The focus of Queensland's draft VAD bill is on "designing optimal law, rather than simply adopting another state’s law because it happened to be passed first", write Professors Lindy Wilmott and Ben White.
Queensland has become the latest Australian state to move forward on the issue of voluntary assisted dying. Draft legislation, developed by the Queensland Law Reform Commission, is expected to be tabled in parliament next week.
This reflects moves across the country over the past few years to permit voluntary assisted dying (also sometimes called voluntary euthanasia).
The Queensland laws, if passed, would be similar to those in other states, but not identical.
A quick recap
Victoria’s law was passed in November 2017 and came into force in June 2019 after an 18-month implementation period.
Next was Western Australia, whose 2019 law will come into effect on July 1, 2021.
Tasmania passed a voluntary assisted dying law in March this year, set to begin in 2022.
And South Australia’s lower house is now considering its own bill, after the upper house approved the proposed law earlier this month.
In New South Wales, independent MP Alex Greenwich is drafting a voluntary assisted dying law. It’s due to be released in July for consultation.
The Australian Capital Territory and the Northern Territory don’t have legislative power to pass laws about voluntary assisted dying. But there are active efforts to repeal the Commonwealth law that prohibits the territories considering it.
Reflecting on Victoria’s experience
In preparing the draft legislation, the Queensland Law Reform Commission had the opportunity to reflect on the emerging body of evidence about how the Victorian law is operating in practice.
While the safeguards in Victoria’s voluntary assisted dying system are working to ensure only eligible patients can access it, questions have been raised about challenges in accessing the law. For example, some people don’t necessarily know the option exists, while navigating the eligibility assessment process can be demanding.
Background like this from Victoria’s experience led the commission to recommend some departures from laws enacted elsewhere in Australia.
The commission’s approach aimed to design “the best legal framework for a voluntary assisted dying scheme in Queensland” and not to be “constrained by similar laws in other Australian states”.
In other words, the focus was on designing optimal law, rather than simply adopting another state’s law because it happened to be passed first.
How is Queensland’s proposed law different?
Some features are common to all Australian voluntary assisted dying laws. For example, eligibility criteria broadly include requirements that a person has an advanced and progressive condition that will cause death, and they are suffering intolerably from it. The person must also be an adult, have decision-making capacity, be acting voluntarily and satisfy various residency requirements.
The Queensland proposal’s eligibility criteria are different in relation to the person’s life expectancy. A person is eligible for voluntary assisted dying under the Queensland bill if they are expected to die within 12 months. Under other Australian models, the period is six months, except for progressive neurological conditions, in which case it’s 12 months.
Although some commentators (including us) question the need for a designated time period, a 12-month limit is a more coherent approach than the existing six or 12-month approach elsewhere.
First, it’s very hard to justify having different time limits to access voluntary assisted dying depending on the nature of your illness.
Second, a longer eligibility period allows a person who is diagnosed with a medical condition more time to apply for voluntary assisted dying. This may allow patients to start the application process a little earlier, and reduce the likelihood they may die before accessing voluntary assisted dying (given the process can take some time).
Another novel feature is the Queensland bill limits the ability of institutions to object to voluntary assisted dying. This is an Australian-first as Victorian, Western Australian and Tasmanian laws only deal with permitting individual health professionals to conscientiously object.
This is important because there’s evidence in Victoria that institutions are blocking access to voluntary assisted dying. One media report described a Catholic hospice barring access to pharmacists delivering the voluntary assisted dying medication to a patient.
The commission recommends creating legislative processes so eligible patients’ access to voluntary assisted dying is not unreasonably hindered by institutional objections.
Will the Queensland bill become law?
After the bill is tabled in Queensland parliament next week, it will be referred to the Parliamentary Health Committee (which originally recommended reform). That committee will have a consultation period of 12 weeks.
Parliament is expected to vote on the bill in September, and if the law is passed, it will likely come into effect in January 2023. As in other states, a period of implementation ensures the voluntary assisted dying system is ready before the law takes effect.
As is usually the case in such debates, both major parties have offered their MPs a conscience vote. Although Queensland is the only Australian state never to have considered a voluntary assisted dying bill, its single house of parliament may mean the law is more likely to pass.
Further, given the growing national trend to permit voluntary assisted dying and the careful and measured law reform process, we anticipate Queensland is likely to pass voluntary assisted dying laws this year.
Ben White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of Technology and Lindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of Technology