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Euthanasia: Lawyers’ role in “Right to die” Bill

Every Issue

Cite as: (2008) 82(9) LIJ, p. 76

The Victorian Parliament is debating a private member’s Bill on medically assisted dying.

In August 2008, the Medical Treatment (Physician Assisted Dying) Bill 2008 was being debated in the Legislative Council of the Victorian Parliament.

If passed, this Bill will enable a treating doctor, in strictly defined circumstances, to respond to a formal request by a patient for assistance in dying. A doctor who provides assistance in accordance with the proposed Act will no longer be subject to prosecution for an offence against s6B of the Crimes Act 1958.

A doctor will be entitled to provide help in dying only if the patient is suffering intolerably from a terminal or advanced incurable illness. The doctor may assist the patient to die only by providing him or her with a lethal drug to be taken by ingestion. Only the patient or his or her appointed agent (not the treating doctor) will be entitled to administer the drug.

Before assistance in dying may be provided, the doctor and the sufferer will have to go through a series of procedures. These are aimed at making sure that the sufferer is fully informed before making a request, and that a decision to seek help in dying is made freely and voluntarily, without undue influence from outside, and only after the sufferer has been fully informed about all the factors to be taken into account in making such an important decision.

A request may be made only after the sufferer has been informed about the illness and its likely course, options for its treatment, and the availability and effect of palliative care. An independent doctor must review the sufferer’s file, interview and examine the sufferer, and discuss the case with him or her and the treating doctor. The treating doctor must ensure that copies of the relevant documents (including any prescription) are provided to the State Coroner.

Special provisions provide immunity to doctors, pharmacists, nurses, and anyone present at or before the death, from criminal, civil or disciplinary proceedings, or any other prejudicial action.

Doctors and others are entitled to refuse to participate in providing assistance under the proposed Act; and doctors and others are protected against any disciplinary or other prejudicial action being taken against them for participating or refusing to participate. Disciplinary or other prejudicial action may nonetheless be taken if a doctor provides assistance in circumstances where a health care provider is involved, and the doctor knew or ought to have known that he or she was forbidden by the health care provider to provide that assistance. If a health care provider is involved, it must be informed of the sufferer’s request before the assistance can be given.

If the Bill is passed, it may be unlikely that lawyers will be asked by sufferers for advice on the procedures that have to be followed to obtain assistance in dying. In most cases, that advice will presumably be sought from treating doctors or from bodies such as Dying with Dignity Victoria. However, a lawyer is specifically given immunity under the proposed legislation in relation to providing advice to a sufferer, or his or her family, concerning the procedures to be followed.

However, lawyers may well be asked to give advice to doctors, other medical staff, pharmacists and health care providers about the requirements in the proposed Act.

In particular, lawyers should expect to be asked for advice about the creation of compliance procedures to minimise the risk of innocent mistakes and the consequent loss, for treating doctors at least, of the immunity provided by the proposed legislation.

Lawyers may also be asked for advice by health care providers about the procedures that they should put in place to ensure that doctors and other medical staff who decline to take part in providing assistance under the Act are properly protected from any prejudice as a result of exercising their rights.

Again, health care providers who do not want assistance to be given, either to their patients or in their facilities, may well seek advice on any changes that should be made to codes of conduct, contracts of employment and appointments of consultants to ensure that they are able to give maximum effect to their right not to become involved in any way in participating in the provision of assistance under the proposed Act.

DAVID ST L KELLY
Former chair, Victorian Law Reform Commission

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