VOLUNTARY ASSISTED DYING LEGISLATION IN AUSTRALIA AND OVERSEAS

The Western Australian Voluntary Assisted Dying Bill passed into law on 10 December 2019. The Act came into effect on 1 July 2021. You can view the Voluntary Assisted Dying Act 2019 here.

GENERAL BACKGROUND ON VOLUNTARY ASSISTED DYING LEGISLATION 

Voluntary assisted dying was briefly permitted in the Northern Territory (1996) before the law was repealed by the Federal Government in 1997. Over the past two decades, since the Northern Territory law was overturned, there have been over thirty attempts to pass another assisted dying law. All of those attempts failed up until November 2017, when the Victorian Parliament made history by becoming the first Australian state to pass the Voluntary Assisted Dying Bill 2017. Since then Western Australia (2019), Tasmania (2021), South Australia (2021) and Queensland (2021) have also passed VAD legislation. New South Wales is the last state to consider these laws and their VAD Bill passed in the Lower House in November 2021 and is currently being debated in the Upper House (2022).

In 2022 voluntary assisted dying, or voluntary euthanasia, has been made legal in 26 jurisdictions around the world. It is legal in Switzerland (Criminal Code 1942), The Netherlands (2002), Belgium (2002), Luxembourg (2009), Germany (2015), Colombia (2015 Court Decision), Canada (2016), Australia (Victoria 2017, Western Australia 2019, Tasmania 2021, South Australia 2021, Queensland 2021), New Zealand (2020), Spain (2021), Austria (2021) and in 11 jurisdictions in the US including Oregon (1997), Washington (2009), Montana (2010 Court Decision), Vermont (2013), California (2016), Colorado (2016), Washington DC (2016), Hawaii (2018), New Jersey (2019), Maine (2019) and New Mexico (2021).

ELIGIBILITY REQUIREMENTS, METHODS OF ADMINISTRATION AND LEGAL FRAMEWORKS

There are differences between the various laws in regard to the eligibility criteria, the method of administration of the lethal medication and the legal framework, or process.

The American laws (on which the Australian laws are based) are considered the most restrictive, because the individual has to be suffering from a terminal illness, with less than 6 months to live, whereas the European laws do not restrict access based on a terminal illness. In Europe, the eligibility and safeguards are based on a model requiring ‘due care’ on the part of the doctor assisting a patient to die and the patient must be experiencing ‘unbearable and irremediable suffering’ to qualify.

The American laws require self-administration only, whereas under the European, Canadian and Australian models, both self-administration and practitioner-administration are permitted.

The laws passed in Australia to date generally follow the American model, but the prognosis of time before death does vary. In Victoria, Western Australia, Tasmania and South Australia it is 6 months except in the case of neurodegenerative conditions, for which it is 12months. In Queensland the VAD law requires a prognosis of less than 12 months. A table (prepared by Go Gentle Australia) comparing the details of the Australian laws may be found here - A Comparative Table of Australian VAD laws.

It would take up too much room to provide a detailed comparison of the legal frameworks, safeguards and procedures involved in the various assisted dying models around the world. However, according to the Victorian Committee, which travelled to many of these jurisdictions, although the models differ, ‘what they all have in common is robust regulatory frameworks that focus on transparency, patient-centred care and choice.’ Both the Victorian Committee and the Western Australia Joint Select Committee found no evidence of so-called institutional corrosion or the often cited ‘slippery slope’. 

Now that the Western Australian debate is over you can view the Voluntary Assisted Dying Act 2019 here.

The WA VAD Act includes the following eligibility criteria:

(a)        the person has reached 18 years of age;

(b)        the person —

        (i)     is an Australian citizen or permanent resident; and

        (ii)     at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months;

(c)     the person is diagnosed with at least 1 disease, illness or medical condition that —

        (i)     is advanced, progressive and will cause death; and

        (ii)     will, on the balance of probabilities, cause death within a period of 6 months or, in the case of a disease, illness or medical condition that is neurodegenerative, within a period of 12 months; and

        (iii)     is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable;

(d)     the person has decision-making capacity in relation to voluntary assisted dying;

(e)     the person is acting voluntarily and without coercion;

(f)     the person’s request for access to voluntary assisted dying is enduring.

More information about the above eligibility requirements and the VAD process can be found in ‘Resources’ under the tab ‘Workshops’.