All Australian states now have voluntary assisted dying laws (VAD). They are among the most restrictive VAD laws in the world. They explicitly require people to suffer, and be expected to die within 6 to 12 months, before being able to access voluntary assisted dying. They restrict access to VAD for conditions that many countries with decades of experience have allowed access to for many years. Australian laws are bureaucratic and they can exclude people from access to VAD at the very last minute of that process as a result of changes over which they have no control.
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All state laws set out principles that persons exercising a power or function under their VAD Act must observe, including that "a person's autonomy, including autonomy in respect of end-of-life choices, should be respected". But all of the Acts then set out eligibility criteria and processes which do not respect the autonomy of persons seeking VAD.
The "End of Life Directions for Aged Care" consortium summarises the eligibility criteria for access to VAD across states as follows: To be eligible for VAD a persons must have a disease, illness or medical condition that is advanced and will cause death and; incurable/irreversible; and is expected to cause death within six months, or 12 months for neurodegenerative conditions; and is causing suffering (physical or non-physical) that cannot be relieved in a way that the person finds tolerable.
Australian eligibility criteria are different to all other jurisdictions by requiring a terminal condition AND suffering that cannot be relieved in a way that a person finds tolerable.
There are 11 jurisdictions in the USA that permit voluntary assisted dying - not all of them blue states. In 10 of those jurisdictions, there are explicit laws permitting VAD for terminal conditions (6 to 12 months of death) with no requirement for intolerable suffering.
The Netherlands and Belgium have permitted voluntary assisted dying since 2002 and, in part, their eligibility criteria are similar to those in Australia. To be eligible for VAD in the Netherlands requires a patient's doctor to "be convinced that the patient's suffering is unbearable with no prospect of improvement" and "to have come to the conclusion, together with the patient, that there is no reasonable alternative in the patient's situation" - but the condition does not have to be terminal. The Belgium law has similar wording.
In Switzerland, historically, suicide was a private matter and regarded as honourable in some circumstances. Altruistic assisted suicide was decriminalised in 1942. Assisted suicide in Switzerland does not require any medical justification. A doctor may prescribe a lethal drug, and, if this "assistance" is altruistic, the doctor is not subject to legal or professional scrutiny. The person must administer the drug and cannot be assisted to do so.
Another way in which Australia is different to many other jurisdictions is the complexity of processes required to access assisted dying.
The Victorian law defines a number of steps a person has to follow to access VAD: a request for a doctor for assistance to die; an assessment by that doctor; an assessment by another doctor; a written declaration of your intention; another request; the nomination (on a prescribed form and witnessed) of a contact person to be involved with your death; a final review and a final request - at which stage a voluntary assisted dying permit may be issued. Then the doctor may provide a prescription for a lethal drug. The person may self-administer the drug, or get assistance from the doctor (after the doctor requests, and is issued, with a permit to assist).
Most US jurisdictions require two oral requests and one written request. Belgium requires two requests. The Netherlands usually requires a single request. In some jurisdictions, a person is only required to be seen by one doctor.
In Australia, if a person starts the VAD process and then loses mental capacity, they are no longer eligible for voluntary assisted dying and suffer until they die. In the Netherlands and Belgium, loss of mental competence does not make a person ineligible for assisted dying once they have started the process.
Australia excludes persons with dementia and mental health conditions from accessing voluntary assisted dying. The Netherlands and Belgium have had strict and detailed processes to permit people with dementia and psychiatric conditions to access voluntary assisted dying since the early 2000s. Luxembourg, Columbia, and Canada (since 2015) permit, or are developing protocols and procedures to permit, access by people with these conditions.
A major consideration in excluding people with non-terminal conditions from accessing VAD is the high rates of suicide among people with such conditions. Suicide rates amongst people with many chronic and debilitating health conditions (including neurodegenerative, cardiovascular, musculoskeletal and lung diseases) are 2 to 5 times higher than for the general population. In most countries, the most common forms of suicides are shooting, hanging and jumping from heights. These suicides cause significant trauma amongst first responders and surviving family members.
In 2020, the Netherlands about 4 per cent of all deaths were "assisted" deaths, Belgium 1.9 per cent, Switzerland 1.7 per cent and Oregon 0.9 per cent. The rates of voluntary assisted dying are associated with differences in laws, social values, and the different demographic and health conditions in the countries. These factors also influence suicide rates - Oregon suicide rate is 50 per cent higher than in Belgium and Switzerland and twice as high as that in the Netherlands. Swiss statistical reports have, for many years, linked the declining suicide rate to the increasing assisted suicide rate.
The main reasons that people request VAD is not insufferable pain or closeness of death. In all jurisdictions, the main reasons consistently expressed are about loss or autonomy, loss of dignity, loss of function and loss of quality of life. Many people with non-terminal conditions express these concerns, rather than concerns about unmanageable pain. So why do Australian VAD laws require of suffering and terminal conditions?
National Seniors Australia found, in a 2020 survey of members, strong support for extending voluntary assisted dying to non-terminal conditions. All pro-VAD respondents, including those who supported its extensions to non-terminal conditions, cited "quality of life", "dying with dignity", "autonomy" and "control over one's death" as their reasons.
There are many reports, including from Victoria in 2022, that 30 to 50 per cent of people who are provided with lethal drugs under VAD programs do not use the drugs. This is consistent with the view that people who seek voluntary assisted dying want some control over how they live and die.
- Roy Harvey lives in Canberra and has extensive experience on ministerial and National Health and Medical Research Council taskforces and committees, on issues including medical negligence in hospitals, pharmaceutical drug use, quality of life measurement, and health outcomes.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; beyondblue 1300 224 636
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