Health Law

QUESTION

In the past five years, all Australian States have enacted Voluntary Assisted Dying (VAD) legislation. The state of Victoria was the first to pass legislation permitting VAD in 2017 with the legislation heralded as the “safest and most conservative in the world” during parliamentary debate and throughout its implementation. Other Australian states have since implemented VAD legislation based on the Victorian model.

Consider whether variations in VAD laws in different states and territories influence the practice and implementation of VAD in Australia. Also, critically discuss whether there is a need for law reform that moves towards uniform VAD legislation across all states and territories. In your answer consider any relevant ethical and social implications.

SOLUTION

Equality to Die: The Cross-Jurisdictional Lens on Self-Administered Death

Voluntary Assisted Dying (VAD) allows an individual to choose the time and manner of their death legally. The main reason for a ban on VAD in most legislations is the settled law on criminalisation of suicide and its abetment. In Vacco, Attorney General of New York v. Quill[1], it was held that assisting suicide in any form is criminal while removing life assisting systems is legal. Similar reasoning and distinction have been drawn in many jurisdictions globally[2] , which is limiting and baseless as it ignores the rights of the terminally ill suffering patients.

 

Overview of VAD in Victoria-

Victoria was the first State to pass legislation allowing VAD in Australia, called the Voluntary Assisted Dying Act of 2017.[3]Passed in 2017, it came into force on June 19, 2019. It does not establish VAD as a "right" but legitimises its use in some instances. The gist of the law is that it allows people having decision-making capacity who are suffering from a terminal illness and have less than six months to live (except in the case of neurodegenerative ailments where the period is 12 months) to access VAD[4]. Many safeguards are in place to ensure the process is safe, voluntary, and per the legislation's provisions.[5] Victorian legislation is a very restricted system to administer death compared to other States which have enacted broader legislation on euthanasia. Under the legislation of Victoria, only self-administration of life-ending drugs by terminally ill patients is permitted[6]. No healthcare professional should and can assist the administration of the life-ending process. Even the determination of whether a case merits VAD is to be made by two independent doctors separately.[7]

[1] Vacco, Attorney General of New York v. Quill (1997) 521 U.S. 793.

[2] See Sampson v State of Alaska (2001) 31 P.3d 88; Sanderson v People of Colorado (2000) 12 P.3d 851.

[3] The Voluntary Assisted Dying Act 2017 (Vic).

[4] Ibid, s 9(1)(d).

[5] Ibid, s 34, s 41

[6] Ibid, s 8.

[7] Ibid, s 10.

 

The Voluntary Assisted Dying Act 2017 is controversial and has seen polarised debate since its inception. On the one hand, is the argument that personal autonomy should dictate a person's life, including death, and in contrast is the sanctity attached to human life. Many rulings are in favour of the status quo of the sanctity of life being paramount as in R (Nicklinson) v. Ministry of Justice[8]. Courts in many jurisdictions have deemed the legislature to be the right body to resolve this debate through legislation, like in R Conway v. Secretary of State for Justice[9], wherein it was held that the Parliament is better equipped to make the relevant assessments regarding the impact of such laws than the court.

 

This legislation in Australia culminated as a result of intense policy advocacy. In 2015, the Victorian Legislative Council started an inquiry examining the issues of VAD. This inquiry was prompted by the Council's recognition of the need to provide terminally ill Victorians with greater autonomy over how they wanted their lives to end. After several debates and amendments, the legislation finally came into existence after a vote in Victoria's Legislative Assembly, where it received 47 votes assenting to it and 37 against it.[10]

[8] R (Nicklinson) v. Ministry of Justice [2014] UKSC 38.

[9] R Conway v. Secretary of State for Justice [2015] 6 WLUK 707.

[10] Eliana Close, Lindy Willmott, Ben P White, ‘Regulating voluntary assisted dying practice: A policy analysis’ (2021) 125(11) Victoria, Australia Health Policy,1463-1466.

 

The act has seen a placid response in Victoria since its enactment. According to the latest data from the Victorian Department of Health and Human Services, in approximately 12 months post the act's enactment, 124 terminally ill Victorians utilised this law to end their lives. In all, 272 people applied for a permit for VAD during this period, while only 231 permits were issued. A total of 350 terminally ill patients were assessed for eligibility. In 134 cases during this period, the application for a permit was withdrawn by a doctor, or the patient died before obtaining the permit. Several cross-sectional observations are also evident from this data from the State of Victoria. It was seen that the average age of patients opting for VAD as per the legislation was 71 years. Moreover, 78 % of these patients were at the terminal stage of cancer, while in 15% of the cases, the patients suffered from a neurodegenerative disease. The use of the legislation saw a significant uptick in metropolitan areas of Victoria, with 60% of total cases being from here and a much lesser number of 38% being from regional or rural Victoria.[11]

 

VAD in Victoria Versus the Rest of Australia-

There are fundamental differences and similarities between Victoria's VAD legislation and other Australian States. These are:

1. Life Expectancy Requirement- Victoria has strict eligibility criteria for the applicability of the Voluntary Assisted Dying Legislation, 2017. It applies to people diagnosed with an incurable, advanced, progressive disease, illness, or medical condition, causing death within six months or twelve months for neurodegenerative disease. In Tasmania, South Australia, West Australia, and New South Wales, the period of expected death is the same as in Victoria.[12] In Queensland, the legislation does not require a different life expectancy requirement for neurodegenerative diseases and puts a blanket time of twelve months for death to occur in all cases.[13] Tasmania also permits a patient-centric exception for the applicability of its VAD legislation. Upon the commission's satisfaction that the prognosis of a patient's medical condition is such that the life expectancy requirement condition should not apply, the commission has the power to carve out that exception in Tasmania.[14] In this respect, Tasmania allows a more comprehensive assessment of a patient's condition for VAD and is less arbitrary and blanket than other Australian States. Regarding the eligibility requirements, all States of Australia have almost similar criteria. VAD legislation in all States of Australia is restricted to people above 18.[15]
2. Residency Status- Residency status is restricted to people who hold Australian citizenship or permanent residency in Australia. Additionally, all State legislations on VAD in Australia require that the patient must have resided in that particular State for at least twelve months before making the first request for VAD.[16] Despite the overwhelming similarities, the States of Tasmania, Queensland, and New South Wales have greater flexibility concerning residency requirements. In these three States, people who do not have permanent Australian citizenship or residency can also apply for VAD if they can show that they have resided in Australia for at least three continuous years before making the first request.[17] Queensland and New South Wales also permit an exemption from the state residency requirements if people can show that they have a substantial connection to the State and when "there are compassionate grounds for granting the exemption."[18]
3. Underlying Medical Condition- The definition of Underlying Medical Condition also has differences across State jurisdictions. These differences manifest in varied applications of VAD across Australia. Use and exclusion of different terms from the definitions result in a separate list of medical conditions permitted for VAD in these jurisdictions. For instance, in Victoria and South Australia, the term "incurable" is used to define an underlying medical condition, and in Tasmania, an even narrower "irreversible incurability" is used.[19]
4. Assessment Process- In Victoria, two medical practitioners must assess the patient's eligibility for VAD. Victoria restricts the eligibility of these medical professionals to only those medical practitioners who hold a fellowship with a specialist medical college or to a medical practitioner who is vocationally registered. Another requirement in Victoria is that such medical practitioners should have practiced for more than five years. They should also have expertise in the medical condition likely to cause a patient's death.[20] While the requirements in South Australia and Tasmania are slightly similar, the assessment process in other States of Australia is somewhat different. In Western Australia and Queensland, the legislators' view was that five years of practice would restrict the number of medical practitioners available for assessment. Therefore, the eligibility requirements for medical practitioners in these States are less stringent. New South Wales, on the other hand does not prescribe eligibility requirements for the doctor who handles the first request but has strict eligibility requirements for the second doctor who approves the patient. [21] In State v. Chabot[22] of Netherlands, since the prescription of assisted suicide was made on a biased and unsubstantiated basis by the doctor, the court strongly prescribed rules for second opinions after that.
5. Safeguards- All States of Australia have slightly different safeguards to ensure that the administration and prescription of VAD are voluntary and consider the best interests of terminally ill patients. Victorian law is restrictive and safeguards vulnerable patients from making wrong, hasty, misrepresented, or unduly influenced choices regarding VAD. One of the safeguards in place is that Victoria law requires the patient to make three explicit requests for VAD before the procedure can be carried out. For instance, in other states of Australia, the Tasmanian law proposed Queensland legislation only requires two explicit requests. Another safeguard is the duration of the cooling period before a request is made by the patient and VAD is administered. Victorian law requires a cooling-off period of at least nine days between the patient's first request and the administration of the lethal medication.[23]Conversely, the Tasmanian law proposed Queensland legislation only requires a cooling-off period of 24 hours.[24] Victorian law is stricter than laws on assisted dying in other jurisdictions. For instance, in Carter v Canada[25], the Supreme Court of Canada struck down the prohibition on physician-assisted suicide in Canada. The safeguards chalked out by the court and the subsequent legislation in Canada are diluted on the number of medical practitioners required for prescription, cooling-off period etc.
6. Prescribing and Administering Process- In Victoria and South Australia, medical practitioners, nurses, and other registered health practitioners are not allowed to start discussions on VAD with a person. Health professionals and personal care workers may provide such information only if the patient requests it.[26] While in Western Australia, Tasmania, Queensland, and New South Wales, a medical practitioner can initiate discussions on VAD but must also provide information about treatment and other care. Nurse practitioners in Western Australia and Queensland can also provide such information.[27] In Tasmania, all registered health practitioners other than a medical practitioner are allowed to initiate discussions on VAD but must inform the person that a medical practitioner is the best person to discuss the issue with.[28] While In New South Wales, all registered health practitioners other than a medical practitioner, other health professionals, and personal care workers can initiate such discussions but must inform the person that they have the option to go for palliative care and other treatments and must recommend a session with a medical practitioner to understand these treatments.
7. Legal Protection- The VAD legislation of different states in Australia also has specific differences in the obligations they prescribe for health professionals in assessing, defining, and in any other way, dealing with cases of VAD. The obligations of institutions such as registered societies also vary with States.[29]

[11] ‘Polling – Voluntary Assisted Dying and the Territories.' (Apr, 2021) https://australiainstitute.org.au/wp-content/uploads/2021/04/Polling-April-2021-Voluntary-assisted-dying-and-the-territories-Web.pdf.

[12] The Voluntary Assisted Dying Act 2021 (SA); Voluntary Assisted Dying Act 2022 (NSW); The End of Life Choices )(Voluntary Assisted Dying) Act 2021 (Tas); The Voluntary Assisted Dying Act 2018 (WA); The Voluntary Assisted Dying Act 2017 (Vic)

[13] The Voluntary Assisted Dying Act 2021 (Qld) s 10(1).

[14] The End of Life Choices (VAD) Act 2021 (Tas) s 6(3), s 6(4).

[15] The Voluntary Assisted Dying Act 2021 (Qld); The Voluntary Assisted Dying Act 2021 (SA); Voluntary Assisted Dying Act 2022 (NSW); The End of Life Choices (Voluntary Assisted Dying) Act 2021 (Tas); The Voluntary Assisted Dying Act 2018 (WA); The Voluntary Assisted Dying Act 2017 (Vic).

[16] The Voluntary Assisted Dying Act 2021 (Qld); The Voluntary Assisted Dying Act 2021 (SA); Voluntary Assisted Dying Act 2022 (NSW); The End of Life Choices (Voluntary Assisted Dying) Act 2021 (Tas); The Voluntary Assisted Dying Act 2018 (WA); The Voluntary Assisted Dying Act 2017 (Vic).

[17] The End of Life Choices (VAD) Act 2021 (Tas); The Voluntary Assisted Dying Act 2021 (Qld); Voluntary Assisted Dying Act 2022 (NSW).

[18] Voluntary Assisted Dying Act 2022 (NSW) s 17; The Voluntary Assisted Dying Act 2021 (Qld) s 12(2)(b).

[19] The Voluntary Assisted Dying Act 2017 (Vic) s 9; The Voluntary Assisted Dying Act 2021 (SA); The End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) s 6(1).

[20] The Voluntary Assisted Dying Act 2017 (Vic) s 10.

[21] Voluntary Assisted Dying Act 2022 (NSW) s 18.

[22] State v. Chabot (1994) 20(3):815-20.

[23] The Voluntary Assisted Dying Act 2017 (Vic) s 38.

[24] The End of Life Choices (VAD) Act 2021 (Tas); The Voluntary Assisted Dying Act 2021 (Qld).

[25] Carter v Canada (2015) SCC 5.

[26] The Voluntary Assisted Dying Act 2017 (Vic); The Voluntary Assisted Dying Act 2021 (SA).

[27] The Voluntary Assisted Dying Act 2021 (Qld); The Voluntary Assisted Dying Act 2018 (WA).

[28] The End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) s 17.

[29] O'Connor, Margaret M et al., ‘Documenting the Process of Developing the Victorian Voluntary Assisted Dying Legislation’ (2018) 42 Australian Health Review 621.

 

Operational Issues with Varied Legislations- From a functional point of view, the differences in VAD legislation between states in Australia lead to different practices in terms of who is eligible, the process for obtaining assistance, the specific actions that healthcare providers are permitted to take, the medical conditions that are covered, etc. This leads to the service of VAD manifesting differently in different States.

 

The ease with which people can seek VAD and the level of participation from medical practitioners in each State is also different. It's worth noting that the legislation of VAD is a complex and sensitive issue, and it's essential to consider not only the quantum of people who access VAD in each State but also the broader implications of the laws on end-of-life care and the autonomy of individuals.

 

Uniform legislation will make it easier for patients and medical professionals to navigate the process of accessing VAD, as the requirements and procedures will be consistent across the country, not only for practising the service but also in terms of understanding the eligibility criteria one needs to meet to be able to prescribe and administer the service. Greater clarity on this end can help reduce barriers to access and improve the service's effectiveness.

 

Legal Issues with Varied Legislations - Legal issues emerge because of various legislations in Australia on VAD. A major legal issue with the current system of disparate legislation with strict residency requirements is the States discrimination between residents and non-residents. With a varied timeline of enactment of the act in different states, the problem becomes even more acute as residents of many states in Australia can't yet avail of VAD in Australia when some State residents can. Also, when people move interstate regularly or are border residents, they may struggle to meet the residency requirement of any State within the eligibility criteria. Another legal implication of having only State legislation on VAD is that in the absence of national legislation, the conflicting commonwealth laws take precedence over state laws.

 

There is uncertainty on how federal laws such as the Euthanasia Laws Act 1997 and some provisions of the Commonwealth Criminal Code interact with state legislation. The former prevents the State legislatures from legislating on some areas, while the latter criminalises any counselling, incitement, or abetment of suicide, making it a grey area for medical practitioners as to what guidance and counselling would be legal and what might be criminal.[30] Another legal issue is the different standards for conscientious objection to medical practitioners. Different standards subject them to different personal rights, thereby creating a discriminatory framework of rights for the people of Australia. Also, the lack of a robust mechanism for conscientious objections in some states impedes the rights of the medical practitioner to exercise his personal choice in abstaining from assisting the death of any patient. This law should have adequate provisions to allow doctors with a conscientious objection to avoid involvement in any matter they are uncomfortable with, following their personal beliefs and values.

 

Judicial Perspective-

Cases on this sensitive topic are varied and highly nuanced. The judicial perspective on the context at hand, can be understood with the following cases.

Firstly, in the British Case, R. v. Adams[31], Justice Devlin instructed the jury that there is no special defence justifying a doctor giving drugs that would shorten life, but continued, "if the first purpose of medicine, namely, restoration of health, can no longer be achieved, then the doctor can take necessary steps to reduce suffering even it may incidentally shorten life."

 

Whereas, in R v Croft[32], it was held that a person who participated in or supported another person's suicide while they were in attendance is guilty of murder in the second degree.

In this context, the judgement in R. v. Fretwell[33] may help the doctor if they comply with a patient's request by aiding him in committing suicide (for instance, by leaving extra pills with the knowledge or strong suspicion that they will be used for that reason). However, the more recent case, National Coal Board v. Gamble[34], partially calls into question this ruling.

[30] ‘Euthanasia, Human Rights and the Law.’ The Australian Human Rights Commission, (May 20, 1970), https://humanrights.gov.au/our-work/age-discrimination/publications/euthanasia-human-rights-and-law.

[31] R. v. Adams [1957] Crim LR 365.

[32] R v Croft [1944] 1 KB 295

[33] R. v. Fretwell [1862] Le. & Ca. 161.

[34] National Coal Board v. Gamble [1959] 1 Q.B. 11.

 

This can be seen in Attorney-General v. Auckland Area Health Board[35], where the court allowed a request made by doctors who wanted to have their patient, who was in an irreversible vegetative condition, taken off life support.

 

Conversely, in Pretty v Director of Public Prosecutions, Diane Pretty[36], who had motor neuron disease, a paralysing, degenerative, and fatal condition, passed away on May 11, 2002, from natural causes. Her attempt to control when and how she died, with the help of her husband, was a resounding legal disaster. Her pleas before the English Divisional Court and the House of Lords, followed by the European Court of Human Rights regarding assisted suicide was rejected as it was against the norms under the European Convention on Human Rights.

 

In Brightwater Care Group v. Rossiter[37] , sometimes known as the "right to starve" case, Mr. Rossiter, a quadriplegic, was "unable to execute any basic human activities," including ingesting sustenance or fluids orally, refused treatment immediately rather than in advance. Mr. Rossiter had full mental capacity and wasn't in a vegetative or terminally ill state. He had "clearly and definitely" said that he did not want to keep receiving medical care that, if stopped, would surely result in his demise. The court ruled that Brightwater could not continue providing therapy to Rossiter if he still desired to stop after receiving adequate information about the effects of fasting. Hence, the doctors were not held criminally liable.

 

A few weeks before Rossiter's ruling, the case Hunter and New England Health Service v. A[38] (the "Hunter" case) were resolved. Here, it was determined that a man had a right to legitimately object to receiving the dialysis that was keeping him alive. He had the mental capacity to make a choice, the New South Wales Supreme Court determined which makes him eligible to do so.

[35] Attorney-General v. Auckland Area Health Board [1993] 1 NZLR 235.

[36] Pretty v. The Director of Public Prosecutions [2001] 3 WLR 1598.

[37] Brightwater Care Group (Inc) v Rossiter [2009] WASC 229.

[38] Hunter and New England Area Health Service v A [2009] NSWSC 761.

 

In Australian Capital Territory v JT[39]Chief Justice Higgins's reasoning closely reflects the long-held belief that a human rights-consistent framework for the withdrawal or withholding of medical treatment must always operate from the presumption in favour of life-sustaining treatment, except situations where such a presumption would conflict with the competent patient's right to refuse treatment.

 

In H Limited v J[40], it was held that, a person may lawfully decline food and medication to end their life. For this course of action to be considered legal, the person must give their enduring guardian a valid directive, written out in the approved form, clearly outlining their intentions and acknowledging the consequences. The directive must also state that the guardian should act following the person's wishes, releasing them from any obligation to act differently.

 

In R v Mathews[41], a 66-year-old man was given a two-year sentence with probation in 2011 for aiding in the drug overdose and subsequent suffocation of his long-time companion, who was 78 years old. Before her death, the deceased indicated her desire to die in a suicide note because she could not move due to excruciating pain from a spinal ailment. The man was extraordinarily upfront and truthful with the authorities, freely acknowledging his role in her death, which reduced his sentence.

 

The case Haas v Switzerland[42], raised the question of whether the State should have ensured that a sick man wishing to commit suicide could obtain a lethal substance (sodium pentobarbital) without a prescription, by way of derogation from the law, to be able to end his life without pain and with no risk of failure," The Court responded in the negative.

 

Similar results were seen in Koch v Germany[43]. Here, the applicant was the widower of a woman who, had been pretty much entirely paralysed and required round-the-clock care. She asked the Federal Institute for Drugs and Medical Devices to give her a deadly dose of a particular chemical because she wanted to end her life since she thought it was disrespectful. Both the Institute and the Court rejected the request.

[39] Australian Capital Territory v JT [2009] ACTSC 105.

[40] H Limited v J [2010] SASC 176.

[41] R v Mathews [2011] NSWSC 339.

[42] Haas v Switzerland [2011] (European Court of Human Rights, Chamber, Application No 31322/07, 20 January 2011).

[43] Koch v Germany [2012] ECHR 1621

 

Whereas in Lambert v France[44], an opposite stance was seen. In 2008, Vincent Lambert was injured in a car accident that left him tetraplegic and persistent vegetative. The physicians, Vincent's wife, and their parents decided to stop assisting in 2013. The applicants, Vincent's siblings, were against the same by invoking Article 2 of the European Convention on Human Rights. It was decided that withholding support did not violate Article 2 of the ECHR, which talked about the right to life.

Hence, from all of these cases, it is clear that there is no Uniform Law concerning this concept. Such a sensitive matter, requires a consistent legal stance to avoid ambiguities and misinterpretation of law.

 

Moving Towards a Uniform Law- Legislation on VAD should be consistent across Australia and ensure robust standards, protections, and transparent safeguards. An oversight mechanism should also be implemented to ensure the system's integrity, with the larger objective of keeping the community safe by protecting individual help. Regulations introduced must also be appropriately monitored by the government at regular intervals and amended for better outcomes, as and when required. Patients and doctors must be protected and safeguarded from improper coercion, and such actions must be strictly penalised. 

 

There should be consistent provisions across the country to ensure that the laws do not compel a doctor to take active steps to end a patient's life, whether by giving recommendations, administering, or providing approval for the administration of medical intervention. From the perspective of a terminally ill patient or any citizen who wants to exercise autonomy in his life, lifestyle, and death, settling in a jurisdiction that allows maximum personal freedom might become a factor. To avoid such forum shopping of jurisdictions to live in by citizens, Australia needs to develop a national policy on subjects that concern the fundamental rights of its citizens.

[44] Lambert v France [2015] ECHR 545

The national framework on VAD in Australia must ensure that it incorporates the good practices adopted by all the State legislatures on VAD within Australia, as the state laws on this subject are pretty extensive and detailed. Apart from this, a national uniform framework on VAD should also draw safeguards and best practices from the more evolved legislations of the world. As of 2020, eighteen jurisdictions had legalised some form of assisted dying methods, increasing the number of people with access to some or the other form of assisted suicide (self-administered or physician-administered) to over 200 million.[45] European nations are ahead of others in using some or the other form of VAD. The practice is most common in countries like Belgium, the Netherlands, and Switzerland, as well as in some US states with age-old physician-assisted dying laws, such as Oregon and Washington.[46]

 

The VAD legislations in Australia are already more detailed than most other jurisdictions. The Victorian law on the subject of 2017 was reasonably extensive, compared to its US, Canadian, and European counterparts. Then it was supplemented by even more extensive legislations, which was enacted later in Western Australia and other jurisdictions.[47] But on some factors, the Australian States still adopt a very formulaic approach which often doesn't ensure that the nuances of the real-life utility of the legislation are matched. For instance, all the State laws of Australia have an age eligibility requirement of eighteen years or above. A fixed number is seldom reflective of the real-life need cases that might crave the application of the relief of VAD. Unlike in Australia, the legislations of Belgium and Switzerland do not specify a number to assess the maturity of individuals but rather delegate the assessment of individuals' maturity to the administration's subjective judgment.[48] This leaves room to cater to exceptional cases that might merit assisted death due to their specifically grievous nature. Even in the Netherlands, Dutch law permits medical practitioners to perform assisted dying on children between twelve to eighteen years, with parental consent.[49] Such exceptions might also be incorporated into Australian laws to give them more flexibility.

[45] Sarah Mroz, et al. ‘Assisted Dying around the World: A Status Quaestionis.’ (2020) Annals of Palliative Medicine, AME Publishing Company, https://apm.amegroups.com/article/view/50986/html.

[46] Roehr, Bob. ‘Assisted Dying around the World’ BMJ, (2021), https://doi.org/10.1136/bmj.n2200.

[47] Lewis, Penney. ‘Assisted Dying: What Do the Laws in Different Countries Say?’ BBC News, BBC, (October 6, 2015), https://www.bbc.com/news/world-34445715.

[48] Hempton, Courtney. ‘The Constitution of ‘Choice’: Voluntary Assisted Dying in the Australian State of Victoria.’ (2022) Voluntary Assisted Dying: Law? Health? Justice? 9–29. https://doi.org/10.22459/vad.2022.01.

 

Conclusion

The ethical and societal necessity of voluntary assisted dying and other forms of euthanasia has been evident for many decades. The laws legalising assisted suicide in Australian States are recent, though. Before this, any action in the nature of assisting or administering death in Australia was strictly punishable. For instance, in R v Carter[50], the Supreme Court of Queensland awarded a sentence of 2-year imprisonment to a friend who supplied heroin to a suicidal friend who committed suicide by overdosing on it. A 3-years imprisonment was sentenced for obtaining Nembutal illegally to assist a social acquaintance with a medical condition to commit suicide in R v Nielsen[51]. Reiterating the ruling in Sang-Hoon Ahn v. Hestrin of Court of Appeal[52] of the State of California, every person has the right to make decisions about their own body and life, including the right to end their suffering when it becomes unbearable. For individuals facing terminal illnesses or incurable conditions, ending their suffering through assisted dying can be a compassionate and humane alternative to prolonging their suffering through invasive and ineffective treatments. Even for the patient's families, the option of voluntary assisted dying can serve as a source of comfort by knowing that they will not have to suffer indefinitely.

 

Legalising VAD prevents patients from resorting to desperate and dangerous measures to end their suffering, like attempting suicide. Providing a safe, legal, and medically-supervised option for the assisted dying can ensure that individuals can die with dignity without resorting to harmful methods. Moreover, allowing voluntary assisted dying can be regulated and restricted to those suffering unbearably with a prognosis of death. Those with a treatable condition or unrealistic expectations of recovery should be protected from any such provision.

[49] Onwuteaka‐Philipsen, Bregje, et al. Regulating Voluntary Assisted Dying in Australia: Some Insights from the Netherlands.’ (2019), 211(10) Medical Journal of Australia, 438 https://doi.org/10.5694/mja2.5031.

[50] R v Carter [2003] QCA 515.

[51] R v Nielsen [2012] QSC 29.

[52] Sang-Hoon Ahn v. Hestrin of Court of Appeal (2020) Case No. E073530, Court of Appeal of the State of California.

 

In conclusion, social and ethical considerations require that VAD be permitted because it respects individual autonomy and dignity, acknowledges the limits of medical treatments, promotes death with dignity, serves as a source of comfort for patients and their families, prevents desperate measures, and with proper regulation, can be a safe and compassionate option for those facing terminal illness or incurable conditions.

 

Bibliography

A. Articles / Books / Reports

'Euthanasia, Human Rights and the Law.' The Australian Human Rights Commission, May 20, 1970, .

Eliana Close, Lindy Willmott, Ben P White, 'Regulating voluntary assisted dying practice: A policy analysis' (2021) 125(11) Victoria, Australia Health Policy,1463-1466.

Hempton, Courtney. 'The Constitution of 'Choice': Voluntary Assisted Dying in the Australian State of Victoria.' (2022) Voluntary Assisted Dying: Law? Health? Justice? 9–29. .

Lewis, Penney. 'Assisted Dying: What Do the Laws in Different Countries Say?' BBC News, BBC, October 6, 2015, .

McLaren, Cameron J, and Greg Mewett. 'Update on Voluntary Assisted Dying in Australia' (2021), 215(3) Medical Journal of Australia 115–116, .

Mroz, Sarah, et al. 'Assisted Dying around the World: A Status Quaestionis.' (2020) Annals of Palliative Medicine, AME Publishing Company, .

O'Connor, Margaret M et al., 'Documenting the Process of Developing the Victorian Voluntary Assisted Dying Legislation' (2018) 42 Australian Health Review 621.

Onwuteaka‐Philipsen, Bregje, et al. Regulating Voluntary Assisted Dying in Australia: Some Insights from the Netherlands.' (2019), 211(10) Medical Journal of Australia, 438 .

'Polling – Voluntary Assisted Dying and the Territories.' .

Roehr, Bob. 'Assisted Dying around the World' BMJ, 2021, .

Sarah Mroz, et al. 'Assisted Dying around the World: A Status Quaestionis.' (2020) Annals of Palliative Medicine, AME Publishing Company, https://apm.amegroups.com/article/view/50986/html.

B. Cases

Attorney-General v. Auckland Area Health Board [1993] 1 NZLR 235

Australian Capital Territory v JT [2009] ACTSC 105

Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

Carter v Canada, [2015] SCC 5

H Limited v J [2010] SASC 176

Haas v Switzerland [2011] (European Court of Human Rights, Chamber, Application No 31322/07, January 20 2011)

Hunter and New England Area Health Service v A [2009] NSWSC 761

Koch v Germany [2012] ECHR 1621

Lambert v France [2015] ECHR 545

National Coal Board v. Gamble [1959] 1 Q.B. 11

Pretty v. The Director of Public Prosecutions [2001] 3 WLR 1598

R. v. Adams [1957] Crim LR 365

R (Nicklinson) v. Ministry of Justice [2014] UKSC 38

R Conway v. Secretary of State for Justice [2015] 6 WLUK 707

R v Carter [2003] QCA 515

R v Croft [1944] 1 KB 295

R. v. Fretwell [1862] Le. & Ca. 161

R v Mathews [2011] NSWSC 339

R v Nielsen [2012] QSC 29

Sampson v State of Alaska (2001) 31 P.3d 88

Sanderson v People of Colorado (2000) 12 P.3d 851

Sang-Hoon Ahn v. Hestrin of Court of Appeal [2020] Case No. E073530, Court of Appeal of the State of California

State v. Chabot [1994] 20(3):815-20

Vacco, Attorney General of New York v. Quill (1997) 521 U.S. 793

C. Legislation

The End of Life Choices (VAD) Act 2021 (Tas)

The Voluntary Assisted Dying Act 2021 (Qld)

The Voluntary Assisted Dying Act 2021 (SA)

The Voluntary Assisted Dying Act 2017 (Vic)

The Voluntary Assisted Dying Act 2018 (WA)

Voluntary Assisted Dying Act 2022 (NSW)