Protections have been introduced to VAD legislation. Photo: Michelle Kroll.
Language in the proposed voluntary assisted dying (VAD) law has been tightened to ensure no one with a disability or mental disorder is pressured into or encouraged to access the service.
Several amendments to the Voluntary Assisted Dying Bill 2023 were debated across two days in the Legislative Assembly earlier this week before the law was ultimately passed.
One tranche of changes from Human Rights Minister Tara Cheyne was to clarify that people with a disability, mental disorder or mental illness could voluntarily access the scheme, but only if they also satisfied the other eligibility criteria.
“A disability or mental disorder alone will not make a person eligible for voluntary assisted dying,” she said.
“This is a critical safeguard to protect individuals with a disability from stigmatisation and harm arising from assumptions about their disability and their willingness to access voluntary assisted dying.”
Disability Minister Rachel Stephen-Smith said the change was needed because some of the conditions outlined to make a person eligible for VAD could also be considered a disability.
“The new proposed [clause] indicates that the person doesn’t meet the requirements for voluntary assisted dying solely because they have a disability,” she said.
“But that an illness or a condition that would otherwise enable them to meet the eligibility requirements … wouldn’t be ruled out because it could also be understood as a disability.”
Language was further clarified to make sure there was the ability to make a more “nuanced” distinction between conditions that are permanent impairments but also progressive and cause death (which could be assessed as eligible to access VAD) and those that are solely the effects of an accompanying disability that would not, on their own, allow for eligibility.
Ms Stephen-Smith said this was an important protective measure.
“The government seeks to ensure that no one who is experiencing a disability, mental disorder or mental illness solely is ever pressured or encouraged to seek voluntary assisted dying,” she said.
“[It will also enable] people with disability, who are otherwise eligible, to access voluntary assisted dying.”
The definition of what constitutes a person to have an “advanced” condition was also further clarified.
A person’s relevant conditions will be considered advanced if their functioning and quality of life have declined or are declining and are not expected to improve, as well as if any treatments for the condition (that are reasonably available and aren’t primarily for pain relief) have lost any “beneficial impact”.
“These amendments make it clear that it is not the intent of this legislation that the definition of ‘advanced’ be limited to the final days, weeks or months of life,” Ms Cheyne said.
A person will be considered as approaching the end of their life even if it’s uncertain whether their advanced relevant conditions will cause death within the next 12 months.
“There may be instances where an individual’s timeframe to death is unclear, unpredictable or when the person’s prognosis has a range of outcomes,” Ms Cheyne said.
Many other jurisdictions have a six to 12-month timeframe to death for people to be able to access VAD.
One issue that was raised was around the storage of unused voluntary assisted dying medication.
The proposed legislation states any leftover medication must be returned to an authorised supplier (by an authorised contact person) within 14 days of either a person’s death or their decision not to use the medication.
Canberra Liberals backbencher Elizabeth Kikkert wanted this timeframe shortened to no more than 72 hours.
“This shorter timeframe ensures that the medication is either used for the intended purpose and safely returned to authorities before any mishaps can occur,” she argued.
“By reducing the return period, we significantly lower the risk of unauthorised access and potential misuse and death.”
The committee inquiry into the bill recommended the return timeframe should be no longer than 48 hours.
As Ms Kikkert did not raise this as an amendment, it was not a point that the Assembly could debate.
Ms Stephen-Smith made assurances that the legislation and associated regulation would have “significant safeguards” to ensure the appropriate storage and disposal of approved substances.
Ms Cheyne also argued it was about striking a balance between mandated timeframes and compassion.
“An authorised contact person is often a close family member of the deceased, and an appropriate period of time is considered necessary to allow them to grieve,” she said.
Amendments by Shadow Mental Health Minister Ed Cocks to broaden provisions for conscientious objectors, including not having to provide information about where the scheme could be accessed, were also voted down.
Opposition leader Elizabeth Lee was unsuccessful in removing the requirement for the first review of the law to consider whether someone can access VAD if they’d lived in the ACT for less than 12 months (if they don’t meet other exemption criteria) and to consider whether the law should be expanded to include children with “decision-making capacity”.
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