Workshop 1: Voluntary Assisted Dying Act 2019 - Eligibility criteria & Process

Voluntary Assisted Dying Act 2019 – FAQs about sections 15 and 16

Requirements to access VAD – Eligibility Criteria

16.          Eligibility criteria

      (1)     The following criteria must be met for a person to be eligible for access to voluntary assisted dying —

                  (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.

      (2)     A person is not eligible for access to voluntary assisted dying only because the person has a disability or is diagnosed with a mental illness (as defined in the Mental Health Act 2014 section 4).

Frequently Asked Questions – Section 16

1. Are there any circumstances in which a minor is able to access VAD?

No.

2. How do I satisfy the requirements that

(a) I am an Australian citizen or permanent resident; and

(b) I have been ordinarily resident in WA for at least 12 months at the time of making the first request?

(Please note that the answers below are suggestions only as DWDWA is not able to give official advice on what documents will suffice. We expect the Department of Health or Implementation Leadership Team to publish guidelines before the VAD Act comes into operation next year but these may be more general than specific).  

(a)  In most cases, a Medicare card may suffice. If for any reason this is not acceptable, a birth certificate, citizenship certificate, passport (showing citizenship or permanent resident visa) will satisfy (a) above. 

(b) The 12 months' residency requirement may be established by the patient’s medical record or driver's licence, or by the production of documents evidencing more than 12 months residency in WA, such as a lease, or an account for services or rates. 

3. If I have a number of co-morbidities, none of which will cause death or intolerable suffering on its own, will I qualify for VAD?

No, there must be a diagnosed terminal disease, illness or medical condition that

(a) is advanced and progressive and will cause your death, on the balance of probabilities, within the timeframes specified in the Act; and

(b) is responsible for at least some of the suffering that cannot be relieved in a manner you find tolerable.

4. How do I satisfy the criterion about suffering in 3(b) above?

This is a subjective test. If your suffering cannot be alleviated in a way that you consider tolerable, this criterion is satisfied.

5. What does ‘decision‑making capacity in relation to voluntary assisted dying’ mean?

To have the necessary decision-making capacity, you need to satisfy the components of section 6 of the Act. In summary, these are that you understand the concept of VAD and the information provided to you in relation to it, and the consequences of deciding that you want to access it. You must also be able to communicate your decision in some way, not necessarily verbal.

You will be presumed to have this decision-making capacity unless you are shown not to have it.

6. Would a person with dementia (including Alzheimer’s disease) be able to access VAD?

Someone with early onset dementia who satisfied all the eligibility criteria (including having decision-making capacity) in the Act would be able to access VAD, but would no longer be able to do so once they lost that capacity. Since the patient’s request must be enduring the patient must have decision-making capacity at every stage of the process, including the final request.

It is not lawful for a doctor to follow a request in an AHD to access VAD. However a request for terminal palliative sedation, withholding of all treatment (including blood transfusion),  nutrition and hydration, turning off life support etc should be respected by doctors.

7. How will I satisfy the requirement that I must be acting ‘voluntarily’ and ‘without coercion’?

Essentially this is a matter of judgement for each of the assessing doctors. If they are in any doubt then this question must be referred to “another person who has appropriate skills and training to make a determination in relation to the matter”.

There are a number of safeguards within the Act to ensure that the person seeking to access VAD has both decision-making capacity and is acting voluntarily and without coercion at every stage of the process. Ultimately if doubt persists the matter can be referred to the State Administrative Tribunal. It is a crime punishable by up to 7 years imprisonment to induce a person to make a request for access to VAD. To induce a person to self-administer a VAD substance is punishable by life imprisonment.

8. What does the requirement that a person’s request to access VAD must be enduring mean?

There are safeguards throughout the Act to allow a person to change their mind about accessing VAD at any time and withdraw from the process.

If the person withdraws for any reason they can re-commence the process by making another first request.

9. What safeguards are there to ensure that a person with a disability or mental illness will neither be discriminated against nor be subject to undue influence or coercion to access VAD against their will?

Having a disability or mental illness will never of itself qualify someone for access to VAD, but neither will it disqualify them provided that they satisfy all the other eligibility criteria.

The safeguards in relation to decision-making capacity, the obligation for referral to an appropriate person if in doubt and the heavy penalties for abuse will all act as stringent safeguards.

Requirements to access VAD – Process

15.          When person can access voluntary assisted dying

               A person may access voluntary assisted dying if —

                  (a)     the person has made a first request; and

                  (b)     the person has been assessed as eligible for access to voluntary assisted dying by —

                               (i)     the coordinating practitioner for the person; and

                              (ii)     the consulting practitioner for the person;

                            and

                   (c)     the person has made a written declaration; and

                   (d)     the person has made a final request to the coordinating practitioner for the person; and

                   (e)     the coordinating practitioner for the person has certified in a final review form that —

                               (i)     the request and assessment process has been completed in accordance with this Act; and

                              (ii)     the practitioner is satisfied of each of the matters referred to in section 51(3)(f);

                             and

                    (f)     the person has made an administration decision; and

                    (g)     if the person has made a self‑administration decision, the person has appointed a contact person.

Frequently Asked Questions – about Section 15 and more general

16. How can the first request be made?

A person may make a request to a medical practitioner for access to voluntary assisted dying (VAD) verbally or in another way (eg by gestures). The request may be made in person or by audiovisual communication, unless this conflicts with a federal law.

The request must be clear and unambiguous and must be made during a medical consultation.

17. Who may initiate a conversation about VAD?

(a) The person seeking to access VAD; or

(b) A medical or nurse practitioner if at the same time the person is also informed about the treatment options and palliative care options available to the person and likely outcomes of both.(s.10) 

18. Does this mean that ordinary people cannot discuss VAD with each other?

No. There is nothing in the Act to prevent people from discussing VAD. There are however extremely severe penalties for anyone attempting to induce a person to access VAD, or to take a VAD substance once they have qualified for VAD and have that medication in their possession.

19. Who are the coordinating and consulting practitioners?

These are doctors who meet the eligibility requirements for medical practitioners specified in s.7. Both doctors must independently assess the person as meeting the eligibility criteria for anyone seeking access to VAD. These are set out in s.16 (see below).

No doctor is obliged to participate in VAD, and no doctor may participate unless they have the required qualifications and have done the training.

If a doctor refuses to participate for conscientious reasons, he or she must immediately after the first request inform the person of this, and must provide the person with the information that will be specified in regulations to the Act.

At this stage we don’t know yet exactly what that information will be but it is likely to include referring the person to publicly available information about doctors who are willing to participate, and to the care navigators who will be funded by the government

20. What do the words “independently assess” mean?

The two doctors who assess whether the patient satisfies the eligibility criteria must be independent of each other, in other words they should not discuss or collude with each other in coming to their conclusions.

They must also be independent of the patient in the sense that they must not be related to the patient, and they cannot witness the written declaration (see 6 below) or be a beneficiary under the patient’s will. This does not mean that they cannot be the patient’s usual doctor who would be the most obvious choice for a person wishing to access VAD.

21. How do I find a doctor willing to participate?

Medical practitioners are themselves getting to grips with the new legislation and whether they will be both qualified and willing to participate (including by undertaking the required training).

In the meantime the most practical thing you can do is ask if your own doctor will be willing to help you if and when that time comes. On the DWDWA website at https://www.dwdwa.org.au/vad_implementation you can print the “Letter to Doctors” from Professor Fiona Stanley urging doctors to support this cause, with a survey on the back. You may find it easier to give or send this to your doctor rather than asking the question in person.

In due course a list of doctors who have done the training and are willing to assist is likely to be made available by Government.

22. What is the written declaration? (ss. 42-46)

If both doctors assess the person as being eligible for VAD, the next step if the person  wishes to proceed is to make a second request in the form of a written declaration stating that the request is being made voluntarily and without coercion and that the person understands the nature and effect of the request.

The declaration must be signed by the person (or by another person if the person cannot sign) in the presence of 2 adult witnesses.

A witness cannot be one of the two doctors, a family member or anyone who ‘knows or believes’ that he or she is a beneficiary under the person’s will, or may benefit financially or in any other material way from the person’s death. 

23. When and how is the final request made? (s. 47, 48)

The final request may be made in the same way as the first request (see 1 above).

However, it cannot be made

  • Unless 9 days have elapsed from the day on which the first request was made, (unless in the opinion of both doctors the patient is likely to die within that period); and
  • Until after the consulting practitioner has assessed the person as being eligible for VAD.

24. What are the two administration decisions a patient can make?

A patient may, in consultation with the coordination practitioner (first doctor):

  • Decide to self-administer a VAD substance; or
  • Decide that the VAD substance should be administered by the administering practitioner.

Either the first doctor or a nurse practitioner who satisfies the eligibility requirements may act as the administering practitioner.

Either decision may be revoked by the person at any time.

If the person decides to self-administer:

(a) the first doctor is authorised to prescribe the VAD substance, and an ‘authorised supplier is authorised to dispense it to the patient, a contact person for the patient or an agent of the patient;

(b) The patient must appoint a contact person who is authorised to act on behalf of the patient and has certain responsibilities after the patient’s death.

A practitioner administration decision may be made by the patient if the first doctor advises the patient that self-administration is inappropriate having regard to

(a) The patient’s ability to self-administer the VAD substance; and/or

(b) The patient’s concerns about self-administration; and/or

(c) The method of administration most suited to the patient.

25. What can we do as ordinary citizens to help overcome the arguments about the ‘slippery slope’?

Since we now have VAD legislation this argument has no effect for the moment. The Act is however subject to review and future Parliaments may have to deal with that argument again if there are signs that the safeguards haven’t worked effectively or there is a strong push for the Act to be liberalised. Although there have been some changes to VAD legislation in other parts of the world this has been through the democratic process and there is no precedent wide scale relaxation of safeguards.

26. What provisions are there in the Act for patients who are non-verbal, whether as a result of their condition or otherwise?

As set out in 5 above, to satisfy the criterion that you have decision-making capacity you need to demonstrate that you understand the concept and consequences of VAD, and be able to communicate your decision to access it in some way. That communication does not have to be oral – it can for instance be in writing, by gestures or by any other method so long as it is clear and unambiguous.

It is preferable that the first request, the final request and the administration decision be made in person but if this is not practicable then these may be made by audio-visual communication, and advice and information may also be given by a medical practitioner in the same way.

If it is not practicable for a patient to make a first request, final request or administration decision in person, then:

(a) the patient may make the request or decision using audiovisual communication; and

(b) the medical practitioner who receives the request or is being informed of the decision may give the patient advice or information in relation to the request or decision using audiovisual communication.

In other circumstances a medical practitioner or other registered health practitioner may give advice or information to, or otherwise communicate with, a person for the purposes of this Act using any method of communication (including electronic communication) that the practitioner considers appropriate.

27. How do you become a care navigator?

This issue is still being considered by the Implementation Leadership Team. There will be a workshop in 2021 about care navigators and their role in facilitating voluntary assisted dying, especially in country Western Australia.

28. What happens if the two assessing doctors cannot determine or agree on whether the applicant has satisfied one of the eligibility criteria?

If either of the doctors is unable to determine whether the applicant

  • has a disease, illness or medical condition that meets the requirements in section 16(1)(c), or
  • has decision-making capacity in relation to VAD as required by section 16(1)(d);

then the applicant must be referred to a registered health practitioner who has the appropriate skills and training to make a determination in relation to the matter.

If either of the doctors is unable to determine whether the applicant is acting voluntarily and without coercion as required by section 16(1)(e), the matter must be referred to another person (not necessarily a medical practitioner) who has the appropriate skills and training to make a determination in relation to the matter.

29. If a doctor refuses a request to become either the coordinating practitioner or the consulting practitioner, is it ‘doctor-shopping’ to ask another doctor?

See 19 above. Any doctor may refuse to participate in the VAD process for conscientious or any other reason. It is not ‘doctor shopping’ to look for another doctor who agrees to take on the role of one of the assessing doctors.

Only a doctor who has the necessary qualifications and who has completed the mandatory training may participate.

30. Is there a time line on using the VAD substance once a request has been approved?

No. Once you have satisfied all the eligibility and process requirements, have opted for self-administration and have the VAD substance in your possession, it is entirely up to you when or whether you take it. It is the experience from other jurisdictions that people are comforted merely by knowing that there is a way out if their suffering becomes intolerable and choose to live longer than they otherwise might.

31. Is VAD considered to be suicide and can someone who helps a person to take the VAD substance be prosecuted for ‘assisting a suicide’?

No and no.

Under Western Australian law, a person who dies as the result of the administration of a prescribed substance in accordance with this Act does not die by suicide. Nor is suicide entered on the death certificate as the cause of death.

A person does not incur any criminal liability if the person:

(a) in good faith assists another person to request or access VAD in accordance with the Act; or

(b) is present when another person self‑administers or is administered a prescribed substance in accordance with this Act.