Academic journal article Australian Health Review

Future of Assisted Dying Reform in Australia

Academic journal article Australian Health Review

Future of Assisted Dying Reform in Australia

Article excerpt

Introduction

In November 2017, the Victorian Parliament passed the Voluntary Assisted Dying Act 2017 (Vic). Following a planned implementation period of 18 months, the regime will come into force on 19 June 2019. This will be the first time voluntary assisted dying (VAD) has been lawful in Australia since the Northern Territory's short-lived Rights of the Terminally Ill Act 1995 (NT), which was overturned by the Commonwealth Government's Euthanasia Laws Act 1997 (Cth).

The Voluntary Assisted Dying Act 2017 (Vic) permits an adult with decision-making capacity who is resident in Victoria to seek assistance to die, provided that request is made voluntarily and without coercion. To be eligible under the Act, a person must have an incurable disease, illness or medical condition that is advanced, progressive and will cause death within 6 months (12 months for neurodegenerative conditions). That condition must also be causing suffering that cannot be relieved in a manner that the person considers tolerable. The nature of the assistance to die is intended to be primarily through prescribing lethal medication that the person then takes themselves (often called physician-assisted dying). However, there is an exception that operates when a person cannot physically take or digest that medication. In such a case, a doctor is permitted to administer the medication to the person (often called voluntary euthanasia).1 Overall, the regime is very narrow in scope and has a large number of safeguards (68 in total). This enabled the Victorian Premier and others to describe it as the 'most conservative scheme in the world'.2

As Victoria moves towards implementation of its VAD laws in June 2019, questions arise about whether other Australian states and territories will follow. There is considerable political activity and interest in many jurisdictions,3-5 but whether this translates into law reform is a vexed issue. The Victorian experience, which saw an extended reform process and bitter parliamentary debate, demonstrates the major challenges of changing the law in this area. This paper considers the likelihood of future VAD reform in Australia having regard to both local and international developments. It ultimately concludes that VAD is a 'train that has left the station'6 in Australia, with reform likely to occur steadily but surely across the country.

Short history of reform attempts

Commonwealth, state and territory governments have been attempting to reform laws relating to VAD for more than three decades. In 1995, the Northern Territory was the first jurisdiction in the world to have operative legislation legalising VAD with the enactment of the Rights of the Terminally Ill Act 1995 (NT). As noted above, this Act was overturned by the Commonwealth Government under its constitutional powers that relate to territory laws; that federal law still operates today to prohibit territories from passing laws about VAD.

The difficulty in effecting law reform on this topic is evidenced by the significant number of failed legislative attempts in Australia. A study of law reform efforts up to the end of 2015 documented 51 bills, introduced at the commonwealth, state and territory level, dealing with the issue ofVAD.1 Although some bills dealt with matters such as referendums to consider the issue, 39 of these bills specifically aimed to legalise VAD.

A high level of legislative activity has continued since that review, with a further seven bills being tabled from the beginning of 2016. It is interesting to observe that the bills that have been tabled over more recent years have come close to passing the relevant parliamentary chamber (or chambers) where they have been tabled. These bills include the Victorian bill that ultimately became law, the Death with Dignity Bill 2016 (SA), which was defeated by one vote in the House of Assembly, and the Voluntary Assisted Dying Bill 2017 (NSW), which was also defeated by a single vote in the Legislative Council. …

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