Western Australia (2021-)

Euthanasia and assistance to suicide became legal in Western Australia from 1 July 2021.

The Voluntary Assisted Dying Act 2019 allows the prescription by a medical practitioner for self-administration, or administration by a medical or nurse practitioner, of a lethal dose of poison in order to cause the death of an adult who has requested the prescription and who is assessed by two medical practitioners as having a condition that will “on the balance of probabilities” cause death within 6 months or, in the case of a neurodegenerative condition cause death within 12 months.

So, people with a 49% chance of living longer than 6 (or 12) months qualify. Given that doctors make errors in both diagnosis of a terminal condition and in prognosis, the law will inevitably lead to unnecessary premature deaths of people who were either not terminally ill or may have had years to live.

As neither of the two assessing medical practitioners is required to have any specialist qualifications relevant to the alleged condition or even have any experience in caring for people with that condition there is an increased chance of such errors as well as of a failure to inform the person of all available treatments.

Nor does either practitioner need to have any expertise in palliative care and there is no requirement to refer the person for a specialist palliative care consultation.

Access to palliative care is uneven in Western Australia – especially in regional and remote communities. However, the WA Government has established the Western Australian Voluntary Assisted Dying Statewide Care Navigator Service and a Regional Access Support Scheme to provide financial and logistical support to people in remote and regional communities to easily access euthanasia and assistance to suicide. Equal access to euthanasia and assistance to suicide is established under the Access Standard. The Statewide Pharmacy Service “will actively engage with regional residents to ensure safe, timely and appropriate supply of the” lethal poison.

There is no equivalent support for access to gold standard palliative care, or palliative medicines, so some people will die unnecessarily by euthanasia and assistance to suicide for lack of financial resources to access effective treatment or palliative care.

Sections 26 and 37 of the Act provide for a referral by either assessing medical practitioner to “a registered health practitioner with the appropriate skills” to assess the person’s decision-making capacity – but only at the discretion of the assessing medical practitioner if he or she “is unable to determine” if the person has the required decision-making capacity.

The medical literature shows that diagnosis with a terminal condition can adversely impact on decision-making capacity and that even specialists are not always experts in accurately determining decision-making capacity.

Evidence from Oregon shows that under a similar scheme of optional referral for assessment of decision-making capacity over the 23 years from 1997 to 2020 of legalised assistance to suicide it is likely that around 250 people with clinical depression were prescribed and took a lethal poison without being referred for a psychiatric evaluation.

So, there will inevitably be wrongful deaths by euthanasia and assistance to suicide of people in Western Australia due to errors in assessing decision-making capacity and failure to identify and treat clinical depression impacting decision-making and leading to suicidal ideation.

The Act requires practitioners who wish to participate in assessing for or administering euthanasia and assistance to suicide to undergo approved training. The approved training consists of online modules prepared by Ben White and others from the Queensland University of Technology.

Under similar approved online training modules prepared by the same team for Victoria, there is a very brief section that covers assessing voluntariness, including assessing the absence of coercion, totalling just over 5 minutes, made up of a 2 minute 20 second video and a set of slides which take a further 2 minutes 50 seconds to read.

This minimal, perfunctory “training” obviously cannot guarantee that Western Australian practitioners  will never miss the signs of coercion or abuse given the well-documented evidence of failure by professionals in Australia to identify elder abuse.

So, there will inevitably be wrongful deaths of Western Australians coerced or subtly pressured into requesting euthanasia or assistance to suicide.

Additionally, there is nothing in the Act to require any independent witness when the prescribed lethal poison is ingested when “self-administration” is chosen. This can take place weeks. Months or even years after it is prescribed without any requirement for an updated assessment of decision-making capacity, diagnosis, prognosis, suffering or voluntariness.

Without a witness required we will never know if the lethal poison was ingested voluntarily or whether the person was cajoled, bullied, tricked or even physically forced to ingest it.

Section 82 of the Act prohibits any mention of the ingestion of the prescribed lethal poison on the death certificate of a person who dies from ingesting it and Section 168 ensures that any such death is not reportable to the Coroner.

Together these provisions make it almost impossible that wrongful deaths by improper – even murderous – administration of a prescribed lethal substance will ever be identified, let alone prosecuted.

Section 12 of the Act provides that ingesting a lethal poison prescribed under the Act to be ingested to cause death is not legal suicide. This means it will not appear in the suicide statistics for Western Australia.

In Victoria, as in Western Australia, there were claims made during debate on the euthanasia legislation that it would prevent the suicides of people with terminal illness by providing them with an alternative. In Victoria, it was claimed that the new law would prevent 50 such suicides each year.

However, the number of officially recorded suicides in Victoria increased from 694 to 698 between 2017 and 2020, and if the 144 cases of ingestion of a prescribed lethal poison under the Act are counted (as they ought to be) as suicides then the total number of suicides in 2020 was 842 suicides - an increase of 21.2% on 2017.

Additionally, 31 Victorians were killed by injection of State-funded and supplied lethal poisons by a doctor who had been issued, a voluntary assisted dying physician administered permit, by the Secretary of the Department for Health and Human Services, specifically authorising the doctor to administer the poisons in order to cause the death of the person.

If these are added to the count of suicides - insofar as they are at least purported to be performed at the request of the person with the intention of causing that person's death - then the total for 2020 would be 873 - a 25.8% rise since 2017.

So, we have no reason to expect a reduction in the official suicide rate in Western Australia as a result of the legalisation of assistance to suicide and euthanasia, but, sadly, can anticipate a rise in the total number of suicides if deaths by ingestion (or administration) of a lethal poison prescribed under the Act are also counted.

Section 56 of Act allows a person to select euthanasia over assistance to suicide based on any “concerns about self-administering the substance” the person may have.

This is a much lower threshold than the Victorian Act which only allows euthanasia (practitioner administration of the lethal poison) if the person is physically incapable of the self-administration or digestion of it.

Under the Victorian regime, in July-December 2020, euthanasia accounted for more than one in five (21.3%) of the 94 deaths by lethal poison prescribed under the Act. These 94 deaths represented 0.45% of all deaths in Victoria for that period. It took Oregon, which only allows assistance to suicide and prohibits euthanasia, 20 years to reach that rate.

Where euthanasia is available as well as assisted suicide the international evidence suggests that there will be a significantly higher take up rate overall, with most people choosing euthanasia over assistance to suicide.

Accordingly, there is likely to be an even higher rate of deaths under the WA Act than in Victoria.

Legalising the direct administration of lethal poisons by medical and nurse practitioners has a profound effect on those who engage in this deadly practice, with some going on to kill other patients without an explicit request.

All the lethal poisons used so far for assistance to suicide or euthanasia, have a significant rate of reported complications. In the case of assistance to suicide there is often no health provider, or even a witness, present so many complications are unreported.

So, some Western Australians will suffer from seizures, regurgitation, long periods of time between ingestion and loss of consciousness, and long periods of time between ingestion and death. Some may experience a painful death.

Nothing in the Act requires such complications to be reported so the extent of suffering occasioned by the operation of the Act will not be known.

Unlike in Victoria, the Act also allows a medical practitioner to initiate a conversation about euthanasia or assistance to suicide without any indication that a person has even considered it or would be likely to consider it without such prompting.

Additionally, the Act attempts to conscript all medical practitioners into facilitating euthanasia and assistance to suicide by mandating that if a person makes a request for euthanasia or assistance to suicide the medical practitioner must either accept the request and begin the assessment process or refuse the request and hand them a 16 page promotional pamphlet which includes contact details for the Statewide Care [sic] Navigator Service which is funded to facilitate access to euthanasia and assistance to suicide.

These measures are also likely to lead to a higher death rate by euthanasia and assistance to suicide in Western Australia than in Victoria.

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