Abstract
In June 2019 Victoria became the first state in Australia to permit “voluntary assisted dying” (VAD), with its governance detailed in the Voluntary Assisted Dying Act 2017 (Vic) (“VAD Act”). While taking lead from the regulation of medically assisted death practices in other parts of the world, Victoria’s legislation nevertheless remains distinct. The law in Victoria only makes VAD available to persons determined to be “already dying”: it is expressly limited to those medically prognosed to die “within weeks or months.” In this article, we discuss the emergence of the Victorian legislation across key formative documents. We show how, in devising VAD exclusively for those “already at the end of their lives”, the Victorian state mobilizes the medico-legal category of the already dying. We argue that this category functions to negotiate a path between what are seen as the unacceptable alternatives of violent suicide on the one hand, and an unlimited right to die on the other. Further, we argue that the category of the already dying operates to make medical practitioners the gatekeepers of this new life-ending choice and effectively limits the realization of autonomy at the end of life.
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Notes
One thousand and thirty-seven written submissions were made to the Inquiry; 925 from individuals and 112 from organizations. Further details regarding the public submissions are outlined in the Committee’s final report (see Parliament of Victoria Legislative Council Standing Committee on Legal and Social Issues 2016).
The Panel identified seven rights elaborated in the charter that it considered particularly relevant to VAD, namely the rights to (1) equality, (2) life, (3) protection from torture and cruel, inhuman, or degrading treatment, (4) privacy and reputation, (5) freedom of thought, conscience, religion, and belief, (6) protection of the best interests of the child, and (7) liberty and the security of person” (State of Victoria Department of Health and Human Services 2017a, 43, 210−215).
The Northern Territory was the first jurisdiction in the world to introduce legislation to provide for medically assisted death. The Rights of the Terminally Ill Act 1995 (NT) was in effect briefly (1 July 1996 to 27 March 1997) before the commonwealth government passed the Euthanasia Laws Act 1997 (Cth), which in effect prohibits Australian territories (Australian Capital Territory, Norfolk Island, and the Northern Territory) from permitting “euthanasia.” Significantly, though, the states of Australia (Queensland, New South Wales, Victoria, Tasmania, South Australia, and Western Australia) are not bound by the Euthanasia Laws Act 1997 (Cth) and retain the authority to independently permit the practice of “euthanasia.” At the time of writing, various jurisdictions across Australia are considering the issue of VAD, with many following a similar process to Victoria (i.e. beginning with a state-level inquiry into “end-of-life choices”). Most definitively, following an inquiry (Parliament of Western Australia Joint Select Committee on End of Life Choices 2019) and subsequent Ministerial Expert Panel on Voluntary Assisted Dying ( 2019), the state government in Western Australia passed the Voluntary Assisted Dying Act 2019 (WA), which will come into effect in approximately mid-2021.
In cases of death by means of VAD, the “cause of death” will be registered as the underlying disease—VAD will be recorded as the “manner of death” but not the cause (State of Victoria Department of Health and Human Services 2019).
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Hempton, C., Mills, C. Constitution of “The Already Dying”: The Emergence of Voluntary Assisted Dying in Victoria. Bioethical Inquiry 18, 265–276 (2021). https://doi.org/10.1007/s11673-021-10107-1
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DOI: https://doi.org/10.1007/s11673-021-10107-1