Is Victoria’s VAD legislation ‘too safe’?

Thursday, 20 April 2023  | Denise Cooper-Clarke

Victoria was the first Australian state to legalise ‘Voluntary Assisted Dying’ (VAD), which came into effect in June 2019. The legislation was proudly described as the safest and most conservative in the world, with comprehensive safeguards to ensure that participation is completely voluntary.

However, VAD legislation in Victoria may not remain as safe or as voluntary if amendments proposed by some ethicists, sections of the media and assisted dying advocacy groups are passed. Safety, it is claimed, must be balanced with equity of access. Strict safeguards are now framed as barriers to access, obsolete and onerous. It is said that there can be ‘too much safety’.[1]

This development comes as no surprise to opponents of assisted dying, who have always warned, based on what has happened in overseas jurisdictions, that safeguards would progressively be weakened.

In 2023 there will be a government review of the operation of the first four years of the legislation and the VAD Review Board will make recommendations for possible changes that it says will have ‘a focus on improvements in access and safety’.[2]

But increasing access to VAD almost always means reducing safety. None of the possible recommendations foreshadowed in the report improve safety. Several of them aim to improve access at the expense of safety. The critical question for policymakers is how safety and access are to be balanced: Which has priority? How much safety will we forego in order to achieve greater access?

For many years, Australian State governments declined to legalise assisted dying because they were not convinced it could be done safely. There was concern that the lives of vulnerable people, the elderly, the sick, the disabled and the depressed would be put at risk – first, through coercion from relatives, whether well-meaning or unscrupulous, and second, through pressure to end their lives for fear of being a financial or emotional ‘burden’ on others. Christians should have a special concern for the lives of these vulnerable people.

Even ‘the safest and most conservative’ assisted dying laws cannot be completely safe. Patients may die unnecessarily through misdiagnosis, or prematurely through mistaken prognosis. Despite the requirement for a doctor authorising assisted dying to determine that the patient’s request is voluntary, subtle coercion may not be detected. Decision-making capacity is not always easy to determine, nor the contribution that treatable depression makes to a VAD request.

Problems with removing ‘barriers to access’

Three of the recommendations flagged by the VAD Review Board are problematic. They propose the removal of three ‘barriers to access’ to VAD.

1. The prohibition of the use of telehealth in relation to voluntary assisted dying

The Victorian Government’s advice to health practitioners is that ‘Providing patients with information about voluntary assisted dying over the telephone, via email or through the use of telehealth could be a breach of the Commonwealth Criminal Code Act 1995, sections 474.29A and 474.29B’. These sections of the Code make it an offence to use a carriage service (electronic means of communication including telephone and internet) to counsel or incite suicide or attempted suicide, or to promote or provide instruction on a particular method of committing suicide.

This restriction is a barrier to access for those with mobility issues, who are severely ill and/or who live in regional Victoria and may have long distances to travel for an in-person consultation with a doctor who has done the necessary training to assess patients for VAD.

However, it is well recognised that telehealth is relatively inadequate as a means of communication compared to face-to-face consultation, especially given the serious nature of the discussion. Subtle clues that the patient is experiencing pressure or coercion or is suffering from treatable depression that is contributing significantly to their request may be missed. Even those who wish to make telehealth an option for some VAD consultations recognise its limitations and recommend that at least one of the consultations be in person.

2. The prohibition on medical practitioners initiating discussion of VAD

Vic Health’s ‘Information for people considering voluntary assisted dying’ states: ‘Only you can start a discussion with your doctor or health practitioner about voluntary assisted dying. … This helps to make sure your decision to seek voluntary assisted dying is voluntary’. So, if this prohibition is removed, we will be less sure that it is indeed voluntary in all cases.

The prohibition has been described as a ‘gag clause’, an unwarranted infringement on doctor-patient communication. Medical practitioners might not coerce patients into using VAD, but it is naïve to suppose that raising it as a possible option could not unduly influence a patient. The power imbalance in the doctor-patient relationship cannot not be ignored, especially when patients are vulnerable. The suggestion that VAD is an option might easily be taken as a recommendation, or worse, as an indication that the patient would be ‘better off dead’.

3. The requirement for self-administration of the voluntary assisted dying substance unless the applicant is unable to self-administer

It is argued that removing this requirement promotes autonomy by giving the patient the choice of self or practitioner administration. VAD legislation in New Zealand, Western Australia, Queensland, Tasmania and New South Wales allows for this choice if patients have concerns about self-administration, and some may indeed find this daunting.

Yet this requirement emerges out of respect for patient autonomy and concern for the voluntariness of the decision. In self-administration, the patient is in control of the timing of their death, or indeed whether they eventually take the medication or not. It is the safer option because making an appointment for practitioner administration, even if there is reassurance that the patient can withdraw their consent at any time, might exert subtle pressure on the patient to go through with the procedure.

Prioritising access over safety

The main concern with the suggestions above for removing safeguards that are recast as barriers to access is the move toward prioritising access over safety. How many other safeguards will be removed from the Victorian VAD legislation in the future until access is regarded as sufficient? Below are examples of other requirements that have been or are being challenged and that also pose risks if removed.

1. The requirement that patients have decision-making capacity

The stated position of Dementia Australia (formerly Alzheimer’s Australia) is ‘to promote the inclusion of people living with dementia in legislation that enables voluntary assisted dying’.[3] This would require that patients request VAD through an Advance Directive. The current Victorian legislation rightly precludes this as the patient must have decision-making capacity at the time VAD occurs.

2. The requirement that patients have a terminal illness

The Netherlands first legalised euthanasia and physician-assisted suicide (PAS) in 2002 as a ‘last resort’ and it was restricted to terminally ill patients. Then it was extended to those with chronic physical illness, then to the mentally ill, then to those with psychological distress or mental suffering.

When Canada legalised MAID in 2016, it was restricted to patients for whom ‘natural death has become reasonably foreseeable’. However, this restriction was challenged in the Supreme Court. In 2021 new MAID legislation did not have this restriction.

Finnish philosopher Jukka Varelius argues that existential suffering without any accompanying medical condition (terminal or chronic) ought to be sufficient grounds for euthanasia and PAS, since the existential suffering involved is similar to that of patients with a medical condition.[4]

If VAD were extended to non-terminal patients, it would be difficult to maintain the position that it is not suicide as the patient is ‘already dying’.

3. The requirement that at least one of the two doctors involved has expertise and experience in the condition expected to cause the patient’s death

This requirement is designed to reduce the risk of mistaken diagnosis or prognosis. It has been interpreted to mean that one of the two doctors is ‘a medical specialist in the patient’s medical condition’.[5] Given the relatively low number of doctors in general, and specialists in particular, who have done the training for VAD, especially in regional areas, patients may have difficulty finding a specialist to be involved. However, removal of this requirement would increase the risk of mistaken diagnosis or prognosis and so unnecessary deaths.

4. The provision for conscientious objection to involvement in VAD

This provision is undoubtedly a barrier to access, but it protects the fundamental right of health care professionals to freedom of conscience. They have the right not only to refuse to participate in the process, but also to refuse to refer patients on to a willing practitioner, or provide information about it, though they should not impede access.

It is suggested that doctors ought to be required to refer patients to colleagues who are willing to participate in VAD. A more radical and troubling view would see the right of conscientious objection to VAD for health care professionals removed altogether.[6] This runs directly counter to the ethical stance of the medical profession from the time of Hippocrates. In October 2019 the World Medical Association (WMA) reiterated its firm opposition to both euthanasia and PAS and said that no doctor should be forced to participate in them nor be obliged to make referrals for them. Of the 109 constituent National Medical Associations of the WMA, 105 are similarly opposed, including the Australian Medical Association.

A neglected safety concern: lack of access to specialist palliative care

It is troubling that the Review Board is considering recommendations to address inequity of access to VAD without addressing inequity of access to specialist palliative care services.

Of those who have applied for access to VAD since it was legalised in Victoria, 37% lived in regional Victoria despite only 22% of the Victorian population living in regional Victoria.[7] It seems likely that inequities in access to medical services in general and palliative care in particular are a significant contributing factor to this discrepancy. Until there is equitable access to all end-of-life options, patients do not have a genuine choice. If one option (VAD) were significantly more convenient and cheaper in terms of travel, this might exert pressure on some patients to choose VAD, casting doubt on the voluntariness of their decision.

Conclusion

As various groups lobby the Victorian Government to remove barriers to access in its Voluntary Assisted Dying legislation, it is possible that ‘the safest and most conservative’ VAD laws in the world will be considered too safe. The lives of vulnerable people will be at greater risk.

Denise Cooper-Clarke is a graduate of medicine and theology with a PhD in medical ethics. She is a voluntary researcher with Ethos.

Image credit: Euthanasia by Alberto Biscalchin.

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