Since its introduction in June 2019, Victoria’s nation-leading voluntary assisted dying (VAD) law has for the most part proved successful, with all other states (and soon the territories) following suit. But it’s not perfect and five years in, VAD campaigners and ANMF members working with patients who have utilised or tried to utilise VAD have several aspects they would like see improve.
As part of Victoria’s legislation, the government is required to review the law within the first five years, with a final report due by the end of 2024. As far as ANMF (Vic Branch) is aware, however, this review will be of operational matters and will not consider any legislative changes. The Branch considers this to be a missed opportunity.
As part of the review, Engage Victoria is currently inviting individuals, families, carers, organisations and healthcare workers who have been involved with voluntary assisted dying to provide their feedback. Members who wish to do so can find details at bit.ly/VAD-review.
A short history of VAD in Victoria, and Australia
The ACT’s Voluntary and Natural Death Bill was the first official voluntary euthanasia bill introduced into any Australian parliament, on 16 June 1993. It was deemed ‘politically inopportune’0‘(Failed) Voluntary Euthanasia Law Reform in Australia: two decades of trends, models and politics’, UNSW Law Journal, volume 39(1), page 8 and didn’t pass.
But widespread community support for the idea had existed since the 1970s, particularly in Victoria. The Voluntary Euthanasia Society of Victoria (now Dying with Dignity Victoria) was founded in 1974. In 1985, Victoria’s was the first parliament to raise the issue, when it appointed a parliamentary committee to look into the ‘right to die’.
While not advocating for active euthanasia, the Royal Australian Nursing Federation (Victorian Brach) submission to this committee recommended that ‘the state government formally recognise patients’ rights’ and ‘that legislation be developed to protect health professionals who act in accordance with patients’ rights’0Royal Australian Nursing Federation (Victorian Brach) submission to the parliamentary social development committee’s inquiry into options for dying with dignity, May 1986.
The committee rejected the idea of introducing VAD legislation but in 1988 the state passed the Medical Treatment Act, enshrining a patient’s right to refuse medical treatment. This was a significant first step.
In 1991, Helga Kuhse and Peter Singer of the Centre for Human Bioethics surveyed Victorian nurses on their attitudes towards voluntary euthanasia for terminally ill patients. More than 75 per cent of respondents thought it would be good if Australia followed the lead of the Netherlands in effectively decriminalising voluntary euthanasia under certain conditions. And 65 per cent indicated they were willing to be involved in the provision of active voluntary euthanasia if it were legal0Helga Kuhse BA, PhD and Peter Singer MA B Phil, ‘Euthanasia: a survey of nurses’ attitude and practices’, The Australian Nurses Journal, volume 21, No.8, March 1992, p22.
In 1995 the world’s first euthanasia legislation, the Rights of the Terminally Ill Act (the ROTI Act), was passed in the Northern Territory, with Dr Philip Nitschke assisting four people to humanely end their lives before the Howard Government’s Euthanasia Laws Act 1997 removed the power of the territories to legalise euthanasia and overturned the ROTI Act.
It took another two decades – and almost 60 failed Bills around the country – before Victoria passed its Voluntary Assisted Dying Act on 29 November 2017 (it took another 18 months for the law to come into effect, on 19 June 2019.)
ANMF’s support of and advocacy for VAD
As Kuhse and Singer’s survey had already indicated, Victoria’s nurses overwhelmingly supported the idea of VAD. By 1993 momentum was building and the Australian Nursing Federation (Victorian Branch) had begun discussing the matter with members.
At the invitation of the Branch, Kuhse and RN Jocelyn Small, the convenor of the Nurses’ Voluntary Euthanasia Group, published a piece in the December ’93 issue of On the Record magazine calling for Victorian nurses to support the Voluntary Euthanasia Society of Victoria’s proposed Medical Treatment (Assistance to the Dying) Bill, which would have made it lawful for terminally ill patients to end their lives with assistance from doctors.
Pending amendments to ‘respect nurses’ refusal’ the Bill had the support of the Branch0Correspondence from Kelly Minogue, ANF Research Officer, and Helga Kuhse, 28 September 1993 but didn’t pass. It was just the beginning, though. In response to resolutions passed by members at multiple annual delegates conferences, the Branch developed its policy on voluntary assisted dying in 1995. This original policy recognised the Branch’s responsibility to ensure a clear nursing voice was heard in public debate and in the two+ decades since, the Branch and members have continued to advocate for voluntary assisted dying laws, while acknowledging members’ right to conscientious objection and the specialist work of our members working in palliative care.
Has it worked?
Yes, says Julian Gardner AM, a lawyer and human rights advocate who chairs the VAD Review Board. ‘It is operating safely, in the way in which it was intended, and it has provided compassionate care in relieving suffering to a large number of Victorians,’ he told members at the 2022 Delegates Conference.
Palliative care nurse Morgan agrees, as does retired nurse and Dying with Dignity Victoria (DWDV) president Jane Morris.
The sense of relief is remarkable, Morgan says. ‘What I’m noticing is the solace it offers to patients. Just knowing that the option is there is enough to bring a sense of comfort. And those who have been through the process and have it available to them have a sense of clarity: death is not feared, death is their liberation. It’s like they’re celebrating their life rather than mourning.’
For Jane, Victoria’s legislation was the culmination of decades of work and she is proud of what has been achieved. Like Morgan, she sees the relief from simply knowing the option is available. ‘I think it has had a profound effect, even for people who aren’t sick.’
But Jane is the first to admit that the legislation isn’t perfect, and there’s plenty more work to be done.
What’s needed to make it better?
The legally required review of the law will only evaluate the systems, processes and practices that underpin the operation of the Act. It will not consider any changes to the legislation, which remains one of the most conservative in the nation – and the world. This means important challenges will not be addressed.
‘Victoria started off as the leaders; we’re now the laggards,’ says Jane. ‘It’s been a huge waste of taxpayers’ money to have every state go through the exact the same process [following Victoria’s lead]. However, the one good thing to come of it all is that by having staggered legislation, each state pushed the boundaries a bit and improved upon Victoria’s legislation.’
A key problem Victoria has is the ‘gag law’ that prohibits medical staff initiating a conversation about voluntary assisted dying with a patient. With many people in the community still unaware of the law, the requirement for a patient to initiate the conversation means many are being denied information necessary to make an informed decision. ‘It’s so unethical because the patient isn’t able to be provided with all available medical options,’ Jane says.
Morgan agrees it’s a Catch-22. ‘We care for people who we know would want the option, but they don’t know it exists – and we can’t mention it.’
There are other issues too but with no provision for the current review to consider legislative change, Victoria’s leadership continues to slip.