-making capacity
• Coordinating practitioner must be satisfied person’s request is enduring

Practitioner administration permit

• A practitioner administration permit – allows coordinating practitioner to prescribe and supply to the person a sufficient dose
• possess, use, and administer in the presence of a witness to the person if person is physically incapable of the self-administration or digestion
•  A practitioner administration permit must be on the correct form
• A practitioner administration permit must identify the person
• A practitioner administration permit be accompanied by final review form
• A practitioner administration permit be accompanied by all other forms
• A practitioner administration permit be accompanied by statement of eligibility
• A practitioner administration permit specify the poison or controlled substance or the drug of dependence
• A practitioner administration permit specify the contact person in charge of returning unused portions to the chemist
• Person must have made administration request personally
• Person must have made administration request in front of witness
• Person must have decision making capacity
• Person’s request for VAD is enduring
• Person must understand that substance is to be administered immediately after the request

Requirements of Pharmacist

• Pharmacist must destroy returned portion as soon as practicable
• Pharmacist must record and notify VAD Review Board of disposal within 7 days
• Harsh penalties for misuse, trafficking etc of drug offences

Role of Secretary (Head of the Department of Health and Human Services)

• VAD Permits are determined by Secretary
• Secretary may refuse if not satisfied with request and assessment process
• VAD permit must be on prescribed form

Storage of VAD substance

• VAD substance must be stored in a locked box
• Package/ container must have warning label
• Package/ container label must state the dangers of self-administering substance
• Package/ container label must state that the substance must be stored in a locked box
• Package/ container label must state that any unused or substance must be returned to pharmacist at the dispensing pharmacy

Harsh Criminal Penalties for Non Compliance

• Penalty of life imprisonment if another person administers what is provided under a self-administration permit
• Penalty of 5 years imprisonment if another person induces a person to request VAD
• Penalty of 5 years imprisonment if another person induces a person to self-administer substance
• Penalty of 5 years imprisonment if any forms are falsified:
  • a first assessment report form
  • a consulting assessment report form
  • a written declaration
  • a contact person appointment form
  • a final review form
  • a VAD substance dispensing form
  • a VAD substance disposal form
  • a co-ordinating medical practitioner administration form
• Penalty of 12 months imprisonment if contact person fails to return unused drugs to pharmacy within 15 days after death
• 60 penalty points for failure to provide Board with paperwork
• Criminal liability for officers of body corporate who fail in due diligence
• VAD Review Board – with wide-ranging powers of oversight and compliance