Ban on doctors raising VAD with patients could be scrapped
The legal ban on Victorian doctors initiating conversations about voluntary euthanasia will be reviewed amid concerns the so-called ‘gag law’ is creating a two-tier system.
Victoria was the first state to legalise voluntary assisted dying (VAD), back in 2019, with Premier Daniel Andrews calling it “the most conservative model in the world”.
Part eight of the legislation warns that doctors who raise the subject of VAD with their patients will be referred to AHPRA for unprofessional conduct and that they may only provide information “on the patient’s request”.
NSW, Queensland, WA and Tasmania have gone on to pass their own VAD laws without the same gagging clause, although SA — which will launch its own VAD scheme on 31 January — has copied the Victorian provision.
Julian Gardner, the chair of Victoria’s VAD Review Board, told The Australian that the clause was up for evaluation as part of a planned four-year review of the legislation scheduled for July this year.
“The restriction on medical practitioners was put in to recognise that many people have a lot of faith in their doctor … that if the doctor raises it, they may feel some undue pressure to go along with that option,” he told the newspaper late last month.
“On the other hand, if the doctor has an ethical responsibility to ensure that somebody makes an informed decision — and autonomy is at the heart of this legislation — you can only make an informed decision if you’re aware of all the options.
“It is a balancing exercise. And I think those competing arguments will be something that’s looked at in the review.”
Melbourne oncologist and VAD provider Dr Cameron McLaren told Australian Doctor that the gag provision was an outsized source of confusion despite being a small issue in terms of access to VAD.
“I think the actual awareness of what the gag clause means, and what you can and can’t say, hasn’t been discussed or educated too much through the medical population,” Dr McLaren said.
“If a patient says, ‘I just wish there was a way to bypass all of this,’ that’s them raising the topic of assisted dying in substance; that would be for me clearance to then say, ‘It sounds as though you’re talking about assisted dying. Is that something you’d like to talk about?’
“Whereas many doctors would say, ‘Oh no, they haven’t actually said assisted dying.’ They think patients have to actually say those words.”
He added that, without doctors raising the subject, patients who spoke poor English or were not across news or government information sources may not even know the system existed.
“One of the big concerns we have is the over-representation of the Caucasian, well-educated, English-speaking patients who pursue VAD,” he said.
“The concern is that patients of non-English-speaking background often get their information about healthcare options through their doctor.
“They don’t get it by reading news articles; they don’t get it by general discussion about these sorts of things.
“I think lifting the gag would go a long way to make sure there is equitable access among people.”
But he added there were “bigger issues” with the VAD legislation that needed to be addressed first, with the gag being a “workable problem”.
He pointed to the requirement that patients have Australian citizenship or permanent residency in Victoria, saying he knew multiple patients who had lived in Australia for years but had not gained permanent residency.
Similarly, the Victorian laws mandated that patients must have lived in the state for at least 12 months, as a safeguard against so-called ‘VAD tourism’.
“But now that we’ve got every other state with VAD legislation, the territories are free to debate and introduce their own legislation as well — so the purpose of that clause has gone; we don’t need it anymore,” Dr McLaren said.
“It has particular implications for patients in border towns, where they may have their healthcare in one state but reside in another and they have to work out what they are eligible to access.
“Just because they live on the NSW side of the border, does that mean that they should not have the same access as someone who lives across the river who gets chemo in the chair next to them?
“These are the things that affect people at a practical level in terms of access.”
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