Victoria passes Voluntary Assisted Dying bill, but how many will access the legislation?

• How language plays a role in the assisted dying debate

“Not more than 100 people a year” will take advantage of Victoria’s assisted dying legislation, says Monash medical Professor Paul Komesaroff, director of the Centre for the Study of Ethics in Medicine and Society. The most difficult cases will remain, he predicts.

These are “the people upstairs”; patients in the Alfred Hospital’s general medicine department, who have an average age of “around 80”.

“The people who are a bit cognitively impaired. The people who are scared. The people who have a degree of dementia. The people who have a psychological illness, and children, and so on. These are the difficult, complex ethical questions that this particular legislation will have no bearing on.”

Today, Victoria became the first state in the country to legalise assisted dying for the terminally ill, after MPs voted to give patients the right to request a lethal drug. It will give patients suffering intolerable pain the right to choose a doctor-assisted death from 2019.

After more than 100 hours of debate across both houses of Parliament, Lower House MPs ratified the bill, which will now go to the Governor for royal assent.

Last Wednesday, the voluntary assisted dying legislation passed Victoria's 40-member Upper House after a 28-hour marathon sitting, 22 votes to 18.

Professor David Copolov AO is Pro Vice-Chancellor of Monash University and a professor of psychiatry. He's a very strong supporter of, and advocate for, the voluntary assisted dying legislation, as passed by the Lower House, with its extensive requirements and 68 safeguards.

Some of these include that the person must be over the age of 18, of sound mind, and have lived in Victoria for at least 12 months. The patient must also administer the drug themselves, unless they are physically incapable of doing so.

Professor Copolov agrees with Professor Komesaroff that the number of Victorians likely to utilise assisted dying will be small.

“It might start small, perhaps even say 50 in the first year,” he says, but adds that he estimates that will likely rise to 200-300 after six years, based on data from Oregon and Washington State in America – jurisdictions with broadly comparable safeguards to those proposed in Victoria.

“These people represent a subset of a cohort, about 5 per cent, for whom even the best palliative care is simply unable to help,” he says.

He says the processes and safeguards in the proposed legislation balance individual rights and community concerns.

“It ensures the vulnerable will be protected and that access will be available only to those in genuine need, with clear decision-making capacity,” he says.

“It is worth noting that in Oregon – where comparable legislation has existed for 20 years and 1700 people have had recourse to voluntary assisted dying – there have been no documented cases where the safeguards have failed.”

“The proposed process includes safeguards, ensuring the vulnerable will be protected and that access will be available only to those in genuine need, with clear decision-making capacity.”

Professor Copolov understands community concerns surrounding the assessment of competence in people with mental illness, and agrees that it adds another layer of complexity to the issue.

But he says the framework around the proposed legislation addresses this by requiring that anyone requesting voluntary assisted dying be assessed by a psychiatrist if it’s likely that their request is influenced by mental illness.

“The Owler Panel [the ministerial panel chaired by Professor Brian Owler] further recommends that the requirement for expert psychiatric assessment should extend to those who are suspected of having a mental illness that may be influencing their decision to request voluntary assisted dying.”

Professor Komesaroff has been closely involved with the professional and parliamentary committees that contributed to the legislation. He says that despite his reservations about the new law, he supports the bill “because of the integrity of the process that has given rise to it”.

“The euthanasia debates that I have been involved in for all of my professional life have essentially been almost completely unproductive,” he explains. “They have represented polarised points of view, occupied by individuals who shout at each other, and who fail to listen or to hear what each other is saying.” Before the Andrews government tackled the issue in Victoria, about 25 bills attempting to introduce euthanasia provisions around Australia had failed.

Professor Komesaroff says the Victorian bill succeeded because the parliamentary committee responsible embarked on “a genuine, extended democratic consultation ... It has utilised the richest and strongest resources of our democratic traditions. And I don’t think we can hope for any more than that.

“So even though it is not what I advocated – this is an important conversation for us to have in our society. And we have to trust the way we make decisions. We have got to respect the fact that there are people who disagree with us, and they disagree strongly.”

His own preference was for “a minimalist” legislative solution to amend the Victorian Crimes Act. This would protect doctors from being charged with homicide or manslaughter if they administered a drug that hastened the death of a patient with a terminal disease if (a) the doctor reasonably believed the drug was necessary to relieve pain and suffering, and (b) the drug was prescribed with this intention.

“The principle that exists – and that has actually existed in English common law since the late 1950s – is the one called the principle of ‘double effect’, which is a medieval Catholic doctrine, that goes back to Sir Thomas Aquinas, according to which one can undertake certain actions for a beneficent purpose, even when there are foreseeable negative consequences,” he explains. The principle has never been tested in Australia.

But doctors often venture into “double effect” territory, and not only when treating dying patients, he says.

“We take calculated risks to cure people of certain illnesses or to treat certain medical conditions, knowing that there can be potentially adverse effects, and we are prepared to take that risk.”

In contrast to Professor Komesaroff’s preference for a minimalist legislative solution, Professor Copolov is strongly in favour of the detailed and extensive requirements and safeguards as specified in the voluntary assisted dying bill.

“The proposed process includes safeguards, ensuring the vulnerable will be protected and that access will be available only to those in genuine need, with clear decision-making capacity.”

The Victorian government has agreed to make the statutory amendment to the Victorian Crimes Act that Professor Komesaroff is in favour of to protect doctors, which will be separate from the assisted dying legislation.

Professor Komesaroff predicts most dying patients will continue to be treated in the same way as they were before Victoria’s historic bill was passed.

The group of people who may access the assisted dying legislation are the “relatively small proportion of people” who are “in absolute clear consciousness and able to make the decision” that their suffering is unendurable and medical responses “are not sufficient for their purposes”, he says.

Professor Komesaroff says “very few people who work in palliative care would say they have ever encountered patients who say ‘Please kill me’. People do not express themselves in that way, usually. They have symptoms, they have pain, they have distress – which it is our job to treat. And they may communicate to us that they want that pain treated at whatever cost, and then we will go ahead and do so.”

So the people who meet the bill’s mental competency requirements “already give us guidelines. They tell us what to do and we do what they tell us to do.”

But many patients lack the mental clarity that the assisted dying legislation requires. Nevertheless, difficult decisions have to be made with their help, and on their behalf. “And so I undertake complex processes of communication with my patients, with their families, and with their carers ... And I try to piece together the most appropriate strategy for therapeutic action that I can.”

End-of-life decisions are “almost always immensely complex and emotionally highly charged”, he says. He's concerned that the bill “could potentially make things more difficult, because it creates the appearance of having solved this problem, and leaves the other areas, the difficult areas, untouched”.

While Professor Komesaroff rejects the notion that the legislation will lead to a “slippery slope” in which people’s lives are ended prematurely for the convenience of others – this has not happened in other countries with euthanasia provisions – he's concerned about Australia’s treatment of the elderly. He wonders if the community’s desire for an assisted dying bill is connected to our fears of old age and death.

“In the modern world, in modern Australia, dying has become a pretty tough gig. Elderly people are often isolated from their families, although not always. Aged care is often unaffordable, the standards are poor ... It’s a cruel, harsh world nowadays.

“There’s the sense of the precariousness of modern life. Maybe there was a time, in our imaginations as well as in our cultural traditions, where there was a sense of the ebb and flow of the seasons and the natural harmonies of nature that we are part of. We are abruptly separated from that now. Life is precarious. You can die at any time. You can see people suffering, in pain, every time you turn on the news ...

“A technical or technocratic approach, such as this legislation will provide, doesn’t answer those deep philosophical, ethical, existential questions.”