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Western Australia passes voluntary assisted dying laws: Comparing the Victorian and Western Australian schemes

Michael Gorton AM, Felicity Iredale and Erika Tomazi

Western Australia (WA) has become the second state in Australia to legalise voluntary assisted dying (VAD) after Victoria. The Voluntary Assisted Dying Act 2019 (WA) (Act) provides for eligible individuals (in consultation with specialised medical practitioners) to legally choose the manner and timing of their death (Scheme). The Act also establishes a Voluntary Assisted Dying Board (Board) to monitor the Scheme.

The Bill passed the upper house on 5 December 2019, with the lower house approving more than 50 amendments on 10 December 2019. The amendments include a reporting provision to the Board in circumstances where a patient suffers an adverse reaction to a VAD substance, and the publication of a “standard” outlining how individuals can practically access the Scheme.

Russell Kennedy has provided advice, assistance and training to a number Victorian organisations operating in the health and aged care sectors on the implementation of VAD in Victoria. Given the similarities between the WA and Victorian Schemes, we are well placed to advise WA organisations on their obligations given our experience with the Victorian scheme.

The Minister for Health, Roger Cook, noted that the introduction of VAD in Victoria (in effect since June 2019) presented an opportunity to examine the Victorian Scheme, and develop an approach that addresses the needs of WA. The Act therefore has some minor differences (detailed below), but otherwise maintains consistency with the Victorian legislation.

The Scheme is expected to come into operation in mid-2021.

How does the Scheme work?

First request

An individual seeking to access VAD must make a clear and unambiguous request to a medical practitioner (First Request). The medical practitioner must either accept or refuse the First Request within two business days. If the request is accepted, the medical practitioner becomes the Coordinating Practitioner (CP) for the patient.

First assessment

The CP must determine if the individual meets the eligibility criteria to access the Scheme (Criteria). An individual must be diagnosed with at least one disease, illness or medical condition that is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

Additionally, a medical practitioner is required to clinically determine that the disease, illness or medical condition:

  1. Is advanced, progressive and will cause death; and
  2. On the balance of probabilities, will cause death within a period of 6 months; or
  3. In the case of a disease, illness or medical condition that is neurodegenerative, within a period of 12 months.

The individual must also be:

  1. At least 18 years old;
  2. Acting voluntarily and with decision-making capacity;
  3. An Australian citizen or resident; and

A resident in WA for a period of at least 12 months at the time of making a First Request.

Determination

If a CP is satisfied that a patient meets all of the Criteria, understands all relevant clinical guidelines and the process of the Scheme, they must make a determination that the patient is eligible for access to VAD.

Consulting assessment

The patient is then referred to another medical practitioner for a consulting assessment. If the referral is accepted by the medical practitioner, they become the patients consulting practitioner, and follow a similar process under the First Assessment to determine if the individual is eligible for VAD.

Written declaration

If a patient is assessed as eligible for access to VAD by both their coordinating and consulting practitioners, they may progress their request by making a written declaration, certified by two witnesses, requesting access to the Scheme.

Final request

The patient may then make a final request to their CP for access to VAD. This request may only be made at least 9 days from when the First Request was made.The CP is then required to review all assessment documents and forms and certify that the request to access the Scheme has been made in accordance with the Act.

Administration decision

A patient may then decide that the administration of the VAD substance is to occur via self-administration (with a contact person appointed) or via practitioner administration. A practitioner may only administer a VAD substance if the CP advises that self-administration is inappropriate due to:

  1. The ability of the patient to self-administer;
  2. The patients concerns about self-administering the substance;
  3. The method for administering the substance that is suitable for the patient.

The VAD substance is then administered by either the CP or the individual in the presence of a witness.

What are the key differences between the Victorian and WA Acts?

Both jurisdictions follow a similar process to facilitate access to VAD; in conjunction with a Board to monitor and oversee the administration of the Scheme.

Accordingly, there are only small differences between the two jurisdictions: 

Process

Western Australia

Victoria

Access to VAD medication

An authorised supplier and authorised disposer (registered health practitioners who are authorised to deal with Schedule 4 and 8 poisons) can facilitate access.

A ‘Permit’ system is required for doctors to prescribe a VAD substance.

Administration of VAD substance

A practitioner may administer the substance if self-administration is inappropriate due to:

  1. The ability of the patient to self-administer;
  2. The patients concerns about self-administering the substance;
  3. The method for administering the substance that is suitable for the patient.

A practitioner will only administer the substance in circumstances where individual has lost the physical capacity to self-administer or digest the VAD substance.

 

If you require assistance understanding how the introduction of VAD may affect your organisation, or if you would like advice on compliance with the new VAD legislation, please contact Michael Gorton on (03) 9609 1505 or Felicity Iredale on (03) 8602 7254.

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