Voluntary Assisted Dying Bill 2021
When Parliament resumes the Voluntary Assisted Dying Bill 2021 will be introduced for debate (and voted on).
It has been updated from its previous version in 2017. I supported that version of the Bill.
I am interested in seeking your views on this important piece of legislation.
Please fill out this very short, three question survey to help me understand your views.
You can also write in support or opposition to the Bill by emailing my Office.
If you would like to read the Draft Bill, it is available by clicking here.
FAQ's on the proposed Bill is below:
1) Who is eligible to access voluntary assisted dying under the New South Wales bill?
Only adults diagnosed with a terminal illness that will cause death within six months, or 12 months for neurodegenerative conditions, and who are experiencing suffering as a result of the condition that cannot be tolerably relieved will be able to access voluntary assisted dying. There are strict provisions to ensure the person has the capacity to make and understand the consequences of a voluntary assisted dying decision and that they are acting voluntarily and without pressure or duress.
2) What protections exist to stop a vulnerable person from being pressured into seeking voluntary assisted dying?
Multiple overseas and Australian inquiries have found that there is no evidence of pressure on people who have a terminal illness to end their lives sooner where voluntary assisted dying laws operate. Notwithstanding, the bill provides a number of robust safeguards.
Two experienced doctors will need to independently assess a person seeking assistance and independently come to the conclusion that they are acting voluntarily and without any form of pressure or duress. The bill gives a very comprehensive definition of pressure and duress covering coercion, intimidation, threats and undue influence and arguably provides the strongest definition in all Australian voluntary assisted dying laws. All doctors will be trained in recognising the signs of pressure or duress and if they are unsure whether a patient is acting voluntarily, or whether pressure or duress could be a factor, they must refer the patient to someone who has the skills and training to make a determination. This could be a psychiatrist, psychologist, social worker or the police for example, determined on a case-by-case basis depending on the circumstances.
The bill creates new offences for pressuring someone into making an application for assisted dying with strong penalties including seven years’ imprisonment for inducing another person to request access to voluntary assisted dying. If there is concern that someone is not acting voluntarily or that pressure or duress is playing a role, an appeal can be made to the Supreme Court, during which there is a pause in the application process.
Voluntary assisted dying will only be available to someone who is at the end stage of a terminal illness, whose suffering is beyond any meaningful medical help.
3) What about protections for people who are terminally ill who might feel that they are a burden to their family or carers?
The bill is designed to give people control over the timing of their death at a time when their death is imminent and they feel they have suffered enough.
Safeguards exist to ensure the person cannot make a decision based on fleeting feelings. The eligibility criteria include a need for the person’s request to be enduring which will be assessed by two independent medical practitioners. The process itself is designed to give the person time to think about their decision. The person must repeat the request on three separate occasions, including in a written declaration signed by two witnesses independent of the voluntary assisted dying doctors, and there is a mandatory five-day cooling off period between the first request and the final request.
4) What training will health professionals receive?
Before a medical or health practitioner can accept either a first request for assistance, a referral for a consulting assessment, or the role of the administering practitioner, they must have undergone mandatory training, along with having specific statutory qualifications and experience.
The training will cover practitioners’ legal obligations, the strict eligibility criteria and how to assess whether someone meets those criteria. The bill expressly requires training to cover how to identify signs of pressure or duress. There is scope for the Health Secretary to approve mandatory training for other health practitioners administering voluntary assisted dying services.
A doctor will only be able to act as a coordinating or consulting practitioner if they are a specialist with at least one year’s experience as a specialist, or are a general practitioner (GP) with at least 10 years’ experience as a GP, consistent with Western Australia.
5) Will health professionals be able to conscientiously object?
Voluntary assisted dying is a voluntary process for all participants at all stages. There is no obligation on health practitioners to provide assistance and the bill includes express provisions to confirm that all health practitioners are able to refuse to provide assistance due to a conscientious objection or any other reason. They can refuse to participate in any part of the process including in the request and assessment process; prescribing, supplying or administering the substance; or being present at the administration of the substance.
6) What provisions are there for telehealth?
The bill provides for telehealth but this is limited to circumstances that do not conflict with Commonwealth laws, which currently prohibit the use of a carriage service, including telephone and internet, to counsel, promote or provide instruction on suicide. While the bill specifically states that voluntary assisted dying is not suicide, it can only legislate within New South Wales and it is unclear whether the federal courts and authorities will interpret voluntary assisted dying as suicide.
Determining whether a person has decision-making capacity with regard to voluntary assisted dying through telehealth will be limited given the need to ask questions and specifically refer to the outcomes of a voluntary assisted dying decision.
7) How is decision-making capacity determined?
To access assistance, the bill requires a person to have decision-making capacity in relation to voluntary assisted dying. People who lack decision-making capacity, such as people suffering from dementia, or who lose decision-making capacity during the process are not eligible for voluntary assisted dying.
This means the person must understand and remember the information, advice and matters involved in a voluntary assisted dying decision and its effect, and weigh up the factors to make a decision. They will also need to be able to communicate that decision in some way. Essentially the person needs to understand the consequences of making a voluntary assisted dying decision.
People exercise decision-making capacity on various matters every day, from what to eat at breakfast to commencing life changing treatment. If a doctor suspects that there are factors that could interfere with a person’s ability to make a decision on voluntary assisted dying, such as because the person is depressed, or is showing symptoms of dementia, they must refer the person to someone who has the skills and experience to assess the person and make a determination. The relevant professional will be different depending on specific circumstances and could for example be a clinical psychologist, a neurologist or a geriatrician.
8) Will voluntary assisted dying compete with palliative care?
Palliative care and voluntary assisted dying are two distinct processes. Most people access palliative care before they seek voluntary assisted dying, aiming to maximise their quality of life and reduce pain and suffering. Voluntary assisted dying is available when palliative care and treatment can no longer relieve suffering in a way that is tolerable to the person.
NSW has one of the best palliative care systems in the world but even the best palliative care cannot help everyone or alleviate all suffering. Palliative Care Australia estimates that four percent of patients are beyond its help and there is evidence that palliative care cannot effectively control 10 to 20 percent of end-of-life symptoms.
9) If people can reapply after being assessed as ineligible, won’t they just doctor-shop?
The bill allows a person who has been assessed as ineligible to reapply for assistance because their circumstances may have changed. It is not uncommon for someone to cease medication that previously interfered with their decision-making capacity or for their prognosis to deteriorate rapidly such as after they develop an infection. It would be unfair to exclude someone from seeking assistance on the basis that they have previously been assessed as ineligible.
The bill includes safeguards against genuine doctor shopping. Two doctors must independently assess a person as eligible for each application request the person makes. The extensive reporting regime in which doctors must submit forms to the Voluntary Assisted Dying Board at every step of the process, ensures that there is oversight when a person makes multiple applications.
A wide range of organisations have been engaged in the drafting of the Bill. These organisations include, but are not limited to:
- the NSW Nurses and Midwives’ Association,
- the Paramedics Association (NSW),
- the Pharmaceutical Society of Australia,
- The Law Society of New South Wales,
- the Health Services Union,
- the NSW Ombudsman, and aged care providers.
NSW is the only state to not have passed voluntary assisted dying laws.