Nineteen years after the Netherlands was the first country to legalise euthanasia, on 19 June 2019 Victoria became the first Australian state to allow euthanasia, known as “assisted dying". Victoria will soon be joined by Western Australia, which will have a similar programme in place by mid-2021, after the Western Australian Parliament passed legislation in December 2019.
In order to be eligible for assisted dying in Victoria, applicants must meet strict criteria. This is unsurprising given the controversial nature of voluntary euthanasia. As a result, each applicant must:
- Have an incurable and advanced disease, which is expected to cause death within six months, or twelve months for neurodegenerative conditions.
- Be experiencing suffering, which they deem as intolerable.
- Have the capacity to make the decision to die, and
- Be an adult Australian citizen or permanent resident who has lived in Victoria for the past twelve months.
In addition to these criteria, the Victorian legislation also requires that the Voluntary Assisted Dying Review Board issue a report to the Victorian Parliament every six months for the first two years of the programme. This is to ensure that the scheme is working well and in accordance with the law. The first report was recently issued and contained the following statistics:
- 136 people commenced the application process for assisted dying.
- 81 people were issued with a permit, that is, given approval.
- 52 people died from taking the prescribed medications.
- All cases thus far have been compliant with the law.
The finding of this report, that all cases thus far have been compliant, is very comforting. Due to the controversial and permanent nature of voluntary dying, it is imperative that strict and effective guidelines are established to ensure that the scheme runs smoothly and legally.
Despite this good news, the report also identified some areas of the scheme which could be improved. One of these is the current clash between Victorian and Commonwealth legislation. Commonwealth legislation makes it illegal for “suicide-related material” to be discussed over the telephone. As a result, Victorians are currently unable to receive any advice or assistance regarding voluntary dying over the phone, and thus access to information is severely limited.
Whilst this may not seem like a major hurdle, the first few months of the scheme have highlighted the difficulty faced by regional and rural applicants. Due to this Commonwealth law, Victorians from regional and rural areas are forced to travel hours to their GP in order to discuss their end of life plans. Were it not for the Commonwealth legislation, these applicants would be able to access the same information via telephone from the comfort of their own home. Having to travel so far is obviously very draining, particularly for someone with a terminal illness. The Board noted this as an issue, however, the Victorian Government unfortunately does not have the power to change this, and as the current Federal Government is not supportive of euthanasia, it is unlikely that the Commonwealth law will change any time soon.
Another potential issue identified by the Board is the length of the application process. One family member of a deceased individual noted that by the time their loved one’s application was approved and medication was delivered, the person was nearly unable to swallow the required pills to end their life. In accordance with the current framework, a person whose capacity has deteriorated to the extent that they can no longer swallow would find it difficult to end their own life, regardless of whether they had already received approval.
The Victorian legislation states that an applicant must administer the life-ending medication on their own, unless they are not physically able to do so, at which time a doctor may assist. The problem, however, is that a person may not have the ability to use their oesophageal muscles to swallow, even with assistance. Whilst the report is understanding of this issue, it does make it quite clear that as assisted dying is a very serious process, which requires careful consideration and planning, it cannot be rushed. As such, for the foreseeable future, the Victorian Government does not envision any changes to the scheme to cater for this potential problem.
The Victorian programme has largely been seen as a success by the medical community and general public. Consequently, one may think that it is only a matter of time before other Australian jurisdictions enact their own schemes. Surprisingly, this is not the case. Australia has an especially controversial relationship with assisted dying programmes. The Northern Territory had euthanasia for a brief period in 1995 and 1996, before it was banned by the Federal Government in 1997. As a result, the Northern Territory and ACT are unable to enact any euthanasia laws. Whilst the Federal Government does not have the power to extend this ban to the States, euthanasia is not on the cards in most States. Queensland is currently inquiring into the possibility of enacting a voluntary euthanasia programme, however, no other states currently have any real support from their respective parliaments to enact any other schemes.
Looking overseas, there are a handful of western countries that have enacted voluntary dying programmes, such as the Netherlands, Belgium, Colombia, Luxembourg, Canada, Switzerland, Germany and a number of US states, along with India, South Korea and Japan. All of these programmes are more or less the same, except for that of Belgium. Belgium stands out amongst these nations, as it is currently the only place in the world where it is legal for a child to be euthanised.
Belgian adults have had access to assisted dying since May 2002, however, in 2014, this access was extended to children. Under Belgian law, a child may be euthanised if they have a terminal illness, request euthanasia, their parents and medical team also approve of their decision, they are in significant pain and there is no treatment available. The first child to be euthanised under this law was in September 2016, and surprisingly, the law has not been very controversial in the country.
Moving forward, it seems inevitable that assisted dying will become legal in more jurisdictions, both at home and abroad. Whilst controversial, the world seems to be more understanding of one’s right to decide when to end their life when suffering from a terminal illness.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.