Voluntary assisted dying is generally called ‘physician assisted death’ in the USA.
I acknowledge that this is a sensitive and divisive issue. However, it is important that as many people as possible, especially in Australia, and whatever their attitude to the issue, should be informed about some aspects of the recent New South Wales (NSW) legislation, where the legislation relates to dementia and mental illness. I emphasise in advance that I am merely reporting on some of the provisions of the Act as I understand them. You can read the actual wording of the Act at:
Voluntary Assisted Dying Bill 2021 (nsw.gov.au)
The NSW parliament passed legislation in May to make voluntary assisted dying (VAD) legal under strict conditions. All other Australian States had already legalised VAD. I do not know the details of legislation in other States. The NSW Act will come into effect on the 28th November 2023.
To be eligible for access to VAD a person with dementia or other ‘neurodegenerative conditions’, the ‘disease, illness or medical condition’ must be ‘advanced, progressive and will cause death within a period of 12 months’.
The person also must have ‘decision-making capacity in relation to voluntary assisted dying’ [remember, decision-making capacity is specific to the decision being made], be ‘acting voluntarily’, and ‘not acting because of pressure or duress’.
The person is not eligible for access to VAD ‘merely because they have (a) a disability or (b) dementia or (c) a mental health impairment.
‘To avoid doubt, if a person permanently loses decision making capacity in relation to voluntary assisted dying at any time during the request and assessment process, the person ceases to be eligible for access to voluntary assisted dying’.
In my opinion, these provisions make it most unlikely that a person with dementia would have access to VAD in NSW, which to me is reassuring. A recent article* by three Dutch authors discusses two major issues: (1) ‘the conflict of obligations’ between ‘the duty to preserve life and the duty to relieve suffering’ and (2) ‘the competent request by the patient to end life’. They comment that both of these issues are particularly important and often difficult to resolve when a person seeking voluntary assisted dying has dementia.
Another important aspect of the Act is that a Health Care Worker cannot initiate discussion about VAD. They can only respond to an inquiry or request from the person. The term ‘Health Care Worker’ refers both to registered health practitioners and ‘another person who provides health services or professional care services’. Contravention of the Act could constitute ‘unsatisfactory professional conduct or professional misconduct’
The Act does appear (to me) to suggest that a medical practitioner, in discussing treatment options (including palliative care), their nature and possible outcomes, could include voluntary assisted dying in the discussion.
I won’t go into many other aspects of the Act including the process of application and assessment for VAD but note that the process is a very careful one which will be monitored by and must be reported in detail to a VAD Board.
Another important point: ‘A residential facility or health care establishment may decide that it will not provide services related to voluntary assisted dying’. However, my understanding is that the facility or establishment cannot then ‘hinder the person’s access’ … ‘to information about voluntary assisted dying’ and ‘must, if asked, allow reasonable access to the person’ by a ‘registered health practitioner or another person or a member of an official voluntary assisted dying case navigation service to provide the requested information.’
• Van Veen, Sisco M.P., Widdershoven, Guy A.M. and Beekman, Aartjan, T.F.. Physician-Assisted Death for Patients With Dementia, JAMA Psychiatry Published online May 4, 2022
https://jamanetwork.com/journals/jamapsychiatry/fullarticle/2792052