Voluntary Assisted Dying Bill 2021 – NSW Parliament

By Rodney Lewis

I think there are some matters which are not adequately covered in the Bill. 

In relation to the review of decisions, which is the opportunity for challenging, if necessary, the decisions of  the medical practitioners, a person who may bring the matters before the Tribunal includes [definition of  ‘eligible applicant’ s.108]: 

(a) a patient who is the subject of a decision [by the Tribunal under] section 109(1)(a)–(d), or (b) an agent of a patient … or 

(c) a person who the Tribunal is satisfied has a special interest in the medical care and treatment of  [the person]. 

The matters which are the subject of the application for review are [s.109]: 

(a) a decision of a patient’s coordinating practitioner in a first assessment that the patient— (i) … [residence qualification]; 

(ii) has or does not have decision-making capacity in relation to voluntary assisted dying, or (iii) is or is not acting voluntarily and not [acting -rl] because of pressure or duress, 

(b) a decision of a patient’s consulting practitioner in a consulting assessment that 

the patient— 

… 

(iii) is or is not acting voluntarily and is or is not acting because of pressure or duress, 

(c) a decision of a patient’s coordinating practitioner to make a statement in a final review form  certifying that [s/he] is satisfied the patient— 

(i) has or does not have decision-making capacity in relation to voluntary assisted dying, or (ii) … is or is not acting voluntarily and is or is not acting because of pressure or duress, 

(d) a decision of the Board to refuse an application for a voluntary assisted dying 

substance authority in relation to a patient. 

The identity of an ‘agent’ is in my opinion, obscure, in this context. It means ‘a person who acts on  behalf of the patient’ [Schedule 1-Dictionary]. 

It is unclear from the legislation who may be an “agent”. We have broad legal definitions of who may  be an agent, but here we have someone who may be so ill and focussed on unbearable pain, as to be  unable to make those kinds of decisions.  

Since the Bill is concerned only with capacity to understand ‘voluntary assisted dying’, the capacity  to understand who an agent is and their delegated functions, will likely be different. It is the same  capacity required to understand the making of a power of attorney [see Szozda v Szozda [2010] NSWSC  804].  

Will a written agency appointment be required? Is a solicitor an agent? Will a solicitor be denied  leave to appear if capacity to instruct is in doubt? The Bill makes a point about the capacity which  the person is required to have and that is, to understand the nature and effect of voluntary assisted  dying.  

In my experience in the Guardianship Division of NCAT and the Guardianship Tribunal before that, it  is sometimes essential, in the interests of the subject person and in the interests of justice and 

fairness to hear from family members who seek to be heard, especially when they have views and  experience which are not necessarily shared by the rest of the family. Family members seem to have  no status in this Bill, yet are among those whose views may be critical as to whether there is present,  any pressure or duress. 

Consider the circumstances which might exist and which may lead a medical practitioner to overlook  or mistake conduct by another person impacting upon the subject person, in the manner described  as pressure or duress. The definition found in the Bill of those words is “abuse, coercion,  intimidation, threats, undue influence from another person or other pressure or duress”. 

The Bill makes no attempt to guide the medical practitioners in how they may discover the facts and  circumstances which might show that any pressure and duress may have occurred. There is no  reference to making inquiries or the necessity or otherwise of consulting with family members. 

For those reasons, I suggest that an extra qualifying definition of an ‘eligible applicant’ should  include ‘any person who has a genuine interest in the welfare of the person’. That will enable not  only family but in cases where there is no family, others such as friends to make an intervention if  they have evidence of ‘pressure or duress’.