Legislative Context
VAD legislation has been enacted in all Australian States[1] and has been prefaced on stringent preconditions related to eligibility and access.
Pursuant to section 35 of the Act, a patient who is ordinarily a resident in Victoria may make a written declaration requesting access to voluntary assisted dying if they are assessed as eligible. The written declaration must, amongst other things, be signed by the patient in the presence of 2 witnesses and the co-ordinating medical practitioner.
Background
In or around February 2020, a patient consulted Dr Carr seeking access to VAD. The patient elected to make a written declaration requesting access to VAD, which was completed in the presence of Dr Carr and 2 witnesses on 6 February 2020. Due to oversight and distraction, the patient failed to sign the written declaration.
After being notified that the written declaration had omitted the patient’s signature, the VAD Review Board contacted Dr Carr and requested that he arrange for the patient to sign the written declaration.
The patient subsequently reattended on Dr Carr on 11 February 2020 and signed the written declaration without the 2 witnesses present. The patient backdated their signature to 6 February 2020, and the VAD forms were subsequently resubmitted and approved. The patient brought about their own death on 1 April 2020.
The VAD Review Board subsequently conducted a review and identified that the requirements of the Act had not been complied with as the signing of the patient’s declaration had not occurred in the presence of the 2 witnesses and Dr Carr on 6 February 2020. As such, Dr Carr had falsely declared that the requirements of the Act had been complied with. The VAD Review Board referred Dr Carr to the Medical Board of Australia (the Board).
Dr Carr accepted full responsibility for the breaches of the Act and admitted that his conduct constituted professional misconduct. The Board and Dr Carr proposed a reprimand and fine of $12,000.00.
Outcome
The VCAT agreed with the characterisation of the conduct as professional misconduct and the proposed determination put forth by the parties.
We observe that there was no suggestion that the patient was ineligible for VAD or that she had acted under coercion. The VCAT commented that if there had been any such suggestion then Dr Carr’s conduct would have been viewed as much more serious.
The VCAT made the following comments in respect of why strict compliance with the Act was required:
- The Act was drafted to find a proper balance between respecting the rights of persons who wish to have control over their death and ensuring that a patient has a full understanding of the process and consents to the process without coercion.
- Accordingly, the Act imposes strict rules regarding the eligibility and process of VAD, and compliance with these requirements is vital to protect the rights of the patient and public confidence in the VAD process.
- Practitioners are gatekeepers to the VAD process and have an obligation to ensure that the processes are carried out to the letter, and as such, the completion of VAD documentation carries the highest level of professional responsibility.
- VAD documentation has both an important legal aspect and a medical one. The practitioner has a solemn responsibility to ensure that the patient is making their request voluntarily and with full understanding of the implications (which Dr Carr accepted was evidenced by the written declaration of the patient).
The VCAT acknowledged that whilst there were several safeguards in the Act, it was the Dr Carr that had the key responsibility to ensure that the Act was complied with, including observing a patient signing the written declaration.
The VCAT accepted the false declaration by Dr Carr was not deliberate, and in the circumstances agreed with the proposed fine of $12,000.00 and reprimand. Further education was deemed unnecessary.
Implications
The Victorian Act has similar requirements to WA’s Act in respect of, amongst other things, eligibility and written declarations by patients.
Accordingly, the case should reinforce to practitioners that VAD documentation (no matter what State you are in) must be completed with full focus to the exclusion of all other distractions given the need for strict compliance with the Act.
For the community, the case also serves as a reassurance that oversight and monitoring of the VAD process is happening in real time, and they can, therefore, have confidence in the process going forward.
To read the decision in Medical Board of Australia v Carr (Review and Regulation) [2023] VCAT 945, click here.
[1] Note, the NSW legislation does not come into effect until November 2023.
