WHAT IS VOLUNTARY ASSISTED DYING?
Voluntary assisted dying (VAD) is a quick and peaceful death which results either -
- from a patient taking, or administering to themselves, a fatal dose of a lethal medication. This is commonly known as self-administration; or
- from a fatal dose of lethal medication being administered to them by a doctor, usually by injection. This is commonly known as medical aid in dying or voluntary euthanasia.
In both cases VAD is only available to a person who satisfies the statutory requirements applicable in the jurisdiction in which the VAD takes place.
Currently, VAD laws have been passed in Australia only in the states of Victoria and Western Australia. The Victorian VAD law came into effect on 19 June 2019. The WA Voluntary Assisted Dying Act 2019 (the WA Act) received the Royal Assent on 19 December 2019 and will come into effect in or about June 2021.
The Victorian Voluntary Assisted Dying Act 2017 and the WA Act are both modelled on the Oregon Death with Dignity Act 1997, not on the broader European models.
WHY IS THE TERM ‘ASSISTED SUICIDE’ NOT APPROPRIATE?
In Western Australia, VAD is available only to people who are already dying, and who are suffering from "at least 1 disease, illness or medical condition … that is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable”. 1.
These people are not suicidal. They are making a rational and fully informed decision to die a peaceful death in the manner and at the time of their choosing. The WA Act provides that VAD is not suicide, and suicide is not recorded on the death certificate as the cause of death.
HOW MANY AUSTRALIANS SUPPORT ASSISTED DYING?
Successive polls have shown support for VAD of close to or over 80%:
- November 2017 – 88% in WA (Roy Morgan) 2.
- November 2018 – 86% (The West Australian)
- December 2018 – 84% of COTA members (Newgate Research)
- May 2019 – 89% (ABC Vote Compass)
- July 2019 – 74% overall including 68% of Liberal voters (small poll conducted by MediaReach for DWDWA)
- August 2019 – 88% (The West Australian)
SUPPORT FROM CHRISTIANS
IS VOLUNTARY ASSISTED DYING SUPPORTED BY PRACTISING CHRISTIANS?
Many Christians believe that voluntary assisted dying is consistent with Christian values and with Jesus’s message of love and compassion, especially for those who are suffering. Today the overwhelming majority of Australian Christians support choice for VAD. A number of studies have confirmed that whilst support for VAD is strongest amongst those who say they have no religion, the vast majority of religious Australians are also supporters.
For example, the 2016 Australian Election Study (AES), conducted by scholars at the Australian National University, found that the statement “Terminally ill people should be able to legally end their own lives with medical assistance” was supported by 74.3% of Catholics, 79.4% of Anglicans, 77.8% of members of the Uniting Church and 90.6% of those with no religion. 3.
It is evident that the Catholic Church and members of the clergy who publicly oppose voluntary assisted dying are not representing the view of their ‘flock’.
The Australian organisation, Christians Supporting Choice for Voluntary Assisted Dying, has an excellent website which sets out the arguments and closely examines Christian doctrine in relation to the question of voluntary assisted dying. 4.
SUPPORT FROM NURSES
HOW MANY NURSES SUPPORT VOLUNTARY ASSISTED DYING?
A key voice in the WA campaign for VAD was the nursing profession. Support from the WA chapter of the Australian Nurses Federation was close to 90%, as illustrated by two full page advertisements in the West Australian newspaper.
SUPPORT FROM DOCTORS
ARE THERE DOCTORS WHO SUPPORT VOLUNTARY ASSISTED DYING?
In WA there was support and opposition from doctors. A number of high profile doctors in WA were outspoken ambassadors for the introduction of voluntary assisted dying in the state, including Professor Fiona Stanley. In October 150 doctors from WA signed an open letter to members of parliament in support of VAD.
Although the current hierarchy of the WA Branch of the Australian Medical Association (AMA) strongly and publicly opposed assisted dying law reform, the membership of the AMA is split. Ultimately the AMA worked constructively with the Labor Government in discussing possible amendments, and finally reached an agreement to support the Bill.
The national organisation Doctors for Assisted Dying Choice has always strongly supported VAD and other medical organisations came out in support during the campaign in 2019, including the WA Primary Health Alliance and the Royal Australian College of GPs.
THE LAWS OVERSEAS
WHICH OTHER COUNTRIES HAVE LEGALISED VOLUNTARY ASSISTED DYING OR VOLUNTARY EUTHANASIA?
There is an increasing number of international jurisdictions that provide access to voluntary assisted dying for those people who meet strict eligibility criteria within robust legal frameworks. The position as at June 2019 is shown below.
HOW DO THE LAWS DIFFER AROUND THE WORLD?
There are differences among the various laws relating to the legal framework, eligibility criteria, method of administration of the lethal medication and 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 require the person to be suffering from 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 permit self-administration only, whereas under the European and Canadian models, both self-administration and voluntary euthanasia are permitted.
Space on this website does not allow for a detailed comparison of the legal frameworks, safeguards and procedures involved in the various assisted dying models around the world. However, although the models differ, they all provide regulatory frameworks with strict eligibility criteria, numerous safeguards and strong reporting requirements. There is no evidence internationally of institutional corrosion or the often cited ‘slippery slope’. 5.
CAN PEOPLE WITH MENTAL ILLNESS OR A DISABILITY QUALIFY UNDER THE OVERSEAS LAWS?
Under the American laws, (on which Australian Bills are based), eligibility criteria are based on the diagnosis of a terminal illness, not on a disability, so having a disability alone does not meet the eligibility criteria. However, if someone with a disability meets the eligibility criteria for instance because they have cancer, they would not be denied access to voluntary assisted dying so long as they satisfied all of the eligibility criteria on the basis of their cancer. The same applies to mental illness. Although a person with mental illness alone would not meet the eligibility criteria for voluntary assisted dying, they would not be refused access if they met all of the eligibility criteria unless their decision-making capacity in relation to voluntary assisted dying was impaired.
The eligibility criteria in the European model allow someone with ‘unbearable and irremediable suffering’ to request an assisted death. This means it is possible for someone with a mental illness, or a severe disability, to qualify if they have decision-making capacity and all the safeguards are met, including that the physician is satisfied that the patient’s suffering is unbearable, with no prospect of improvement. Although it is possible under the European laws, the number of people qualifying with a mental illness, or disability, is quite small. The vast majority of people who access assisted dying in Europe do so for the same reason as in America and Canada, namely that they are dying of terminal, physical illnesses such as cancer, or MND.
CAN CHILDREN REQUEST ASSISTED DYING IN JURISDICTIONS WHERE IT IS LEGAL?
Under the American and Canadian laws, only competent adults aged 18 years or over can qualify, if they meet all other eligibility criteria. In Europe, the laws do allow access for some minors, however, the safeguards are stricter and only a very small number of children have accessed their assisted dying laws. In the Netherlands between 2002 and 2015 only 7 children have had an assisted death. In Belgium, it was two years after the law was amended in 2014, before the first minor accessed an assisted death. He was 17-year-old and he died in mid 2016. 6. In Belgium, for a minor to undergo voluntary euthanasia, they must be in a ‘terminal medical situation with constant and unbearable physical pain which cannot be assuaged and that will cause death in the short term.' 6.
CAN PALLIATIVE CARE RELIEVE THE PAIN AND SUFFERING OF DYING AUSTRALIANS?
Australia has one of the best palliative care systems in the world and it has improved significantly over the past 20 years. However palliative care is unable to relieve all pain and suffering, including the complex mixture of physical, emotional and psychological symptoms.
WHAT PERCENTAGE OF DYING PATIENTS CAN’T HAVE THEIR SUFFERING ALLEVIATED?
Based on data collected by approximately 100 palliative care services across Australia every year, we know that a small yet significant percentage of dying patients cannot have their symptoms controlled, even with the best efforts of palliative care.
The Australian ‘Palliative Care Outcomes Collaboration Report 2016’ includes numerous tables documenting relevant data. Table 1 - ‘Benchmark Summary’ shows that a realistic goal for ‘moderate to severe pain, becoming absent or mild’ was only 60% and yet this benchmark was not achieved. 7. The benchmark for ‘moderate to severe breathing problems, becoming absent or mild’ was also 60%, yet this outcome was only achieved for 46.6% of patients in inpatient services and 35.8% of patients using community palliative care services. 7. Even if palliative care services reached their current benchmarks, there would still be a large number of patients whose pain or suffering was unable to be alleviated.
Table 31 from the same report shows that the percentage of patients experiencing severe pain can be as high as 10.3% in the unstable phase. Even for patients in the terminal phase of their terminal illness (usually the last two days of life), 3.6% had severe pain, 3% had severe psychological distress and 6.5% had other severe physical symptoms. 7.
It is important to note that VAD and palliative care are not at odds with each other. In a study carried out in 2018 by Palliative Care Australia it is stated that “An assessment of the palliative care sectors following the introduction of assisted dying for each of the in-scope jurisdictions provided no evidence to suggest that the palliative care sectors were adversely impacted by the introduction of the legislation. If anything, in jurisdictions where assisted dying is available, the palliative care sector has further advanced.” 8.
Pursuant to a recommendation of the Joint Select Committee Inquiry into end of life choices, the state government significantly increased the resourcing and funding of palliative care, especially for the regions.
For the vast majority of terminally ill patients, palliative care will be enough to enable them to have a peaceful death. But for those for whom this is not the case, VAD should be a lawful end of life option.
ISN’T TERMINAL SEDATION AN OPTION WHEN PAIN OR SUFFERING CANNOT BE RELIEVED?
Terminal or continuous palliative sedation is a last resort option, if a patient is experiencing intolerable and unrelievable suffering in the process of dying. It is considered to be lawful because the sedation is administered for the primary purpose of alleviating the suffering, even though death will inevitably result as a “side-effect”. This medical intervention is in fact euthanasia, although not acknowledged as such. It is not voluntary assisted dying because the doctor makes the decision, sometimes but not always in consultation with the patient’s family, and takes the action required without, in the vast majority of cases, the express consent of the patient at the time.
Doctors take differing approaches to continuous palliative sedation, including how deeply and quickly sedation should be administered. These approaches may be based on an individual doctor’s personal belief about the morality of assisted dying. This means that not all patients will receive sedation to a level where their pain or suffering is alleviated.
Moreover, terminal sedation doesn’t always guarantee a peaceful death. As Australia’s most senior palliative care physician, Professor Ian Maddocks, explains:
ARE DOCTORS CURRENTLY ASSISTING THEIR PATIENTS TO DIE?
At the end of 2019, the actual practice of assisted dying was lawful only in the state of Victoria. Although VAD legislation in WA had been passed by Parliament, it is subject to an 18 month implementation phase before becoming operative.
It is difficult to quantify accurately the extent to which assisted dying is already taking place in Australia. Although it is unlawful in most parts of Australia research over many years has shown that a number of medical professionals are assisting patients to die, but usually covertly, for fear of prosecution. Although there are some doctors who have openly provided lethal medication to dying patients, very few are willing to admit to it publicly.
IF ASSISTED DYING IS ALREADY HAPPENING, WHY CAN’T WE LEAVE THINGS AS THEY ARE?
Without legislation that sets out clear eligibility criteria and numerous process and reporting safeguards, including against duress and coercion, the prevailing practice of end of life care is uncertain and inconsistent. It is a lottery for the person who is dying because the individual conscience of the doctor may determine when, if at all, terminal sedation should be administered to bring a person's suffering to an end, and uncertain for medical practitioners practising within a system with no clear guidelines.
WILL AN ASSISTED DYING LAW CHANGE THE DOCTOR/PATIENT RELATIONSHIP?
An assisted dying law is likely to change the doctor/patient relationship for the better. According to a recent report from California, one year after its assisted dying law was introduced, ‘physicians across the state say the conversations that health workers are having with patients are leading to patients’ fears and needs around dying being addressed better than ever before. They say the law has improved medical care for sick patients, even those who don’t take advantage of it.’ 9.
In Australia existing laws foster the paternalistic “doctor knows best” culture in which doctors decide unilaterally how much, or how little, or how quickly, a dying person should have their suffering relieved. Assisted dying legislation would allow an open conversation between doctor and patient while leaving the ultimate decision for a person who qualifies for VAD under the law to choose the time and manner of their death. Having this control has been shown of itself to have a palliative effect for the patient.
WHAT LEGAL OPTIONS DOES A DYING PATIENT HAVE UNDER THE CURRENT LAW?
Under the current law in Australia, a person dying who is experiencing unbearable and unrelievable suffering can lawfully end their lives, or have it ended for them, in one of these ways:
- They can commit suicide. In WA the State Coroner’s report for the period from 1 January 2012 – 5 November 2017 found that 10% of suicides are carried out by people with a terminal or debilitating chronic illness. 10. This is a lonely, desperate and often violent option that frequently leaves those who find the body (usually the police or a family member) and loved ones left behind with unresolved and long-lasting trauma.
- They can end their own life by refusing all medical treatment, food and water, and basically starve and dehydrate to death. This is usually a long and psychologically painful process for patients and their families.
- The third option is terminal palliative sedation as discussed above, which is lawful provided the primary intention is not to cause death but to alleviate suffering.
As set out above, the well-established ethical legal principle of self-determination allows a person to commit suicide, refuse life-saving medical treatment or starve themselves slowly to death, but not to choose a peaceful death that would end their suffering. This is ironic, if not barbaric, in an otherwise civilised society.
- Voluntary Assisted Dying Act 2019, section 16.
- Roy Morgan Poll, November 2017, <http://www.roymorgan.com/findings/7373-large-majority-of-australians-in-favour-of-euthanasia-201711100349>
- Francis, N. (2017), Dying for Choice, Opposition to Assisted Dying in Australia is Largely Religious, <http://www.dyingforchoice.com/docs/OppositionToADisLargelyReligious2017.pdf>
- Christians Supporting Choice for Voluntary Assisted Dying<https://christiansforvad.org.au/>
- Parliament of Victoria, Legal and Social Committee (2016), Inquiry into End of Life Choices – Final Report.
- Guarascio F. 2016, 17-year-old is first minor to be granted euthanasia in Belgium, <http://www.reuters.com/article/us-belgium-euthanasia-minor-idUSKCN11N09P>
- Palliative Care Outcomes Collaboration, Patient Outcomes in Palliative Care, National Results for January – June 2016.
- PCA study: Experience internationally of the legalisation of assisted dying on the palliative care sector FINAL REPORT 28 October 2018 p.5
- Karlamangla, S. 2017, There's an unforeseen benefit to California's physician-assisted death law,<http://www.latimes.com/health/la-me-end-of-life-care-20170821-htmlstory.html>
- Coronial Report CR17-61.1, 24 May 2018.