Review of VAD Law Stage 2

**REVIEW OF THE VOLUNTARY ASSISTED DYING ACT 2019 – STAGE 2 REVIEW**

Following Stage 1 of the review conducted by the three- person panel (see RESOURCES/VAD Act Review Stage 1 on this website) a research team from the Queensland University of Technology (QUT) was commissioned by the WA Department of Health to carry out the Stage 2 Review.

The Stage 2 Report was handed down in July 2024 and is a detailed and comprehensive review of the VAD legislation in Western Australia. The Report is over 100 pages and can be found here https://research.qut.edu.au/voluntary-assisted-dying-regulation/wp-content/uploads/sites/292/2024/i2/Research-Report-Review-of-WA-VAD-Act-QUT2024.pdf

A summary of the priority issues, chapter content and recommendations can be found here.

In brief, this is a summary of the summary:

Three Priority issues:

There is a lack of public knowledge about the VAD system and difficulties associated with connecting to the system;
Individuals and institutions, either intentionally or otherwise, are impeding a patient’s ability to access VAD; and
The limited VAD workforce to meet current demands gives rise to concerns for its sustainability.

Other Issues, and Key Themes (for a greater understanding of the content of the Report it is necessary to read the Summary: the following are just some of the key points):

Problems with accessing and navigating the VAD system, and barriers to access and navigation such as the current restrictions placed on health care workers with respect to raising VAD with patients, the first request process, conscientious and institutional objection, telehealth restrictions and [insufficient] patient-focused resources.
Application of VAD eligibility criteria and the difficulties that arise in practice.
Issues relating to the prescription, administration, transportation and disposal of the VAD substance.
The VAD workforce, and the adequacy of its resourcing and support.
The design of the VAD system.

Recommendations

The authors of the Stage 2 Report made 25 recommendations at three levels:

Level 1 recommendations that address the three priority issues above;

Level 2 recommendations that should be implemented as a next level of priority as soon as possible; and

Level 3 recommendations for consideration in future reviews.

Importance of the Stage 2 Review for DWDWA, its members and supporters

It will be clear from the above thumb-nail synopsis that the Stage 2 Review will be a valuable resource for the Department of Health and all the participants in the VAD process. Unfortunately, its published report – like the main report- altogether fails to record or analyse any of the substantial submissions made to it by DWDWA. These included arguments for removing the time to death criterion, and suggestions on how to permit access to VAD by means of a special Advance Health Directive, thus overcoming the present exclusion of those suffering from dementia or similar conditions. (see below for more detail).

DWDWA supports the recommendations made by the QUT research team and hopes that the Stage 2 Report will inform an open and wide-ranging (and real) review of the legislation in the near future.

DWDWA’s recommendations for improvements to the WA VAD Act

Eligibility Criteria

Residency: The residency requirement has harsh consequences for many people who are unable to satisfy it, even though they may have a close connection with WA. With VAD already a lawful end of life option in all the Australian states and the ACT, New Zealand, Canada, many states in the USA and countries in Europe, and still spreading across the globe, this eligibility criterion serves no useful purpose and is not necessary.

2. Time to death: The Joint Select Committee in its 2018 report, My Life, My Choice, recommended that there be no time to death requirement in the legislation.

DWDWA supports that finding.

Prognosis is an inexact science, and this uncertainty is exacerbated by VAD practitioners assessing it in very different ways. Eligibility for VAD should not be a lottery, in which drawing the wrong ticket frequently causes prolonged suffering before the time to death criterion is deemed to have been satisfied.

Instead of a specified time to death criterion, DWDWA supports a combination of criteria: essentially, a terminal diagnosis from one or more conditions that are causing suffering that is intolerable to the person seeking VAD, and that cannot be alleviated in a way that is acceptable to that person.

This is like the requirements in European jurisdictions which emphasise extreme suffering as the most important criterion for VAD. Those jurisdictions have a long history of safe and accessible voluntary assisted dying.

3. Decision-making capacity: In the current legislation a person must have “decision-making capacity in relation to voluntary assisted dying” and “the person’s request for access to voluntary assisted dying [must be] enduring”. The combined effect of these criteria is that if a person loses capacity after making the first or second requests, he or she is unable to access VAD.

This issue merits scrutiny in the context of VAD laws throughout the world, and in the context of the suffering caused. DWDWA’s view is that provided the person has capacity when making the first request, there is no reason why an AHD lawfully executed after that request (and two positive assessments of eligibility), while the person still has capacity, should not be honoured. The Netherlands, and to a limited extent Belgium, have long permitted this to happen, and Quebec now does so too; WA should follow the same course.

It is an anomaly that a person can die slowly by refusing food, water and life-sustaining medication or treatment by means of an AHD but cannot request a painless and peaceful death by the same means.

4. Institutional Conscientious Objection: At present, entities that oppose VAD for any reason are not obliged by the Act to facilitate or allow VAD on their premises, nor even to declare that opposition publicly. Several other Australian states do impose those requirements. That our recent review failed to recommend following suit is inexplicable.
DWDWA believes any facility providing health, aged, residential and/or palliative care should be legally obliged:

to publish its policies about VAD widely to ensure that potential applicants can make an informed choice; and
to facilitate access to VAD on its premises; and
where the facility in question is the person’s principal place of residence, to allow VAD to take place on the premises; and
where the facility in question is not the person's principal place of residence, to allow VAD on the premises if the person is suitably medically certified as unable to be safely moved.

5. Self-administration and practitioner administration: Over the three and a half years that VAD has been a lawful end of life choice in Western Australia, the overwhelming majority of people have opted for practitioner administration.

DWDWA recommends that the VAD Act be amended to provide for:

an entirely free choice between these two options;
a simple process to switch from one to the other;
A simple process to transfer the role of administering practitioner; and
the presence of an administering practitioner at a self-administration at the request of the person dying, and the ability of that practitioner to intervene in the process if necessary to ensure a peaceful death.

6. Assistance with self-administration: Section 113(a) of the WA VAD Act provides that “a person does not incur any criminal liability if the person — in good faith, assists another person to request access to, or access, voluntary assisted dying in accordance with this Act”.

In contradiction of this provision, section 13.2.1 of the WA VAD Guidelines for Medical Professionals provides that a person who has opted for self-administration “needs to be able to complete [all the actions in relation to preparing and ingesting the lethal substance] entirely by themselves”.

There is no justification in the Act for this requirement nor any precedent for it in other jurisdictions. It is a restriction not found in any other Australian state.

The Guidelines need to be amended to provide that assistance may be provided during self-administration at the person’s request. This would bring the Guidelines into line with the Act.

NOTE: In addition to the above recommendations, Dementia is a vitally important topic in relation to the reform of the WA Voluntary Assisted Dying Act.

More information about DWDWA’s position and policy about Dementia can be found on this website under RESOURCES/Dementia

Institutional Conscientious Objection

At present, entities that oppose VAD for any reason are not obliged by the Act to facilitate or allow VAD on their premises, nor even to declare that opposition publicly. Several other Australian states do impose those requirements. That our recent review failed to recommend following suit is inexplicable.

DWDWA believes any facility providing health, aged, residential and/or palliative care should be legally obliged:

to publish its policies about VAD widely to ensure that potential applicants can make an informed choice; and
to facilitate access to VAD on its premises; and
where the facility in question is the person’s principal place of residence, to allow VAD to take place on the premises; and
where the facility in question is not the person's principal place of residence, to allow VAD on the premises if the person is suitably medically certified as unable to be safely moved.

Self-administration and practitioner administration

Over the three and a half years that VAD has been a lawful end of life choice in Western Australia, the overwhelming majority of people have opted for practitioner administration.
DWDWA recommends that the VAD Act be amended to provide for:

an entirely free choice between these two options;
a simple process to switch from one to the other;
A simple process to transfer the role of administering practitioner; and
the presence of an administering practitioner at a self-administration at the request of the person dying, and the ability of that practitioner to intervene in the process if necessary to ensure a peaceful death.

Assistance with self-administration

Section 113(a) of the WA VAD Act provides that “a person does not incur any criminal liability if the person — in good faith, assists another person to request access to, or access, voluntary assisted dying in accordance with this Act”.

There is no justification in the Act for this requirement nor any precedent for it in other jurisdictions. It is a restriction not found in any other Australian state.

The Guidelines need to be amended to provide that assistance may be provided during self-administration at the person’s request. This would bring the Guidelines into line with the Act.

VAD Workforce

DWDWA endorses the Stage 2 recommendations that the VAD workforce needs to be increased, including through proper remuneration and an increased role for nurse practitioners and senior nurses in the VAD process.

Statewide Care Navigator and Pharmacy Services

These services are essential to the proper functioning of the VAD Act and the facilitation of the process for those wanting to access VAD.

DWDWA believes that it is inevitable that emergencies will sometimes arise during the VAD process and that, unlike at present, these services should have an “out of hours” support helpline to accommodate this.

In addition, DWDWA endorses the Stage 2 recommendations that consideration be given to

“whether Statewide Care Navigators should be located in regions with high VAD activity; and
whether regional hubs should be established to dispense medication.”

DWDWA would be very interested to hear your stories about your experiences with the VAD process in Western Australia, including factors that either facilitated or impeded access.

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