We always expected the ACT would have the worst legislation in Australia. The release of the text of the Voluntary Assisted Dying Bill 2023 (Bill) confirms this to be true.
Here are five ways in which the Bill is worse than most other Australian jurisdictions.
It has the lowest threshold for eligibility
All other states in Australia require that a person has been given either 6 or 12 months to live before they are eligible for euthanasia or assisted suicide. The ACT proposes to do away with this requirement. As long as a condition will ultimately cause a person’s death, even if it is many years into the future, they will be eligible for lethal drugs.
What’s more, the eligibility criteria specifically mention mental suffering as being sufficient for access (no physical suffering is required) and notes that this could be related to anticipated suffering or complications, rather than any that are actually existing.
It has the lowest threshold for decision-making capacity
The Bill specifies that a person should not be refused eligibility for euthanasia and assisted suicide for a lack of decision-making capacity unless “all practicable steps to support them to make decisions have been taken.” Notably, there is no requirement to give them “all practicable steps” to access palliative care or other support.
The Bill also states that just because a person does not have decision-making capacity for another decision (for example, in relation to their financial affairs or other decision), does not mean they do not have decision-making capacity to ask for lethal drugs.
If that wasn’t enough, the Bill also says that if a person moves between periods of having and not having decision-making capacity, they should be given the opportunity to make a decision when they have capacity.
All of these point to a lowering of the bar for medical consent and risk a person making a decision when they have limited capacity to understand what is going on.
There is a penalty for trying to coerce someone away from death
Like other states, the Bill includes a penalty for coercing a person towards euthanasia and assisted suicide.
Unlike most other states, however, it also includes a penalty for coercing someone to revoking their request for euthanasia or assisted suicide. A person, including a close friend, family member, or religious or spiritual advisor who tries hard to persuade their loved one away from choosing death could face a penalty of up to $11,000 if such behaviour was deemed to be coercive. The only state that is worse than this is Queensland, which alarmingly threatens up to 7 years imprisonment for the same.
There are no eligibility requirements for medical practitioners listed
Other states require coordinating and consulting practitioners to have minimum eligibility requirements before they are allowed to sign off on a person’s death. Victoria requires at least one of the practitioners to be a specialist in the illness suffered by the patient; other states require any specialist or general registration, with five or ten years experience; and all require additional training to be undertaken.
The ACT has not put any minimum requirements in the Bill, but leaves that to regulations that will be put in place following passage of the legislation. This means that it is open to the regulations having even junior doctors with no experience in terminal illnesses being permitted to approve a patient’s request for death.
Institutions that object to euthanasia face penalties for not allowing access
Only Queensland, South Australia and New South Wales require institutions to allow euthanasia and assisted suicide on their premises, while Victoria, Western Australia and Tasmania allow institutions to opt out completely.
Like Queensland, South Australia and New South Wales, the ACT will seek to require care facilities to allow every stage of the euthanasia and assisted suicide on site, even if the facility itself objects.
Where the ACT differs, however, is that it imposes a penalty of up to $11,000 to those institutions that do not allow reasonable access to those who want to enter the facility for the purpose of engaging in the process. Notably, this penalty is much higher than the penalties for non-compliance with most other aspects of the euthanasia process.
It is clear that the ACT isn’t interested in going down the path of other jurisdictions, which is to introduce ‘conservative’ legislation and then push to have the safeguards removed. The ACT government is instead removing the veneer of limiting the scope of this Bill and starting with far fewer safeguards. It is a dangerous move.