Eight months after voluntary assisted dying became an option for the terminally ill in Victoria, three bioethicists have raised concerns about a unique ‘gag clause’ preventing doctors from raising the subject with patients.
Section 8 of the Voluntary Assisted Dying Act 2017 (Vic) prevents a registered health practitioner from initiating discussion about voluntary assisted dying, or suggesting it as a possibility.
Monash PhD candidate Courtney Hempton describes the gag clause as “unwarranted, unprecedented and ethically-problematic”.
Breaching section 8 may result in the Australian Health Practitioner Regulation Agency revoking a health practitioners’ licence for “unprofessional conduct”.
When the Act became law on 19 June, 2019, the Victorian Government described it as the world’s safest and most conservative regime for the terminally ill, with ‘68 safeguards’ designed to protect the rights of vulnerable patients.
The Victorian legislation is the subject of Ms Hempton’s PhD thesis.
In April last year she wrote an article about how the Act would work. This triggered a Twitter exchange about the Act between Ms Hempton and two former post-graduates from the Monash Bioethics Centre – Dr Bryanna Moore, now a postdoctoral fellow at Baylor College of Medicine, and Dr Evie Kendal, now a lecturer at Deakin University. The trio decided to draw attention to the gag clause and its implications.
Their article appeared in the Medical Journal of Australia (MJA) on January 20.
Ms Hempton says it is unclear why the gag clause was introduced in Victoria, given the lack of evidence that doctors had exerted a negative influence in other places where physician-assisted death is an option.
Some terminally ill patients may not be aware that voluntary assisted dying is allowed in Victoria, Ms Hempton says. The gag could also be seen as “sending the message that health practitioners cannot be trusted to determine the circumstances in which initiating a conversation about voluntary assisted dying might be appropriate”, the MJA article says.
Reflecting on her previous experience conducting research with terminally ill patients, Ms Hempton discovered that some had not discussed with their doctor how long they were likely to live – their doctor had not raised the subject, and they had not wanted to ask.
She believes it is possible that patients may be similarly timid in pursuing the possibility of voluntary assisted dying. They might be interested, but expect that it is the doctor’s role to introduce the topic.
On the other hand, some doctors may themselves be unaware of the ‘gag’ clause. The unusual provision has so far received little attention.
The Voluntary Assisted Dying Review Board scrutinises each case that is approved in Victoria. Its first report is due in February.
Ms Hempton says she does not expect Victoria’s law to be changed “for a very long time”.
Since the Victorian law was passed, voluntary assisted dying has also been introduced in Western Australia. Their law was largely modelled on Victoria’s. The West Australians decided to dispense with the ‘gag’ clause.
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