The Voluntary Assisted Dying Act 2019 was passed in December 2019, but was made subject to an 18 month implementation period. It will become effective in or about June 2021.
During the implementation phase DWDWA will be providing information about a number of different aspects of the new law, and some of the practicalities that will be needed to access it. When the COVID19 restrictions are lifted, DWDWA will also be running workshops that will be more personal and interactive.
PLANNING AHEAD - PART 1
In this world nothing can be said to be certain, except death and taxes.
If at all possible, we should plan for the first of these certainties - by having a valid and up to date will, signing an advance health directive, and making sure our health practitioners and families know what we want should we become terminally ill. These topics will be discussed in future information sheets, but the most important thing we can do if we want the choice to end suffering at the end of life, is to find a doctor now who agrees to help us then.
During the VAD campaign we were immensely fortunate to have the vocal and consistent support of Professor Fiona Stanley, and this is still unwavering.
Professor Stanley has signed this letter to her colleagues in the medical profession, which has a survey on the back. Please print out a copy of the letter and either send it to your doctor or, even better, discuss it with him or her at the first opportunity. If the response you get is positive, please ask that the letter be given to all the other doctors in the practice.
PLANNING AHEAD - PART 2
ADVANCE HEALTH DIRECTIVES
We have spoken of the importance of finding a doctor who is willing to help you if you are eligible for voluntary assisted dying and wish to end your suffering when such help becomes lawful under the VAD Act next year. Now we will address the issue of Advance Health Directives (AHDs).
While an AHD is not part of the VAD Act, it is an important aspect of planning for a peaceful death.
The most important difference between VAD and an AHD:
- One of the criteria you must satisfy to access voluntary assisted dying is that you must have legal capacity at every stage of the process.
- An AHD applies only if you are no longer capable of making decisions, which means you can override it at any time while you still have legal capacity. An AHD sets out your instructions in a statutory instrument that sits at the top of the hierarchy of authority in relation to your care. It overrides the wishes or instructions of any other person or organisation, including family, health professionals and carers.
The existing requirements for AHDs are cumbersome but are likely to be changed in the foreseeable future following the wide-ranging recommendations made in August 2019 by the WA Ministerial Expert Panel on Advance Health Directives.
Template: The expert panel proposed improvements to the AHD template to make it more user-friendly by providing a handwritten sample and allowing completion through tick boxes, free text or a combination of both. Like the existing form, the new form will encourage but not require medical advice and will include technical notes about the correct completion of the form, including the witness requirements.
Dedicated Register: Another important recommendation of the expert panel is that there should be a dedicated register for AHDs. Although registration will be voluntary, it is desirable for AHDs to be located in one place on a database that is readily accessible to providers of emergency services, GPs, staff in private and public hospitals and aged care facilities.
Funding and Implementation: Although funding has been provided for the implementation of the 22 recommendations approved by government, little progress has been made to date with implementation, so the existing requirements about AHDs still apply. If you don’t have an AHD you should not wait for the implementation of the recommendations before making one, since when the new regime is in place any existing AHDs and common law “living wills” will continue in full force and effect.
The government did not accept recommendation 23, about the establishment of an expert panel to investigate how to provide people with a neurodegenerative condition access to choice regarding voluntary assisted dying, particularly through the application of AHDs.
Why it’s important to talk about death and dying before they are imminent
Talking about death and dying is often difficult not only for those facing death but for their family and friends and carers. Nothing could have illustrated this more clearly than the pandemic that has imposed on all of us a new reality around health and safety.
We suffer when those we love suffer, and grieve when they die. What we don’t want at the same time is to have uncertainty - which in turn often leads to conflict with other family members and carers - about what the dying person may have wanted in certain circumstances.
It is a gift to your loved ones to talk to them about your wishes for when you die, and to leave behind a valid will, AHD and enduring powers of attorney and guardianship that reflect those wishes.
How to make a valid AHD
This is the link to the AHD form on the Department of Health website: http://www.health.wa.gov.au/docreg/education/population/HP11536_advance_health_directive_form.pdf
The form provides notes for the preparation and execution of a valid AHD.
One of the two witnesses to the form must be an authorised witness under the Oaths, Affidavits and Statutory Declarations Act 2005. Here is a list of those authorised witnesses: https://courts.justice.wa.gov.au/_files/Professions_witness_statutory_declarations.pdf
Sample AHD: This link (Sample Advance Health Directive) will take you to a sample AHD completed by a fictional person that gives you examples of the instructions you may wish to include in your AHD. It is not intended in any way to prescribe what should be in your AHD, which should set out your wishes in your own words.
It is a good idea to discuss your completed AHD with your doctor before signing it to make sure that he or she understands your instructions. It is also important to discuss it with your family to avoid difficulties among family members who may have differing views about your care.
Even if you have an AHD it is a good idea to review it. There are already lawful ways to ensure that suffering while dying is not prolonged, and your AHD should ensure that your wishes in this regard are clear.