Voluntary assisted dying considered in NSW and VIC Parliaments.


assisted dying

Voluntary assisted dying is legal in many parts of the world and has been for many years in some countries, notably Switzerland where it’s been lawful for 60 years.

Both the NSW and Victorian Parliaments looked at this complex issue recently when considering voluntary assisted dying (VAD) bills.

Victoria became the first Australian state to legalise VAD at the end of November. The bill failed in NSW when it was defeated in the Upper House.

There were two major differences in what is now Victorian legislation and the NSW bill. Victorian law puts the age of patient consent at 18; the NSW bill had set it at 25. The Victorian bill was government-sponsored; in NSW it was sponsored by individual MPs from various parties and both Premier Gladys Berejiklian and Opposition Leader Luke Foley said they would vote against it.

Preamble to the NSW Bill

A person (the patient) may make a request of a medical practitioner who is not a relative of the patient (the primary medical practitioner) for assistance if he or she meets certain eligibility criteria. The patient must be at least 25 years of age and ordinarily resident in New South Wales. The patient must also be suffering from a terminal illness which, in reasonable medical judgement, is likely to result in the death of the patient within 12 months, and must be experiencing severe pain, suffering or physical incapacity to an extent unacceptable to the patient. 

There have been more than 28 assisted dying bills before Australian state parliaments in the last 20 years, all of them until now private members’ bills – and all of them were voted down. 

Previously the only bill to become law was the Northern Territory Rights of the Terminally Ill Act, passed by Marshall Perron’s Government in 1995, but it was overturned by the Federal Government in 1997.    

First-hand experience

In almost all instances, proponents of VAD have been people with first-hand experience of terminal illness and prolonged palliation.

Opponents of VAD have generally argued against it on religious grounds, call it ‘euthanasia’ and have rarely addressed the voluntary element of the debate.    

Experience can be an eye-opener. For example, Victorian Premier Daniel Andrews reversed his attitude to assisted dying after witnessing the ordeal of his father’s death from cancer.

The Nationals MLC Trevor Khan made an emotional appeal when he introduced the NSW bill:

“Too many of us have watched or cared for a loved one with a debilitating illness and seen them die a horrible and undignified death.”

He cited the case of a 53-year old woman, Annie Gabrielides, a victim of motor neurone disease, whom he described as being trapped inside her body with no control over her hands or even her breathing, with the same intellect she’d always had but unable to feed herself, toilet herself or clean herself.

“[If the bill became law] “terminally ill people at the final stages of their life, like Annie Gabrielides, will be able to die on their own terms at a time and place of their own choosing,” Mr Khan said.  

The Victorian legislation was based on a report by a panel chaired by former Head of the Australian Medical Association in NSW, Professor Brian Owler. Professor Owler told the National Press Club in October:

“The practice of voluntary assisted dying, which is primarily about the relief of suffering when practised within an established legal framework, is wholly consistent with good medical practice and upholds the fundamental objectives of being a doctor.”

He agreed many of the people urging legalisation had personal experience of loved ones dying ugly, agonising deaths.

“People in such examples often died of cancer-related illnesses. They experienced excruciating bone pain or neuropathic pain resistant to medication.”

He said others were going through chronic organ failure, such as respiratory shut-down which was like slow suffocation or drowning.

National survey supports VAD

In September 2017, a national survey conducted by Essential Research in behalf of Dying with Dignity NSW polled 1032 people nationwide and found that 73 per cent favoured assisted dying. Fifteen per cent opposed it and 12 per cent were undecided. In the 55 and over age-group, 81 per cent were in favour and only 10 per cent against.

This confirmed the findings of a 2012 survey of 1422 people which found 71 per cent of respondents in favour.    

Opponents say that legal assisted dying legislation, whatever the safeguards built in, could be watered down to permit the elimination of those deemed unworthy of life. They argue it would open the way for people impatient to get their inheritance money to sign away their parents’ lives. (Safeguard clauses included in the NSW Bill are shown at the end of this article.)


Assisted dying already happens

During the debate on the Victorian Bill last month, Premier Andrews made the point that assisted dying already happens but it remains hidden.

“Decisions are made each day on the hospital floor about who lives and who dies. That is a fact. This may be through withdrawal of treatment, or through sedation or intensified pain alleviation even if this might cause death,” he said.

He told Parliament the state coroner reported more than 50 deaths per year by suicide because of suffering caused by illness.

Another draft bill is expected to be reintroduced to the NSW Parliament before the next state election in March 2019.

NB: You may be interested in reading a related separate story in this issue of Work ‘n’ Care called ‘Assisted dying debate and people with disability’.

Proposed Safeguard Clauses

Clause 11 of the Proposed Act provides that the primary medical practitioner must not provide assistance if he or she knows that any financial or other advantage is likely to be gained by certain persons as a result of the death of the patient. 

Clause 12 makes it an offence for a person: (a) to give or promise any financial or other advantage (other than a reasonable payment for medical services) or (b) to cause or threaten to cause any disadvantage, to a primary medical practitioner or other person for assisting or refusing to assist, or for the purpose of compelling or persuading the practitioner or other person to assist or refuse to assist, in ending the patient’s life under the proposed Act. 

Clause 16 requires the patient to be examined by an independent psychiatrist or psychologist. The psychiatrist or psychologist must provide the primary and secondary medical practitioners (Clause 14 requires a second opinion) a report containing the results of the examination and an opinion indicating that the patient is of sound mind, that the patient’s decision-making capacity has not been adversely affected by his or her state of mind and that the patient’s decision to request assistance has been made freely, voluntarily and after due consideration. Ibid.