Victoria's model for assisted dying laws may be narrow enough to pass

After much speculation, the Victorian Government has announced it will put assisted dying legislation before parliament in the second half of next year. This follows the recent and narrow defeat of a bill in South Australia.

In making the announcement, Premier Daniel Andrews said:

Each and every member of my team will have a conscience vote and I am confident that each and every member of the parliament more broadly will search their conscience, search their values and search their personal experiences to make a decision that they ­believe is the right decision for the future.

What is interesting from a law reform perspective is the decision to include an implementation review step in the process. The premier revealed that an expert Ministerial Advisory Panel of clinical, legal, consumer, health administrator and palliative care experts will help draft the laws.

Media reports suggest the starting point for the review will be the recommendations of a parliamentary committee report “Inquiry into end of life choices”, released in June 2016. The model proposed by the committee includes a range of safeguards common to assisted dying bills in Australia.

The patient must be an adult and mentally capable of making their own decisions when they make an informed and voluntary request for assistance to die. This request must be repeated (three times in this model), and enduring in that it persists over time.

The patient must have a serious and incurable condition that is causing enduring and unbearable suffering that can’t be relieved. Two doctors must be involved in the process, with a psychiatrist additionally involved in cases where mental capacity is in question.

The model recommended by the parliamentary committee is also narrow in scope. First, it is a physician-assisted dying model. This means the law would focus on permitting the prescription of lethal medication, which is then taken by the patient themselves, rather than being directly administered to the patient by the doctor, as would be the case under a voluntary euthanasia model.

This is different from almost all the other Australian bills, including the recent South Australian one, which would have permitted voluntary euthanasia where death occurs under the direct supervision of the doctor. There is a limited exception where voluntary euthanasia would be allowed under the Victorian model, and that is when a patient is physically unable to take the medication themselves.

Further reading: South Australia’s reasons for voting down euthanasia go against the evidence

A second way in which the recommended model is narrow is that it is limited to patients “at the end of life”. The parliamentary committee report clarifies this as being in the “final weeks or months of life”. Although the precise meaning of these words can be debated, the intent is that assistance to die is limited to when death is expected in the foreseeable future.

It is narrower than many other Australian bills as it confines the law to a group already close to death. Other bills have, for example, required a patient have a terminal illness but not stipulated a precise period within which death must be predicted to occur.

Reports suggest almost half of the members of Victoria’s Legislative Assembly have stated their support for reform. But would a bill pass?

There have been more than 50 bills dealing with assisted dying in Australian parliaments over the last two decades. Apart from a brief period in the Northern Territory, assisted dying remains unlawful. Legislation was widely tipped to pass in the South Australian parliament last month but fell short by one vote.

Reform in this area is tricky, and apparent consensus can dissolve very quickly. But building and maintaining consensus is more likely for a bill with a narrower focus and with these safeguards.

The inclusion of this further stage of review and deliberation by an expert ministerial advisory panel also makes it more likely reform will occur. One of the barriers to changing the law is parliament debating a bill that fails to consider important issues or turns out to give rise to unintended consequences.

This can be avoided through careful deliberation by experts from a range of disciplines who can iron out the “bugs” that may not be apparent at first glance.

One example of potentially unforeseen problems in the recommended model is the proposal the patient be “at the end of life”. How is this policy position best implemented? Options include specifying a concrete timeframe or taking a more qualitative approach such as that death is “reasonably foreseeable”.

Both can give rise to different problems in principle and in practice as demonstrated by international experience. We have seen this in Canada with reports a small group of people are starving themselves so they can be close to death which is then “reasonably foreseeable”. It is important these and other issues are carefully considered in the drafting of the Victorian bill.

Victoria stands a chance of becoming the first Australian jurisdiction in 20 years, and the first ever Australian state, to have an assisted dying law. But history has shown law reform in this area is especially contentious so we should not expect this bill to be any different.