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Safe to listen to clients who raise voluntary assisted dying

Safe to listen to clients who raise voluntary assisted dying

By Karin Derkley

Voluntary Assisted Dying 

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Lawyers can listen to clients when they raise voluntary assisted dying without fearing they may fall foul of the law prohibiting inducement, the LIV’s Succession Law conference heard last week.

The issue might come up when lawyers are having conversations with clients about other end of life planning - such as wills, power of attorney, and advanced care planning, Voluntary Assisted Dying Statewide care navigator Susan Jury said.

“As long as the client raises the issue you can talk about it,” she said.

Care navigators provide support and information to anyone who is interested in accessing or finding out more about voluntary assisted dying - including patients, their family, health support providers and clinicians.

Ms Jury says so far around 150 people have contacted the service, with up to 45 people needing some level of support at any one time.

“Ours is considered to be the safest pieces of legislation in the world,” she said. But that also means that being judged eligible for voluntary assisted dying is a time-consuming and “onerous process for someone who is very ill”.

“There is a lot of confusion out there”, she said. “The feedback we're getting is that people are feeling stonewalled or blocked or not heard - and that creates an enormous amount of anxiety among people who are trying to access this.”

What is confusing for lawyers is that the Act stipulates that the issue must be raised very specifically “and that doesn't always fit with the way people behave,” said Voluntary Assisted Dying Review Board deputy chair Associate Professor Charlie Cork.

“They're supposed to articulate their request as per the Act. But that's not reality and it favours people who have a high level of education. People often make vague suggestions to test the water and put out their feelers.“

“But just because you can't recommend it doesn't mean you can't discuss it or point (clients) towards information,” Professor Cork said.

Maurice Blackburn senior associate Emily Hart says that given the clear proscription, a conservative approach might be best for lawyers.

The Act stipulates that a person must not by dishonesty or undue influence induce another person to make a request to access voluntary assisted dying. There are clear penalties of five years imprisonment and $100,000 for an individual or $400,000 for a body corporate.

“I would only talk about it if it was raised with me,” Ms Hart said. “You can talk about end of life planning more broadly and if the person raises (voluntary assisted dying) you can talk about it broadly, and then the process is that you then refer the patient on.”

The complication  is that there are still very few doctors to whom a lawyer can refer a client who expresses an interest in voluntary assisted dying, with only around 170 doctors in Victoria having completed the training, Professor Cork said. “The chance of finding a doctor is very small.”

That underlines the importance of care navigators like Ms Jury who can direct the patient to available doctors, he said. “It is important to clarify what they really want,” Ms Hart said. “Sometimes people can be more open with their lawyer than with a medical person.”

Another complication is that under the federal Telecommunications Act, there is a prohibition on using a carriage service, telephone, Skype or email, to discuss voluntary assisted dying.

“That is an unexpected and very serious impediment that has come from out of left field,” Professor Cork said. “The advice is that you can't ring another doctor and say can you see my client. From a rural point of view this is a big problem because it rules out teleconferencing.”

The prohibition means that discussions need to take place face to face or via the post. Even care navigators are banned from discussing voluntary assisted dying over the phone or via email.

“I would love the federal government to change it,” Professor Cork said. “It’s a massively inefficient process.”


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