Exploring Australia's new assisted dying law

After the Voluntary Assisted Dying Act 2021 came into force on 1 January 2023, Queensland patients with terminal illness or excruciating pain can explore assisted suicide as an option for the end of their lives.

In Australia, people who helped their terminally sick friends and family members die have long been charged and convicted of murder or manslaughter in the country’s many jurisdictions. Yet in this area, criminal charges have been rare and Australian courts' rulings have, perhaps, been contradictory.

A relevant case is R v Maxwell [2003] VSC 278. After purchasing the necessary supplies and facilitating the death of his then-wife, Maxwell was charged with aiding and abetting her suicide. Helium was put into the plastic bag that Maxwell had placed over his wife's head and shoulders. If her health did not improve and she had breast cancer that was no longer treatable, Maxwell’s wife made him promise to help her end her life. After that, Maxwell received a suspended sentence of 18 months in prison.

In contrast, Mrs. Nestorowycz was accused of attempting to murder her husband who had dementia, in the case of DPP (Vic) v Nestorowycz [2008] VSC 385. Nestorowycz had determined that there was no sense in her husband continuing to live and that she should kill him. The court said neither the defendant nor judges have the authority to determine whether another person should live or die. Considering the different mitigating circumstances, Nestorowycz received a sentence of two years and nine months in jail.

Provisions of the act

The long-awaited act seeks to give patients the choice to request medical aid to terminate their lives and suffering in a controlled and safe manner. Before a patient may enter the programme and be determined to be qualified to receive an assisted-dying drug, they must meet strict requirements. The act also establishes protections to defend against coercion and exploitation of those who are vulnerable.

The act imposes a strict criteria before voluntary assisted dying can be accessed. Among these are a patient making three separate requests to access the assistance. Two doctors are needed, one who accepts the first request and a second doctor to assess the patient as meeting the requirements of the first assessment. The doctors must comply with obligations to report to the Voluntary Assisted Dying Board, and failure to do may result in a fine of $14,375 for every breach of reporting obligations.

The second doctor must certify that the request and assessment process has been completed within the act, the patient has decision-making capacity vis-à-vis voluntary assisted dying and the decision is per their own wishes without coercion.

A patient must be at least 18 years old, have been diagnosed with an advanced, progressing illness that will result in death within a year, to be eligible for voluntary assisted dying. A patient must also meet Australia's residency criteria, which include being an Australian citizen or permanent resident, having resided there for more than three years, or having a residency exemption.

Addressing inconsistencies

While the act establishes a legal framework for Queensland patients to access assisted suicide, there may be a practical issue due to the laws having inconsistency with the Commonwealth Criminal Code Act 1995 (CCA) and the potential for prosecution of any medical professional who facilitates or administers assisted suicide.

More case law and precedent will need to be established before we can determine how the act and the CCA interact with one another on this delicate subject as the act is put into practise in our legal system. Ideally, a foundation can be established that safeguards vulnerable and terminally ill patients, as well as the health and safety of the medical professionals engaged and resolves any tensions that exist between the act and the CCA.

Kimia Zarei is an associate at Traviz Schulz & Partners schultzlaw.com.au