May 8, 2024
Introduction to Voluntary Assisted Dying
With the increasing trend for more personal responsibility and choice, the decisions regarding a person’s health are being put, both morally and medically, back into their own hands.
Health Practitioners are no longer solely responsible for health decisions, the patient has a much greater say in what happens to their bodies during their life, after appropriate input and advice from their health practitioner.
Unfortunately, increasing negative trends in a worrying world is a major concern. Mental health nowadays is just as important, if not more so, than physical health.
And with people leading longer lives, the prevalence of mental health issues such as dementia is becoming even more prominent.
For a small but important group of people, voluntary assisted dying (VAD) is becoming a choice they make to end their life as peacefully as they can at a time of their own choosing.
What is Voluntary Assisted Dying?
Voluntary assisted dying is an end of life process that enables eligible South Australians to access and self-administer, or in some circumstances have a medical practitioner administer, a medication that will cause their death, in accordance with the steps and process set out in the Voluntary Assisted Dying Act 2021 (the Act).
History
Voluntary euthanasia, whereby family members, friends or medical practitioners who have been involved with the death of terminally ill people who have requested help to end their own life, can result in prosecution of these third parties.
After lengthy discussions, the conscience vote on the private members bill passed both chambers of the South Australian Parliament on 24 June 2021 and the the Act came into effect on 31 January 2023.
The Act states that the laws of the State of South Australia will not be taken to be unlawful by a person ("the applicant") for those ending their life via voluntary assisted dying.
To ensure the safety of voluntary assisted dying and to exclude its use in unlawful euthanasia, the South Australian Parliament made the Act detailed and very specific in the legal and medical requirements to apply for access to VAD. There are 70 safeguards built into the VAD process.
The Minister of Health and Well Being has appointed a board to oversee voluntary assisted dying in South Australia in accordance with the principles outlined in the Act. The nine-member Review Board meets monthly and is responsible for the review of functions and powers exercised under the Act.
Consequently, the complexity of the legal requirements to apply for access to voluntary assisted dying means that compassionate and sensitive legal advice such as that we provide, is essential to assist both the applicant and their relatives and friends.
What is the process for Voluntary Assisted Dying?
There are a series of prescribed steps in the process to ensure any decision is not made in haste, and that the applicant can decide not to continue at any step in time.
The applicant must make a clear and unambiguous personal request to a registered medical practitioner for access to voluntary assisted dying.
Eligibility
An applicant is not eligible for access to voluntary assisted dying only because they are diagnosed with a mental illness or only because they have a disability.
Perhaps most significantly, for an applicant to apply for access to voluntary assisted dying, they must have a disease, illness or medical condition that is incurable, advanced, progressive and is expected to cause their death in less than 6 months.
The applicant’s condition must be such that it cannot be relieved in a manner that the applicant considers tolerable.
They must be acting freely and without coercion, and the request must be enduring.
They must be at least 18 years old, and an Australian Citizen or permanent resident, be ordinarily resident in South Australia and at the time of making a first request must have ordinarily resided in South Australia for at least 12 months.
The applicant must have the capacity of decision making to understand relevant information, retain that information to make the decision, use or weigh that information as part of the process of making the decision, and communicate their decision and their views and needs as to the decision in some way.
An applicant is presumed to have this decision-making capacity unless there is evidence to the contrary.
We can assist with this process of determining decision-making capacity.
Responsibility of Medical Practitioners
The Act clearly states that a registered health practitioner must not, while providing professional care services to their patient, initiate or suggest voluntary assisted dying.
However, the registered health practitioner can provide information to their patient at their patient’s request.
The coordinating medical practitioner must not commence the first assessment unless the practitioner has completed specified assessment training approved by the Chief Executive.
Both the coordinating medical practitioner and consulting medical practitioner must also have minimum experience requirements. They must not be family members of the applicant or have reasonable grounds to believe that they will be beneficiaries of the applicant’s will.
The applicants coordinating medical practitioner may apply to the Chief Executive for a self-administration permit if the applicant is physically able to self-administer and digest the proposed lethal substance specified in the permit for the purpose of causing the applicants death.
In cases where the applicant is physically incapable of self-administration or digesting the proposed lethal substance, but the applicant has decision making capacity, and the applicants request for access to voluntary assisted dying is enduring, the coordinating practitioner can apply for a practitioner administration permit.
A registered health practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to participate.
Responsibility of Service Facilities
Certain residential health service facilities can also conscientiously object to any part of the voluntary assisted dying process being undertaken at their facility. Such terms may be included in the terms and conditions of acceptance of any patient into the health service facility.
However, the conscientiously objecting facility must put arrangements in place to transfer the patient to another health service facility in which a registered health provider is likely to be able to participate in a voluntary assisted dying process for the then applicant.
The facilities response may also depend on whether the applicant is a permanent resident in the facility or is there just temporarily. A private home, or a hospital or a psychiatric facility or a facility that primarily provides care to people who are not frail and aged, is not considered a residential facility.
Legal Assistance for a Voluntary Assisted Dying Application
Of the 173 permits issued for voluntary assisted dying from 31 January – 31 December 2023, 147 were for self-administration, 26 were for practitioner administration.
The number of permits issued per quarter rose from 28 (31 January-30 April) to 57 (1 October-31 December) 2023.
Of the applicants who died who were the subject of a VAD permit, 87 had cancer, 21 had a neurogenerative disease and 13 had other conditions such as respiratory, heart or kidney failure.
Twenty-three died without taking the VAD substance.
There is obviously a need, and a growing one, for access to voluntary assisted dying in the South Australian community.
The legal challenges to access voluntary assisted dying are complex, designed to ensure that it is not taken lightly and is considered in great depth by the applicant and close friends and family.
It must be done accurately but with relative speed depending on the health of the applicant. The average calendar days between first request and permit decision was 26.44 days in 2023. Ninety-nine percent of permits were issued within the 3 business days prescribed period.
We understand the significant emotional and moral dilemma involved in an application to access voluntary assisted dying and can provide the appropriate support, in a compassionate and caring way, for applicants to negotiate the necessary legal challenges as smoothly and as quickly as possible.
Call our offices on (08) 8212 2955 to arrange an appointment with a solicitor.