Voluntary Assisted Dying in WA

WA has recently passed law approving voluntary assisted dying, setting out strict eligibility requirements, a detailed step-by-step administration process and a list of relevant offences.

This alert applies to all subscribers who are involved in the provision of clinical health services. It is likely that the relevant obligations imposed by the Bill will be inserted in a new module entitled WA – Voluntary Assisted Dying. The Bill will also amend the WA – Deaths, WA – Drugs, WA – Drugs Misuse, and WA – Drugs (Health Department) topics.

Voluntary Assisted Dying Bill 2019 (WA)

Please be advised that the Voluntary Assisted Dying Bill 2019 (WA) (the Bill) passed Parliament on 10 December 2019. It received Royal Assent on 19 December 2019. Part 1 of this Bill, except for Divisions 2 and 4, will come into operation on the day on which it receives Royal Assent, the rest of will commence on a day fixed by proclamation.

Overview

The Purpose of the Bill is to provide for and regulate access to voluntary assisted dying, to establish the Voluntary Assisted Dying Board (the Board) and to make consequential amendments to other Acts.

Voluntary Assisted Dying Board

Organisations should also be aware that the role of the Board that the Bill creates involves: monitoring the operation of the Bill, providing information and reports on matters relating to the operation of the Bill, and conducting relevant research and analysis.

Principles

Organisations should be aware that under section 4, the Bill imposes a list of principles that those who exercise a power or perform a function under the Bill must have regard for, i.e. every human life has equal value.

Discussing Voluntary Assisted Dying

Section 9A of the Bill prohibits health care workers from initiating discussion about voluntary assisted dying.

Health care worker means:

  • a registered health practitioner; or
  • any other person who provides health services or professional care services.

It is important to note that a contravention of section 9A by a registered health practitioner is unprofessional conduct for the purposes of the Health Practitioner Regulation National Law (Western Australia).

Who may access voluntary assisted dying under the Bill

In accordance with section 15 of the Bill, to be eligible for voluntary assisted dying, a person must:

  • be 18 years or older, an Australian citizen or permanent resident,
  • be ordinarily a resident of Western Australia for a period of at least 12 months, and
  • have decision-making capacity.

Furthermore, the person must have been diagnosed with at least one disease, illness or medical condition that is advanced, progressive and will cause death, either within a period of six months or in the case of a disease, illness or medical condition that is neurodegenerative, within a period of twelve months. It also must cause suffering to the person that cannot be relieved in a manner that the person considers tolerable.

The person must also act voluntarily and without coercion, and their request for access to voluntary assisted dying must be enduring.

Organisations should note that a person is not eligible for voluntary assisted dying only because the person has a disability or is diagnosed with a mental illness, as defined under section 4 of the Mental Health Act 2014 (WA).

General overview of voluntary assisted dying under the Bill

First Request

To initiate the process, a person (a ‘patient’) must in-person – but if this is not practicable, then in accordance with section 156(2)(a) of the Bill – make a clear and unambiguous request to a medical practitioner (during a medical consultation) for access to voluntary assisted dying.

The medical practitioner must record all details of the request and whether it is approved or rejected. The medical practitioner must also not accept the request unless they themselves meet the eligibility requirements for a medical practitioner under section 16 of the Bill, i.e. hold specialist registration. A medical practitioner can refuse a request under section 19 of the Bill if they consciously object either to participating in, or facilitating access to, voluntary assisted dying.

Within two business days after deciding to accept or refuse the request, the practitioner must complete the first request form and provide a copy of the form to the Board.

First Assessment

If the medical practitioner accepts the request, then he or she becomes the coordinating practitioner for the patient and must assess whether they are eligible for voluntary assisted dying.

If the coordinating practitioner is unable to determine if the patient satisfies the requirements set out under section 15 of the Bill, then they must refer the patient to a registered health practitioner or person who has the appropriate skills and training to decide in relation to the matter. The coordinating practitioner may rely on their determination.

It is important that the registered health practitioner to whom the patient is referred in this situation is not a family member of the patient or a person who may benefit from the death of the patient (financially or materially outside reasonable service fees, including as a beneficiary to the patient’s will).

If the coordinating practitioner is satisfied that the patient meets all the eligibility criteria, then they must inform the patient of the matters outlined under section 26 of the Bill, i.e. the treatment options available. The coordinating practitioner must be satisfied that the patient is eligible for voluntary assisted dying and understands the information under section 26. If not, the coordinating practitioner must assess the patient as ineligible and the request and assessment process terminates.

The coordinating practitioner must inform the patient of the outcome of the first assessment as soon as practicable. The coordinating practitioner must also, within two business days of completing the first assessment, fill out the first assessment report form and give a copy to the Board and to the patient.

Consulting Assessment

If found to be eligible, the coordinating practitioner must refer the patient to another medical practitioner for a consulting assessment. The medical practitioner may accept or refuse the referral under section 30 of the Bill.

If the medical practitioner accepts and has completed the approved training under section 35 of the Bill, then they become the consulting practitioner and must assess whether the patient is eligible for access to voluntary assisted dying.

As for the ‘first assessment’ above, the coordinating practitioner can refer a patient to a registered health practitioner or person who has the appropriate skills and training if the coordinating practitioner is unable to determine if the patient satisfies the requirements set out under section 15 of the Bill. It is again important that the registered health practitioner is not a family member or beneficiary of the patient.

If the consulting practitioner finds that the patient is eligible or ineligible and either does or does not understand the criteria found in section 26 of the Bill, the consulting practitioner must notify the patient and the coordinating practitioner of the outcome and fill out and provide the consulting assessment report form to the Board within two business days of completing the consulting assessment and also to the patient. If the consulting practitioner finds the patient ineligible, they may refer the patient to another medical practitioner for a further consulting assessment.

Written Declaration

If assessed as eligible by either the coordinating or consulting practitioner, the patient may make a written declaration requesting access to voluntary assisted dying. If the patient gives a written declaration to a coordinating practitioner, the coordinating practitioner must record the information outlined in section 44 of the Bill, i.e. the date the written declaration was made, and give a copy of the written declaration to the Board within two business days of receiving it.

Final Request

A patient who has made a written declaration, may make a final request to the coordinating practitioner for the patient to access voluntary assisted dying. The final request must be made in person, and if not in person, then in accordance with section 156(2)(a) of the Bill. It also must be clear and unambiguous to the patient’s coordinating practitioner. The final request must be recorded and reviewed by said practitioner, who also must notify to Board of the final request within two business days of it being made.

The coordinating practitioner must also complete the final request form and give a copy of it to the Board.

The final request can only be made after the end of the designated period – which refers to the nine-day period beginning on the day on which the patient made the first request.

On receiving the final request, the coordinating practitioner must review the first assessment form, all consulting assessment forms, the written declaration, and complete the final request form, a copy of which must be given to the Board within two business days after receiving the final request.

Eligibility Requirements for Administering Practitioners

If found eligible for voluntary assisted dying, before prescribing the voluntary assisted dying substance, the coordinating practitioner must inform the patient in writing that the patient: is not under any obligation to take the substance, under any obligation to self-administer, and that the substance must be stored in accordance with the information provided.

The coordinating practitioner must also explain as to how to prepare and administer the substance. Additionally, the coordinating practitioner must inform the patient that if they decided not to administer or otherwise die, then their contact person – an individual appointed by the patient in accordance with Part 4, Division 3 of the Bill – must give the unused or remaining substance to an authorised disposer, who must dispose of it in accordance with sections 74 and 75 of the Bill.

When giving a prescription, the coordinating practitioner must ensure that the prescription clearly states that it is for voluntary assisted dying, that the request and assessment comply with the Bill, that the patient has made an administrative decision – specifying whether the decision is a self-administration or a practitioner administration decision – and provide the telephone number of the patient.

An authorised supplier who is given a prescription for a voluntary assisted dying substance must not supply it unless they have confirmed that the prescription is authentic, the identity of the person who issued the prescription, and the identity of the person to whom the substance is to be supplied. The authorised supplier must, when supplying the prescribed substance; inform the recipient of the matters outlined in section 71 of the Bill, i.e. how to store the substance, ensure that the relevant packaging or container is labelled correctly, and complete an authorised supply form.

Administration Decision

Generally, under the Bill, the patient must self-administer the voluntary assisted dying substance. However, there are some circumstances in which they may have an administering practitioner who has completed the approved training, administer the substance. The administering practitioner must either be an eligible medical practitioner or a nurse practitioner who has practiced for at least two years and meets the relevant requirements.

  1. Self-Administration

For self-administration, the coordinating practitioner is authorised to prescribe a voluntary assisted dying substance to the patient that is of a sufficient dose as to cause death. Within two business days after prescribing a voluntary assisted dying substance for the patient, the coordinating practitioner for the patient must complete the administration decision and prescription form and provide a copy to the board along with a copy of the contact person appointment form.

  1. Administering practitioner

An administering practitioner can only administer the voluntary assisted dying substance if the coordinating practitioner advises that voluntary assisted dying is inappropriate. This might be because of the patient’s inability to self-administer, the patient’s concerns, or the method for administering is not suitable. If the administering practitioner administers the substance to the patient, then the practitioner must confirm in writing the elements outlined in section 60 of the Bill, i.e. that the patient acted voluntarily. The administering practitioner must also ensure that a witness is present, in accordance with section 61 of the Bill.

Within two business days after administering the prescribed substance, the administering practitioner must give a copy of the practitioner administration form to the Board.

Notification of death

The coordinating or administering practitioner must, within two business days after becoming aware that the patient has died, notify the Board, in the approved form under section 81 of the Bill – if there is one – of the patient’s death.

Offences under the Bill

Organisations should be aware that the Bill creates a number of offences under Part 6, such as: unauthorised administration of prescribed substances, inducing another person to request or access voluntary assisted dying, inducing self-administration of a prescribed substance, advertising a Schedule 4 or 8 poison as a voluntary assisted dying substance, the contact person failing to give unused or remaining substance to an authorised disposer, and publishing information about a proceeding before the Tribunal.

Amendments to other Acts

Please be advised that once the Bill comes into force, the Bill will add:

  • a new section 3A to the Coroners Act 1996 (WA), the new section will make a death under the Bill not reportable;
  • section 3B to the Guardianship and Administration Act 1990 (WA), which provides that nothing in the Guardianship and Administration Act 1990 (WA) authorises the making of a treatment decision, whether in an advance health directive or otherwise, in relation to voluntary assisted dying;
  • the definition of health care in Health and Disability Services (Complaints) Act 1995 (WA) will be amended to include ‘voluntary assisted dying as defined in the Voluntary Assisted Dying Act 2019 (WA) section 5’;
  • several definitions in the Medicines and Poisons Act 2014 (WA) will consequentially be amended and new ones included. For example, the definition of ‘prescription’ will be amended and a definition for ‘voluntary assisted dying substance’ will be included; and
  • the Misuse of Drugs Act 1981 (WA) will also be amended to include an additional Part regarding authorisation to sell, supply, possess and use a prohibited drug if authorised.

Please click here to access the full Bill.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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