Voluntary Euthanasia in New South Wales: Draft legislation to be considered in 2017

May, 2017

Prompted by the draft Voluntary Assisted Dying Bill 2017 (NSW), New South Wales is preparing to tackle growing community demands for end-of-life legislation in the coming months. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short discuss.

A draft of the Voluntary Assisted Dying Bill 2017 (NSW) (Bill) was recently released for public consultation by a New South Wales working committee on 16 May 2017. The Bill is co-sponsored by Independent MP Mr Alex Greenwich, Nationals MLC the Hon Trevor Khan, Liberal MP Mr Lee Evans, Greens MLC Dr Mehreen Faruqi and Labor MLC the Hon Lynda Voltz. It is expected that the Bill will be introduced to Parliament in August.

Voluntary Assisted Death and Eligible Patients

The Bill proposes a legislative framework within which eligible terminally ill patients may request and receive assistance from their primary medical practitioner (PMP) to end their lives voluntarily. An eligible patient must:

a) be at least 25 years of age;
b) ordinarily reside in New South Wales;
c) be suffering from a terminal illness (including mental or physical injury or degeneration) which, in reasonable medical
judgment, is likely to result in death within 12 months; and
d) be experiencing severe pain, suffering or physical incapacity to an extent unacceptable to the patient.[1]

‘Assistance’ is defined to include the prescribing, preparation and supply of a substance to either the patient for self-administration or, where the patient is physically incapable of self-administration, a person (> 18 years) nominated by the patient to administer the substance to the patient (Nominee).

Division 3 of the Bill sets out additional requirements that must be met before any PMP may assist an eligible patient to end that patient’s life. Specifically:

a) the patient must be assessed by their PMP and another specialist medical practitioner[2] and the latter must agree with the
opinion of the PMP in relation to the patient’ s terminal illness and prognosis;[3]
b) the PMP must provide certain details relating to the patient’s terminal illness and available therapy to the patient;[4]
c) the patient must be examined by an independent psychiatrist or psychologist who must conclude that the patient is of
 sound mind and that their request has been made “freely, voluntarily and after due consideration”;[5] and
d) a formal certificate (or audio-visual request in special circumstances) must be completed at least 7 days after the patient’s
initial request.[6]

A 48-hour cooling-off period begins upon completion of a request certificate within which the PMP must not assist the requesting patient.[7] Notably, consequential amendments stated in the Bill provide that guardians appointed under the Guardianship Act 1987 may not exercise any function of making or rescinding a request for assistance under the Bill.

Health Practitioners, Nominees and Health Care Providers

Importantly, a patient who has requested assistance under the Bill may rescind that request at any time.[1] Correspondingly, any PMP or Nominee requested by a patient under the Bill may assist or, for any reason and at any time, refuse to assist the patient to end their life.[2]

A PMP providing assistance under the Bill must be guided by appropriate medical or pharmaceutical information and any guidelines prescribed by regulations made under the Bill.[3] For example, a PMP may only use an ‘authorised substance’ for the purpose of assistance under the Bill.[4] Further, a PMP must not provide assistance if he or she knows that any financial or other advantage is likely to be gained as a result of the death of a patient.[5]

A health care provider (e.g. hospital or nursing home) or other person is also not under any duty to participate in the provision of assistance under the Bill. Any health care provider who is unable or unwilling to participate must, if requested to do so by the patient, transfer the patient’s medical records to another health care provider.[6]

Importantly, any person who does or does not participate in the provision of assistance under the Bill is protected from criminal and civil liability (including disciplinary proceedings).[7]

Safeguards and Protections

Notably the Bill also imposes restrictions on the enforceability of wills and other agreements to reduce abuse of the rights otherwise afforded under the Bill. In particular, any agreement or provision of an agreement is not enforceable to the extent that it may affect the decisions (and actions) of any person under the Bill, or purports to exclude or limit liability of any person under the Bill.[8]

Further, it is an offence under the Bill, with a maximum penalty of 4 years’ imprisonment, for a person to:

a) give (or promise) or accept any financial or other advantage (other than a reasonable payment for medical services) for
assisting or refusing to assist a patient to end the patient’s life;[9]
b) cause or threaten to cause any disadvantage to any person for assisting or refusing to assist a patient to end the patient’s
life;[10] or
 c)  procure the signing or witnessing of a request certificate by deception or improper influence.[11]

Following the completion of a request certificate, there remains scope under the Bill for a close relative of a patient to apply to the Supreme Court for an order to declare the certificate invalid.[12]

Concluding Remarks

Mrs Anne Gabrielides, a sufferer of Motor Neurone Disease, has been a key community proponent of end-of-life legislation in New South Wales. She launched a change.org petition pleading NSW MPs to support the draft Bill and has presently obtained over 60 000 signatures. For Mrs Gabrielides and other terminally ill patients, the draft Bill represents an important step forward for New South Wales, and Australia, toward tackling the growing community demand for end-of-life legislation and the possibility of lawful voluntary assisted death.

Given the infancy of the draft Bill and the sensitivity of the topic, it would be safe to say that the expectations of the community, the medical profession and legislators, among others, have not been wholly reconciled in the draft Bill. Notwithstanding this, the Health and Life Sciences team at Mills Oakley looks forward to participating in open and constructive dialogue on this topic so that New South Wales Parliament can consider stakeholder input and sentiment when it debates the Bill later this year.

Contact Mills Oakley

For further information, please contact:

Teresa Nicoletti

Dr Teresa Nicoletti 
Partner | Intellectual Property, Health and Life Sciences
T: +61 2 8035 7860
E: tnicoletti@millsoakley.com.au

 

[1] (cl 5).

[2] (cl 6-7).

[3] (cl 9).

[4] (cl 10).

[5] (cl 11).

[6] (cl 24).

[7] (cl 25); notably, the use of force to prevent the making of a request or provision of assistance would not be permitted by s 574B of the Crimes Act 1900 which otherwise provides for the lawful use of force for the prevention of suicide.

[8] (cl 26).

[9] (cl 12).

[10] (cl 12).

[11] (cl 13).

[12] (DIv 4).

[1] (cl 4).

[2] (cl 14).

[3] (cl 17)

[4] (cl 15)

[5] (cl 16)

[6] (cl 18); the form of request certificate to be used is provided in Schedule 1.

[7] (cl 8)

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