Victorian voluntary assisted dying law FAQs

Victorian voluntary assisted dying law FAQs

Summary:

Voluntary assisted dying laws came into effect in Victoria on 19 June 2019. Our medico-legal experts have created the below FAQs to help you understand the law, the processes and your obligations.

PracticesFactsheetsPatient care
11 / 07 / 2019

Voluntary assisted dying laws came into effect in Victoria on 19 June 2019. The Voluntary Assisted Dying Act 2017 allows doctors to prescribe patients a medication to cause their death, if the person meets strict eligibility criteria and has completed the request and assessment process.

Our medico-legal experts have created the below FAQs to help you understand the law, the processes and your obligations.

Patient eligibility


    • • The patient must be over 18 years of age.
    • • An Australian citizen or permanent resident, who has lived in Victoria for at least 12 months, prior to making the initial request.
    • • The patient must have the capacity to make a decision about voluntary assisted dying.
    • • The patient has an incurable disease, illness or condition that is:
    • - advanced, progressive and will cause death within six months and is causing suffering that cannot be relieved in a manner that is tolerable to the person; or
    • - a neurodegenerative disease that is expected to cause their death within 12 months.

  • There are two key roles for doctors in assessing a patient’s eligibility for voluntary assisted dying. They are:

    • • coordinating practitioner (who is the lead doctor in the process)
    • • consulting practitioner (who undertakes a supporting role).


    Both practitioners are responsible for making a formal assessment of the patient.


  • Yes, a patient in an aged care facility is eligible for voluntary assisted dying as long they meet the strict eligibility criteria.


  • Yes, people with a disability or mental illness (who meet the strict eligibility criteria) have the same right to ask for voluntary assisted dying as other members of the community. However, having a disability or mental illness alone is not a sufficient reason.


  • If you cannot determine your patient’s decision-making capacity, you must refer them to a health practitioner who has the appropriate skills and training to make the assessment (for example, a psychiatrist or neuropsychologist in the case of past or current mental illness; in the aged care context this could be a geriatrician).


  • If you cannot determine whether your patient’s medical condition (diagnosis or prognosis) meets the criteria, you must refer them to a specialist medical practitioner who has appropriate skills and training in that specific medical condition.


  • You are obliged to verify that your patient is making the decision free from pressure or coercion. Do not complete the process if you are concerned.

    There are protections under the Voluntary Assisted Dying Act for a practitioner who refuses or declines to participate or agrees to participate in the process, in good faith.

    If you suspect another practitioner is pressuring a patient in the voluntary assisted dying process you are required to notify AHPRA as soon as practicable.


  • There is nothing to prevent your patient including a request in relation to voluntary assisted dying in an Advance Care Directive, however, it is not valid and cannot be acted upon.

    People requesting voluntary assisted dying must have decision-making capacity throughout the entire process.

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Agreeing or objecting to voluntary assisted dying


  • You can choose whether or not you want to assist, you are not obliged to. Your level of involvement is up to you.

    You may be prepared to assist by providing your patient with information only.

    If you do decide to participate, you will need to complete the requisite skills and training available on the voluntary assisted dying website.

    You may also wish to contact voluntary assisted dying care navigators who can offer further support to both you and your patient. They can also find an alternative practitioner for your patient if you choose not to participate. Contact details: email vadcarenavigator@petermac.org or call (03) 8559 5823 or 0436 848 344.


  • You can choose whether or not to assist, you are not obliged to. Your assistance can include:

    • • providing information
    • • participating in the requests and assessments
    • • applying for voluntary assisted dying permit
    • • prescribing or administering medication
    • • be present at the time of administration of medication.


    You are also not obliged to find the patient a practitioner who is willing to assist.

    If you do conscientiously object it is important you do not impede or obstruct the voluntary assisted dying process.

    You may consider directing your patient to the voluntary assisted dying care navigators. Contact details: email vadcarenavigator@petermac.org or call (03) 8559 5823 or 0436 848 344


  • No, you can choose to refer your patient to another practitioner if you wish to do so. This must be done in a timely manner so there are no delays or adverse clinical outcomes, such as a decline in clinical decision making capacity.

    If you are not comfortable with referring your patient, you can advise them to get information on end-of-life care from the Department of Health or from a voluntary assisted dying care navigator. Contact details: email vadcarenavigator@petermac.org or call (03) 8559 5823 or 0436 848 344.


  • Victorian health services can choose whether or not they will participate in voluntary assisted dying. Some health services may not be in a position to offer voluntary assisted dying, for example, if they do not already provide care to people at the end of life. Other health services may have a conscientious objection to voluntary assisted dying.

    You need to adhere to the policies and procedures mandated by your employer or hospital at which you work.

    If your patient approaches you for information and you are not in a position to help in the health service you work for, you should direct your patient to the voluntary assisted dying care navigators. They have been appointed to assist patients, family and carers and health practitioners and services with the voluntary assisted dying process. They are based out of Peter MacCallum Hospital. For information or support, email vadcarenavigator@petermac.org or call (03) 8559 5823 or 0436 848 344.

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Training


  • The coordinator and consulting medical practitioner must have:

    • • completed the requisite skills and training available on the voluntary assisted dying website
    • • practised as a registered medical practitioner for at least five years, post fellowship or vocational registration
    • • have experience in the disease that is likely to cause the patient’s death (consulting practitioners must be a specialist in the disease that is likely to cause the patient’s death).


    Each medical practitioner involved in the process must complete mandatory training and meet one or more of the above criteria.

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The process for voluntary assisted dying


  • Yes, the Victorian Department of Health have created a flow chart. Download here.


    • • Patient asks for information about voluntary assisted dying.

    • • First request – patient decides they want to access voluntary assisted dying, asks to go through the steps.

    • • First assessment – a practitioner, will assess the patient to see if they meet the eligibility criteria (this doctor is the coordinating practitioner). Form 1 to be completed and uploaded to Voluntary Assisted Dying Review Board within seven days.

    • • Referral to second practitioner (this doctor is the consulting practitioner).

    • • Second assessment – medical practitioner to assess if the patient meets the eligibility criteria. Form 2 to be completed and upload to Voluntary Assisted Dying Review Board within seven days.

    • • Written declaration – Patient completes Form 3 formally requesting voluntary assisted dying, to be done in the presence of the coordinating practitioner and two other people. Uploaded to Voluntary Assisted Dying Review Board.

    • • Final request – At least 10 days (including weekends) after the first request, patient asks the first practitioner to help access voluntary assisted dying.

    • • Patient appoints a contact person – patient must appoint a person who will return unused medication to the pharmacy if the patient either dies before taking the medication or decides not to take it. Form 4 completed and uploaded to Voluntary Assisted Dying Review Board, along with Form 5 Final Review form.

    • • The coordinating practitioner applies for a permit to prescribe the medication – this will be either self-administration or practitioner administration permit. The permit form is uploaded

    • • Once approved, the permit will be issued and the medication prescribed through the Voluntary Assisted Dying pharmacy to either the patient or coordinating practitioner depending on the permit type.

  • Yes, the legislation states that a minimum of 10 days must pass between the time of the first request and the administration of the medication.


  • Your patient will express their intention to access voluntary assisted dying, by an initial verbal request. If you accept the request, you will assume the role of the coordinating practitioner. You then have seven days to notify the patient if you agree to participate or not.

    What constitutes a request for voluntary assisted dying is the patient making a clear and unambiguous request for assistance to deliberately end their life.

    Your patient must raise voluntary assisted dying with you first – you cannot initiate a discussion.


  • You will have to complete the voluntary assisted training, if you have not already done so.

    Once the training is completed, you may register for the voluntary assisted dying portal, where all the relevant forms can be accessed.


  • You can find all the relevant forms in the voluntary assisted dying portal. They are completed online.

    It’s important to note that only the coordinating practitioner can apply and submit the forms.

    The portal will pre-populate a number of the forms.


  • The first assessment will be done by the coordinating practitioner, who will complete Form 1 First Assessment Report and submit to the Voluntary Assisted Dying Review Board within seven days.

    The second assessment is completed by the consulting practitioner, who will complete Form 2 Consulting Assessment Report and submit to the Voluntary Assisted Dying Review Board within seven days


  • You conduct the first eligibility assessment and complete Form 1 First Assessment Report.

    Your assessment will be on the patient’s age, residency, decision-making capacity and medical condition diagnosis and prognosis.

    If your patient has a neurodegenerative medical condition that is expected to cause death in the next 6 to 12 months, you need to refer them to a specialist for an opinion on their condition.

    If your patient meets the eligibility criteria and you are satisfied that they are acting voluntarily and without coercion, you can then discuss the outcome with them.

    Form 1 must be submitted to the Voluntary Assisted Dying Review Board within seven days.

    You then refer your patient to an independent consulting practitioner for step two.

    It’s important to note that only the coordinating practitioner can apply for and submit the forms.


  • You conduct the second eligibility assessment and complete Form 2 Consulting Assessment Report.

    Your assessment will be on the patient’s age, residency, decision-making capacity and medical condition diagnosis and prognosis.

    If your patient meets the eligibility criteria and you are satisfied that they are acting voluntarily and without coercion, you can then discuss the outcome with them.

    Form 2 must be submitted to the Voluntary Assisted Dying Review Board within seven days.

    It’s important to note that only the coordinating practitioner can apply for and submit the forms.


  • Your patient must make a second request for access to voluntary assisted dying to you.

    The patient completes Form 3 Written declaration, which requires two witnesses and you to be present. The two witnesses must be:

    • • at least 18 years old
    • • not know or believe that they are a beneficiary under a will or otherwise going to receive a material benefit from the patient’s death
    • • not be an owner or day-to-day manager of the health facility in which the patient is being treated or where they live
    • • not be directly involved in providing health services or professional care services to the patient.


    The patient’s written declaration can follow immediately after the consulting practitioner’s determination, they do not have to wait for the assessment reports to be submitted to Voluntary Assisted Dying Review Board.


  • Your patient must make a third and final request to access voluntary assisted dying. They can make this as soon as the written declaration is made, signed and witnessed, but it must be at least nine days after their first request and at least one day after the consulting assessment is made.

    The final request:

    • • must be made to the coordinating practitioner
    • • must be made personally by the patient
    • • may be made verbally or by gestures or other means of communication available to the patient.


    If you are the coordinating practitioner you need take into consideration the patient’s ongoing decision-making capacity.


  • Yes, there are two other roles – a contact person and a witness. These roles have different responsibilities, but can be carried out by the same person.

    Contact person: your patient will need to appoint a contact person after making a final request, using Form 4 Contact person appointment form. This form can be completed at the same appointment when the final request is made.

    The contact person will be responsible for returning any unused or remaining voluntary assisted dying medication, within 15 days of the patient’s death.

    The contact person must:

    • • be 18 years of age or older
    • • accept the appointment.


    Witness: your patient will need to appoint a witness and who must be present at the time the voluntary assisted dying medication is administered.

    Their role requires them to certify in writing at the time of making the administration request that the patient appeared to:

    • • have decision-making capacity
    • • be acting voluntarily and without coercion
    • • have made an enduring request.


    The contact person and the witness can be the same person.


  • If you are the coordinating practitioner you will need to do a final review and complete Form 5 Final review form.

    This requires you to review the following for completeness:

    • • Form 1 First assessment report
    • • Form 2 Consulting assessment report form(s)
    • • Form 3 Written declaration
    • • Form 4 Contact person appointment form
    • • complete Form 5 final review form in respect of the person
    • • certify whether the request and assessment process has been completed as required by the Act.

  • A witness is required to be present at the time the voluntary assisted dying medication is administered.

    Their role requires them to certify in writing at the time of making the administration request that the patient appeared to:

    • • have decision-making capacity
    • • be acting voluntarily and without coercion
    • • have made an enduring request.


    The witness must also state you administered the medication.

    You and the witness then complete Form 8 Coordinating medical practitioner administration form and submit the form to the Voluntary Assisted Dying Review Board within seven days.


  • Yes, the contact person and the witness can be the same person.

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Communication with patient


  • No, you cannot initiate the discussion. Doing so constitutes unprofessional conduct within the meaning of the Health Practitioner Regulation National Law.


  • No, you must hold any discussions and assessments with the patient in person. They cannot be done over the telephone or via video conference. Doing so is a Federal criminal offence, under the Criminal Code (Cth).


  • Yes, you can just provide the information, but decline to be involved further. However, you cannot initiate the discussion in any situation. It is an offence under the Voluntary Assisted Dying Act to induce someone to make a request for access to voluntary assisted dying and it may also constitute unprofessional conduct within the meaning of the Health Practitioner Regulation National Law.


  • No, medical decision makers, carers or family members cannot make a request to access the voluntary assisted dying process on behalf of a patient.

    There is nothing to prevent your patient including a request in relation to voluntary assisted dying in an Advance Care Directive, however it is not valid and cannot be acted upon. People requesting voluntary assisted dying must have decision-making capacity throughout the entire process.


  • Verbal communication is not a necessity. Your patient may communicate by gestures or any other means of available to them.


  • Two Voluntary Assisted Dying Care Navigators have been appointed to assist patients, family and carers and health practitioners and services with the voluntary assisted dying process. They are based out of Peter MacCallum Hospital.

    Their primary role is to assist patients who need support obtaining information about the voluntary assisted dying process. They do not hold a list of medical practitioners who have completed the voluntary assisted dying training.

    If you feel comfortable with the navigators knowing you are participating practitioner, you can advise them of your limitations for your care provision. For example, will only look after patients in your geographical area, or will only look after patients who have had a pre-existing therapeutic relationship.

    For information or support, email vadcarenavigator@petermac.org or call (03) 8559 5823 or 0436 848 344.

    It is anticipated two more navigators will be appointed in the future, based on volume.

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How is the medication managed?


  • A permit is required.

    If you are the coordinating practitioner you must apply for a permit and you must discuss the following with your patient:

    • • anticipated time for permit application to be processed
    • • process for dispensing the medication through the Voluntary Assisted Dying State-wide Pharmacy
    • • the administration of the medication - will it be self-administered by the patient or by a medical practitioner, and the patients preference on where and when it will be administered?


    There are two types of permits depending on who administers:

    • • self-administration permit for patients who can do it themselves and digest the medication
    • • practitioner administration permit for patients who are physically incapable of self-administering or digesting the medication.


    It is an offence under section 83 and 84 of the Act to administer the medication with an incorrect permit.

    It’s important to note that only the coordinating practitioner can apply for and submit the forms.


  • When applying for the permit you will need to specify the medication you want to prescribe. Best practice is identified on the medication protocol, which will be provided once training has been completed.

    The Voluntary Assisted Dying Statewide Pharmacy Service provides a single point of advice and support about the medication.


  • You will be provided the medication protocol once you have completed the voluntary assisted dying training.


  • You may be required to administer the medication, depending on your patient’s circumstance and the permit obtained.

    If the patient has a self-administration permit, it is unlawful for you to administer the medication. To self-administer the medication the patient must be able to consume and digest 100ml of liquid within four minutes.

    The patient can ask you to apply for the practitioner administration permit on their behalf, only if you have this permit can you administer the medication.

    You must state on the practitioner administration permit that you are satisfied that the patient cannot self-administer or digest the medication and the reason why.


  • To self-administer the medication, your patient must be able to consume and digest 100ml of liquid within four minutes. If the permit specifies self-administration and they are unable to do this, you first must cancel the self-administration permit and, at the patient’s request, apply for a practitioner administration permit on their behalf.

    You must state on the practitioner administration permit that you are satisfied that the patient cannot self-administer or digest the medication and the reason why.


  • Voluntary assisted dying medications will only be dispensed by the Voluntary Assisted Dying Statewide Pharmacy Service.

    If your patient is going to self-administer, you should provide them with the contact details of the pharmacy so they can arrange for the medications to be dispensed.

    If you are going to administer, you should contact the pharmacy to arrange for the medication to be dispensed. The pharmacy will provide you with information and demonstrate how to administer the medications.


  • If your patient is going to self-administer the medication the Voluntary Assisted Dying Statewide Pharmacy Service will provide the medication directly to them. They can self-administer at a time and place they choose and they must consume and digest the whole medication themselves, within four minutes. Carers, family and friends can assist preparing the medication, but your patient must self-administer.

    If you are the coordinating practitioner and going to administer, you will need to arrange with the Voluntary Assisted Dying Statewide Pharmacy Service for medication to be dispensed. You need to confirm with your patient their preference for the time and place they wish it to take place, where a witness can be present.

    In the presence of the witness, your patient must request you to administer the medication. The request can be made verbally or by gestures or other means of communication.

    At the time of the request you must be satisfied that the patient is the person stipulated on the practitioner administration permit and they:

    • • have decision-making capacity
    • • have an enduring request to access voluntary assisted dying
    • • understand the voluntary assisted dying medication will be administered after they make the request.


    If your patient has selected several people to be present with them at the end of their life, one of these may act as witness. They must be:

    • • 18 years of age or older
    • • independent of you (not an employee at the same health service as you).


    The witness may be a family member, friend or carer.

    The witness must certify in writing at the time of making the administration request that your patient appeared to:

    • • have decision-making capacity
    • • be acting voluntarily and without coercion
    • • have made an enduring request.


    The witness must also state you administered the medication.

    You and the witness then complete Form 8 Coordinating medical practitioner administration form and submit the form to the Voluntary Assisted Dying Review Board within seven days.


  • No, there are no time restrictions. Your patient can specify their preference for the time and place they wish the administration to take place. There is also no restriction if your patient lives beyond the 12 months life expectancy.


  • Regardless of who administered the voluntary assisted medication, your patient’s appointed contact person is required to keep any remaining or un-used medication safe until its return it to the Voluntary Assisted Dying Statewide Pharmacy Service. It should be returned within 15 days of your patient’s death, the contact person can deliver it in person or the pharmacy can collect it.

    If the contact person fails to return any unused medication, within one month following the death, they could face a penalty of up to 12 months imprisonment.

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After the patient’s death


  • You can complete a Medical Certificate of Cause of Death (MCCD) or a standard death certificate, if you are aware the person was the subject of a voluntary assisted dying permit and you are:

    • • the medical practitioner responsible for the person’s medical care immediately before death, or
    • • the medical practitioner who examined the body after death.


    This may be the coordinating practitioner, or the consulting practitioner or another medical practitioner.

    MCCD is to be completed online.

    The cause of death should be the disease, illness or medical condition that was the grounds for the person to access voluntary assisted dying and the manner of death (voluntary assisted dying) should be noted.

    For the death certificate, which may be used to apply for probate or to close bank or utility accounts, you only display the cause of death (the person’s disease, illness or medical condition).

    If you are the person completing the MCCD you must then notify the coroner (see section 67 of the Act) and the Registrar of Births, Deaths and Marriages. You will need to inform them that the deceased was subject to voluntary assisted dying permit, the medical condition that was the grounds for the patient accessing voluntary assisted dying, and the means of their death. Either that they:

    • • did not use the voluntary assisted dying medication
    • • they self-administered the voluntary assisted dying medication, or
    • • they had the voluntary assisted dying medication administered to them by the coordinating medical practitioner in accordance with a practitioner administration permit.


    This can be done by calling Coronial Admissions and Enquiries on 1300 309 519. See also Voluntary assisted dying - Guidance for health practitioners, step 6, page 63 for more information.


  • When completing the Medical Certificate for Cause of Death the cause of death should be listed as the disease, illness or medical condition that was the grounds for the person’s access to voluntary assisted dying.


  • The death of your patient through voluntary assisted dying is not reportable under the Coroners Act. However, you are required to notify the coroner, after you have submitted the online Medical Certificate for Cause of Death.

    You will need to inform them:

    • • of the disease, illness or medical condition that was the cause of the person accessing voluntary assisted dying
    • • that the person had a voluntary assisted dying permit
    • • that the person did or did not use the voluntary assisted dying medication, either by self-administration or it being administered by someone else.

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Medicare


  • There are no specific item numbers on the MBS which relate specifically to voluntary assisted dying, and Medicare benefits are not payable for any services directly related to the procedure. However, services rendered for counselling or assessment about voluntary assisted dying will attract benefits . Refer to MBS Online, note GN.13.33 on Medicare Benefits Schedule for more details.

    Under the Health Insurance Act 1973, the payment of Medicare benefits for a medical service is dependent on that service being clinically relevant. For a service to be clinically relevant, it must be generally accepted by the medical profession as being necessary for the appropriate treatment for the patient to whom it is rendered. Services must also be performed in accordance with relevant State and Territory legislation.

    If you are the coordinating or consulting practitioner you will need to consider whether the service you provide satisfies the clinical relevance test and fully meets the requirements of any item.

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Legalities


  • Yes, there are penalties for offences under the Voluntary Assisted Dying Act. These include:

    • • Sections 83 (with reference to section 46 of Act) and 84 (with reference to section 45 of the Act) offences refer to non-compliance with provisions relating to medication administration.
    • • Section 85 and 86 offences refer to non-compliance with the strict rules around patient inducement.
    • • Sections 87, 88 and 90 offences relate to falsifying records or making false reports.


    If the contact person fails to return any unused medication, within one month following the death, they could face a penalty of up to 12 months imprisonment.

    However, if you practice in accordance with the Voluntary Assisted Dying Act there is protection from both civil and criminal liability.


  • Yes, you are required to notify AHPRA as soon as possible if you believe a colleague is not practising within the confines of the Act. This could be behaviour such as, initiating discussions about voluntary assisted dying with their patients, or offering or attempting to provide access to the process for patients who do not meet the strict criteria. This is an offence under section 75 of the Act.

    Failure to make a notification would be considered unprofessional conduct within the meaning of the Health Practitioner Regulation National Law.


  • Victorian medical practitioners who participate in the voluntary assisted dying process, in accordance with the rules and regulations outlined in the Voluntary Assisted dying Act, are covered under their Avant Practitioner Indemnity Insurance Policy for claims and requests for indemnity that arise from the delivery of healthcare. Cover is subject to the terms, conditions and exclusions in the policy.

    The Policy provides cover for a claim made against you in relation to healthcare in private practice, by covering your liability for compensation and your defence costs. The Policy also provides cover if you are required to respond to a complaint brought before a registration board, tribunal or complaints unit, and in criminal proceedings and coronial inquiries or inquests arising from healthcare or your practice as a healthcare professional.

    Please refer to the Product Disclosure Statement for details of cover including the policy limit, sub-limits, exclusions and conditions.

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Useful resources

Voluntary assisted dying - Guidance for health practitioners

Voluntary assisting dying – training portal

Co-ordinating and consulting medical practitioner information