Opinion: Inconsistent VAD laws, language concerning

A universal language for VAD in Australia would provide clarity and avoid legal issues, says an ethics and biolegality expert at UNSW Law & Justice.

All Australian states now have voluntary assisted dying (VAD) laws — although some won’t come into effect until late 2023 — and whilst this is welcomed by VAD advocates, many are concerned about discrepancies and inconsistencies in the language and laws between states.

Marc De Leeuw, ethics and biolegality expert at UNSW Law & Justice expressed concern over inconsistent laws and language concerning VAD in Australia.

“The definition of what is an ‘irreversible medical condition’, what is ‘incurable’ and what is ‘progressive’ — these are all terms that need grappling with,” he said.

There are also inconsistencies between the guidelines for accessing VAD in each state. In Queensland, for example, disease must be expected to cause death within 12 months before VAD can be initiated, whilst in NSW, disease must be expected to cause death within six months, unless it is neurodegenerative — in which case the time frame is 12 months. The Australian Capital Territory and the Northern Territory do not yet have VAD laws.

In all states, in line with international norms, only the dying individual can request VAD and must have decision-making capacity throughout the process, but De Leeuw highlighted challenges with this ruling since some patients are on such strong medication at the end of life that they are unable to make decisions.

Dying while waiting for voluntary assisted dying

Advocates for the choice to engage in VAD agree that discrepancies in the time frames for access to VAD in Australia, among a host of other challenges, can lead to people dying in pain before the assisted death is achieved.

Shayne Higson, CEO of Dying with Dignity New South Wales, a voluntary assisted dying advocacy and support organisation, said she would welcome universal legal language with the implementation of VAD laws.

“In a perfect world, it would probably be easier for all concerned if all the Australian VAD laws shared the same terminology; however, we feel there are more important inconsistencies that perhaps could be rectified before the language,” she said.

Higson said the six-month bar for accessing VAD in some jurisdictions meant some people died before the process was resolved.

“This narrower window of opportunity for someone to request VAD and the complex and time-consuming assessment process has resulted in some applicants dying before they access VAD,” she said.

Doctors in short supply

Dying with Dignity said a shortage of doctors doing VAD training was restricting the number of doctors available to assess requests for VAD.

“It certainly has an effect on someone being able to access this compassionate, legal, end-of-life option. Dying with Dignity NSW see this as a challenge that we need to address,” Higson said.

“While we support a medical practitioner’s right to conscientiously object to VAD, if not enough doctors agree to take part in the scheme it will create a burden for those doctors who are willing to help, and it will definitely make the process more difficult for the dying individual and their family.

Ideally a person’s own GP would become the coordinating medical practitioner, but this is not always possible. Higson stressed that health departments across Australia need to support the doctors who are willing to do the VAD training and participate in the scheme.

“DWD NSW will do everything we can to encourage more doctors to participate for the sake of their dying patients.”

On such a sensitive topic, language is key

As well as the need for consistent and precise language on the application of the laws, the selection of the right terminology was also important to encourage support in the public for VAD, De Leeuw said.

Different terms, such as ‘euthanasia’ or ‘medically assisted dying’, could meet different levels of acceptance among people who were comfortable with one term but uncomfortable with another.

“You could say in the end it’s not about language as such, but what the terms are used to represent,” De Leeuw said. “That is, do the terms used in NSW or Queensland legally represent the exact same VAD aim and criteria, or not?”

Legal issues and voluntary assisted dying

De Leeuw said legal issues could arise with the differences in the way VAD laws functioned across the states, especially if a patient is transferred from one state to another.

“To determine the legality of the VAD, the more consistency the law provides, the greater the chance of an equal outcome,” he said.

In Western Australia and Victoria, VAD laws are in operation. In Tasmania, VAD will commence in October, in South Australia and Queensland in January 2023, and in NSW in November 2023.

All states have similar processes for someone wishing to access VAD, including that the person must make three separate requests. They also have similar assessment requirements including that two assessments need to be carried out by two independent medical practitioners. All states require that VAD is applicable to people with incurable medical conditions who have, at most, fewer than 12 months to live.

Dementia and voluntary assisted dying

De Leeuw said it was a positive development that Australian jurisdictions had adopted these laws, given the fact that when dealing with end of life, palliative care alone was often not enough.

“It could be argued that the actual daily reality in hospitals before the changes to laws meant that doctors and nurses were forced to make decisions alongside family members regarding the palliative approach for patients which was not all that far removed from euthanasia,” he said.

He pointed to the fact that palliative care could not be provided to someone with dementia, and therefore options could be limited.

“Even though someone’s physical condition allows life, the person could essentially ‘disappear’ over the course of these degenerative illnesses.”

Unlike other states, in NSW someone with dementia can’t ask for VAD as a general rule because it’s treated in the same way as two other categories generally not accepted as viable reasons for VAD — mental illness and disability.

De Leeuw said this was another reason it would be best practice to have more universal language and criteria around VAD.

“I’m from the Netherlands originally and in the Netherlands there has been a similar type of law since 2002. It was heavily debated around dementia, which impacts the notion of capacity. You must have capacity to decide to go through with assisted dying and yet dementia affects your sense of capacity. You become mentally incapacitated but can live for many years in a state that some people would find unacceptable,” he said.

How VAD laws will best serve the dying

Dying with Dignity’s Higson said the organisation expected that laws would come into sync with one another since they have a mandated review between two and five years.

“Having VAD laws available is so important because although Australia provides some of the best palliative care in the world, not all end-of-life suffering can be alleviated. Dying individuals want the choice to end their own suffering if it becomes unbearable, and simply having that choice creates a palliative effect, even if a patient never uses it.”

Image credit: iStockphoto.com/LSOphoto

Originally published here.