Content Warning: This article will discuss suicide and the Voluntary Assisted Dying Act 2021 (Qld) which may be disturbing for some readers. Reader discretion is advised. If you, or someone you know, is in crisis and needs help now, call triple zero (000). You can also call Lifeline on 13 11 14 or the Suicide Call Back Service on 1300 659 467.
The Voluntary Assisted Dying Act 2021 (“the Act”) commenced from 1 January 2023 and enables eligible Queensland patients, who are terminally ill and suffering from intolerable pain, to consider assisted suicide as an end-of-life option and as a measure to relieve their pain and suffering.1
At its most basic form, voluntary dying is defined as “a person who competently requests help to commit suicide or asks to be killed”2 and voluntary assisted dying or physician assisted suicide is “where a competent person requests a doctor to provide the means of death to the person”, for example through medication.3
Historical position – so why was the Act necessary?
Over the years, and across Australia’s various jurisdictions, individuals have been charged and convicted of aiding and abetting suicide,4 or its other iterations, murder5 or manslaughter6 as a result of assisting their terminally ill friends and family members to die.
Criminal prosecutions in this space have been infrequent and Australian courts have been, arguably, inconsistent in their decision making.7
One of the first cases to be determined is that of R v Maxwell.8 Mr Maxwell was charged with aiding and abetting suicide after he bought the materials for and facilitated the suicide of his then wife. Mr Maxwell secured a plastic bag over his wife’s head and shoulders and introduced helium into the bag.9 Mrs Maxwell had made her husband promise to assist her to end her life if her health did not improve and was suffering from breast cancer which was no longer operable.10 Mr Maxwell was subsequently sentenced to eighteen months’ imprisonment, wholly suspended.
In contrast is the case of Director of Public Prosecutions v Nestorowycz,11 where the defendant, Mrs Nestorowycz was charged with attempted murder of her husband who was suffering from dementia. Mrs Nestorowycz had unilaterally “decided that there was no point in her husband continuing to live, and that therefore he should die, and that [the defendant] should kill him.12 The Court held that “judges do not have the right to decide whether someone else should live or die” and neither did the defendant.13 Taking into consideration the various mitigating factors, Mrs Nestorowycz was sentenced to imprisonment for two years and nine months, wholly suspended.
The Act, instead, looks to provide more autonomy and choice to patients who are suffering from a terminal illness and who are considering their end-of-life options. This regulated framework should, consequently, reduce the likelihood of criminal prosecutions.
Key provisions of the Act
The Act has numerous and extensive safeguards to, amongst others, ensure the procedure is administered in a competent manner having regard to the qualifications and training of the practitioner administering the procedure and that the patient has provided informed and ongoing consent. Although the below is not by any means a comprehensive summary of the Act, some of the key provisions are outlined.
Accessibility
The Act imposes a strict criteria before voluntary assisted dying can be accessed. These requirements can be summarised as:
- a patient has made three separate requests to access voluntary assisted dying;14
- the coordinating (the doctor who accepts the first request)15 and consulting practitioners (the second doctor who accepts the first doctor’s referral and conducts the second independent assessment) have assessed the patient as meeting the requirements of a first assessment of the patient.16 Throughout the staged request and assessment process, the coordinating and consulting practitioners must comply with their mandatory reporting obligations to the Voluntary Assisted Dying Board (“the Board”).17 If they fail to do so, the coordinating and consulting practitioners may be liable for a maximum of 100 penalty units, or $14,375.00,18 for each breach of their reporting obligation to the Board;
- the coordinating practitioner has certified in the approved form that the:
- request and assessment process has been completed in accordance with the Act;19 and
- patient has decision-making capacity in relation to voluntary assisted dying;20 and
- patient is acting voluntarily and without coercion; 21 and
- the patient has made an administration decision (whether to proceed by self-administration or practitioner administration); 22 and
- the patient has appointed a contact person.23
Importantly, a patient is entitled to, at any time during the above process, withdraw their consent to continue.24
Eligibility
The Act also imposes a strict criteria before a patient can be assessed as being eligible to access voluntary assisted dying. A patient can only do so if they:
- have been diagnosed with a disease, illness or medical condition that is advanced, progressive, will cause death within twelve months, and is causing intolerable suffering;25
- have decision-making capacity in relation to voluntary assisted dying;26
- are acting voluntarily and without coercion;27
- are at least 18 years old;28 and
- fulfill the relevant residency requirements29 that they are either an Australian citizen, permanent resident, have resided in Australia for at least three years or have been granted a residency exemption.
Administration
After a patient has been assessed as being eligible, there are two forms in which a voluntary assisted dying substance can be administered.
The default method of administration is self-administration which involves a doctor providing a voluntary assisted dying substance to a patient to ingest at a time and place of their choosing.30 There is also no requirement for a health practitioner to be present during this process but, a “contact person” must be pre-arranged who can notify the coordinating practitioner of the patient’s passing.31
Alternatively, practitioner administration permits a medical practitioner, an eligible nurse practitioner,32 or registered nurse33 to administer the voluntary assisted dying substance directly to a patient.34
Practitioner administration is only available to a patient to access if the coordinating practitioner determines self-administration is inappropriate because of the:
- patient’s ability to self-administer the substance;
- patient’s concerns about self-administering the substance; or
- method for administering the substance that is suitable for the patient.35
What happens now that we have the Act?
Although the Act creates a legal framework for assisted suicide to be accessed by Queensland patients, one practical issue that could arise is the current inconsistency with the Commonwealth Criminal Code Act 1995 (Cth) (“the CCA”) and the possible prosecution of any health and/or medical practitioner who facilitates or administers assisted suicide.
Criminal prosecution
The CCA currently prohibits any person using a carriage service, that is, electronic communication to, indirectly or directly, counsel, incite, promote or provide instruction on “suicide”.36
For example, if a health and/or medical practitioner conducted any consultation and/or assessment in relation to voluntary assisted dying over telephone / video format (telehealth), they could be criminally prosecuted for providing information, counselling, inciting, or promoting suicide.37
Whilst it is unlikely that criminal prosecutions will ensue in circumstances where a practitioner has followed the Act meticulously, and it would not be in the public interest to prosecute, health and/or medical practitioners still run the risk of being charged and, consequently, their Australian Health Practitioner Regulation Agency registration could be jeopardised.
It is conceded that under ideal circumstances, all consultations and assessments in relation to voluntary assisted dying, given the nature of severity of the decision, should occur in person.38 However, this practice will not always be realistic, especially if there is a limited number of participating or qualified practitioners and/or institutions within reach of the patient’s residence, particularly given the staged assessment process as stipulated by the Act.
The CCA, therefore, could be seen as diminishing the ability of a health and/or medical practitioner fulfilling one of the principles of the Act, namely, to provide access to voluntary assisted dying and other end-of-life choices to a person who lives in Queensland regardless of where they live.39
Notwithstanding the above, voluntary assisted suicide by self-administration is not considered suicide40 in the Act (as the patient is taken to have died from the disease, illness or medical condition that they were suffering with).41
The word “suicide” is not defined in the CCA. Therefore, taking the ordinary and natural meaning of the word and the intent of the Parliament,42 “suicide” means “the intentional taking of one’s own life, provided it is done voluntarily and not under compulsion or with an impaired mental state”.43
The significance of using the ordinary and natural meaning of the word “suicide” means that the relevant provisions of the CCA could be invoked because the patient, albeit legally, “intentionally took [their] own life via self-administration.”44
If a patient were to, however, access the practitioner administration method of voluntary assisted dying instead of self-administration, the relevant provisions of the CCA may not be invoked. This method of administration would not constitute suicide (using the ordinary and natural meaning of the word) as the patient does not perform the act causing death themselves,45 but rather the practitioner which administered the voluntary assisted dying substance.
Key takeaways
- The Act is a long-awaited piece of legislation that aims to provide eligible patients the option to request medical assistance to end their lives (and suffering) in a safe and regulated manner.
- There are strict criteria that must be adhered to before a patient can access the scheme and be assessed as being eligible to receive an assisted dying substance. The Act also establishes safeguards to protect vulnerable persons from coercion and exploitation.
- The CCA in its current form can pose significant complications and barriers to the access of voluntary assisted dying in Queensland.
- Health and/or medical practitioners may become the subject of criminal liability given the current inconsistencies between the definition of “suicide” used across the Act and the CCA.46
As the Act comes to play in our judicial system, we will await more case law and precedent to develop to see how the Act and the CCA work together (or against each other) on this sensitive issue. Hopefully, a grounding can be found that will:
- protect terminally ill and vulnerable patients;
- protect the health and/or medical practitioners involved; and
- remove the current conflict between the Act and the CCA.
References:
[1] Queensland Health, Development of the Voluntary Assisted Dying Act (9 June 2022) Voluntary Assisted Dying in Queensland <https://www.health.qld.gov.au/system-governance/legislation/specific/voluntary-assisted-dying-background>.
[2] Ben White, Fiona McDonald and Lindy Willmott, Health Law in Australia (Thomson Reuters, 3rd ed, 2018) 527.
[3] Ibid.
[4] Criminal Code 1899 (Qld) s 311.
[5] Ibid s 302.
[6] Ibid s 303.
[7] Jocelyn Downie, ‘Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions’ (2016) 16(1) QUT Law Review 84, 103–104; Katrine Del Villar, Lindy Willmott and Ben White, ‘Voluntary Requests or Vulnerable Adults? A Critique of Criminal Sentencing in Assisted Suicide and ‘Mercy Killing’ Cases’ (2022) 45(2) University of New South Wales Law Journal, 1, 8–13.
[8] R v Maxwell [2003] VSC 278.
[9] Ibid [26].
[10] Ibid [13].
[11] DPP (Vic) v Nestorowycz [2008] VSC 385.
[12] Ibid [3].
[13] Ibid [4].
[14] Voluntary Assisted Dying Act 2021 (Qld) ss 9(a), 9(d), 9(e), 14, 37–38, 42–43; Voluntary Assisted Dying Act 2021 (Qld) Divs 2–3.
[15] Ibid ss 16 and 18.
[16] Ibid ss 9(b)–(c) and 19.
[17] Ibid ss 24, 28, 35, 41 and 45–47.
[18] Penalty and Sentences Act 1992 (Qld) s 5.
[19] Voluntary Assisted Dying Act 2021 (Qld) s 9(f).
[20] Ibid ss 9(f) and 46(3)(b)(i).
[21] Ibid ss 9(f) and 46(3)(b)(ii).
[22] Ibid s 9(g).
[23] Ibid s 9(h).
[24] Ibid s 15.
[25] Ibid ss 10(1)(a) and (2)(b).
[26] Ibid s 10(1)(b).
[27] Ibid s 10(1)(c).
[28] Ibid s 10(1)(d).
[29] Ibid ss 10(1)(e), (1)(f) and (2)(a).
[30] Katrine Del Villar et al, ‘Voluntary Assisted Dying by Practitioner Administration is Not Suicide: A Way Past the Commonwealth Criminal Code?’ (2022) 29(1) Journal of Law and Medicine 129, 131.
[31] Voluntary Assisted Dying Act 2021 (Qld) ss 58–61.
[32] Ibid s 83(a)(ii).
[33] Ibid.
[34] Above n 30, 131.
[35] Voluntary Assisted Dying Act 2021 (Qld) s 50(2).
[36] Criminal Code Act 1995 (Cth) ss 474.29A and 474.29B.
[37] Above n 30, 136.
[38] Above n 30, 132.
[39] Voluntary Assisted Dying Act 2021 (Qld) s 5(e).
[40] Ibid s 8(a).
[41] Ibid s 8(b).
[42] Acts Interpretation Act 1901 (Cth) s 15AA.
[43] Above n 30, 134.
[44] Katrine De Villar et al, Voluntary Assisted Dying and the Legality of Using a Telephone or Internet Service: The Impact of the Commonwealth ‘Carriage Service’ offences (2020) < https://eprints.qut.edu.au/207083/8/Voluntary_assisted_dying_and_the_legality_of_using_a_telephone_or_internet_service_The_impact_of_Commonwealth_Carriage_Service_offences_NC.pdf>; Above n 30, 135.
[45] Above n 44; Above n 30, 129.
[46] Above n 44.
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