Wed Nov 1

Voluntary assisted dying is finally being considered in the ACT. How would it differ from state laws?

Written by Ben White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of Technology

The first Australian Capital Territory voluntary assisted dying bill in more than 25 years was tabled in parliament yesterday.

This was possible after the Commonwealth lifted the ban ^[1] on territories making laws about assisted dying in December last year. This meant the ACT and Northern Territory could join the six Australian states which have now passed voluntary assisted dying laws.

As with all parliamentary debates about voluntary assisted dying in Australia, this will be a conscience vote. But what will ACT parliamentarians be voting on?

In some ways, the ACT bill reflects the Australian model ^[3]:

detailed eligibility criteria are reviewed by two independent and trained health practitioners
patients need to make three requests at various points
there is an oversight board scrutinising cases, along with offences, to protect patients
health practitioners’ conscientious objection is protected.

But ACT bill has three new features:

no specific timeframe until death
nurse practitioners can be involved in assessing eligibility
protections for patients in institutions that object to voluntary assisted dying.

No specific timeframe until death

Reflecting the national approach ^[4], voluntary assisted would be available for adults living in the ACT with decision-making capacity who seek this choice voluntarily and without coercion. They must also be suffering intolerably.

But discussion will no doubt focus on the fact that the ACT bill does not contain an expected timeframe until death.

Australian states have normally required an expected death within six months, with an extension to 12 months for neurodegenerative conditions. Queensland has 12 months for all conditions.

But in the ACT, the relevant criteria is silent on time to death and requires only that the condition is “advanced, progressive and expected to cause death”.

Reasons for this policy choice include that a timeframe is arbitrary, it exacerbates suffering for terminally ill patients and was not supported in public consultation.

This new feature must be seen in context. Voluntary assisted dying eligibility criteria work together ^[6] so all of them must be satisfied before a person can access voluntary assisted dying.

The ACT bill requires the person’s condition be “advanced” and this is defined to include requiring that the person is in the “last stages of life”. Because this criterion must be satisfied too, just having an illness that will cause death is not enough to access the service.

Our research has shown ^[7] that because eligibility criteria work together, removing the timeframe to death is unlikely to affect which conditions will allow people to access voluntary assisted dying.

The ACT change is unlikely to affect which conditions will be eligible for assisted dying. Shvets Production/Pexels ^[8]

Nurse practitioners can be involved in assessing eligibility

Australian voluntary assisted dying laws have to date required that both health practitioners assessing eligibility be doctors.

The ACT bill contemplates that one practitioner could be a nurse practitioner. When introducing the bill, Minister for Human Rights Tara Cheyne said nurse practitioners must have relevant experience and at least one year’s endorsement after qualifying before they can undertake that role.

Cheyne pointed to the ACT’s small health workforce ^[9]; and a key challenge ^[10] of existing state voluntary assisted dying systems has been finding sufficient numbers of practitioners to assist patients.

Protecting patient access in objecting institutions

A third key difference is how the ACT bill deals with institutions which may object to voluntary assisted dying, such as faith-based hospitals.

There is growing evidence ^[12] this is a problem in the first states to pass voluntary assisted dying laws like Victoria. Later states – South Australia, Queensland and New South Wales – have dealt with this issue specifically in their law.

Those states generally protect access for permanent residents in facilities, such as aged care residents, but offer less protection for non-permanent residents, such as a patient in a hospital.

The ACT has opted for a simpler approach that does not distinguish between permanent and non-permanent residents, giving stronger protection for the latter.

The default is that voluntary assisted dying can be accessed in facilities unless that is not reasonably practicable.

The ACT bill also regulates this more robustly by requiring institutions to develop minimum standards for how they will comply with these laws and creating offences for non-compliance.

What happens next?

The bill was referred to a parliamentary committee for further consideration. This happened for Australian state voluntary assisted dying laws and provides opportunity for reflection on the bill.

Some will object to these features in the ACT bill because they are different from the Australian model. Such objections also arose when states after Victoria made decisions that their law would be different.

But it is difficult to argue the ACT should blindly follow what other states have done. There is evidence that access to voluntary assisted dying under those laws is challenging ^[14] and local considerations may also mean different approaches are needed.

We anticipate robust consideration of the bill by the committee and then parliament. If passed, the usual 18-month implementation period is proposed which means ACT residents could have access by 2025.