Victoria scraps ‘gag clause' banning doctors from raising voluntary assisted dying with patients

The Guardian

19-02-2025

For Nick Carr, one of the hardest things to witness as a doctor is terminally ill patients in unbearable pain and knowing there is an option to end their suffering – but not being able to speak of it.
'There's been times where I've been sitting there, having to sit on my hands, having to shut my mouth because I want to say to them, 'Do you know there is the option of voluntary assisted dying?' and I can't,' Carr says.
'There's no other medical treatment where you are banned from telling someone what their legal and viable medical options are. There's no other circumstance where the patient is required to know about their options and a doctor can't tell them.
'It's quite perverse.'
But after a review of the state's laws, the so-called 'gag clause', which prevented Victorian doctors from discussing voluntary assisted dying (VAD) unless asked by their patient, will be lifted.
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The review, to be tabled in parliament on Thursday, found that while Victoria's VAD laws were 'working as envisioned', some of the safeguards in place 'impede access' to the end-of-life choice.
The gag clause was originally introduced to address concerns around coercion and the potential for people to face pressure to end their lives early.
Victoria was the first state in Australia to pass VAD laws in 2017, which came into effect in 2019. Since then, all other states and territories, except the Northern Territory, have followed suit.
As a result, the review found the once 'groundbreaking' laws in Victoria have become a 'more conservative model' when compared to other states.
While the review focused on the operation of the law, it made five recommendations, all of which the state government has accepted. This included increasing community awareness of VAD and improving access for Aboriginal and Torres Strait Islander people and multicultural communities.
In its response, the government said it would also introduce legislation to parliament this year to 'respond to lessons from the review' and 'bring Victoria's voluntary assisted dying legislation more in line with other Australian jurisdictions'.
The health minister, Mary-Anne Thomas, said 'reforming our Australian-first VAD laws' was 'critical' to ensure access across Victoria.
'We're looking to remove barriers and improve the experience for all patients, their families and health practitioners,' she said.
Scrapping the gag law to allow health practitioners to initiate conversations about VAD, is among the reforms the government is considering and would align Victoria with New South Wales, Queensland, Tasmania and Western Australia, where doctors can discuss it but must also talk about other treatment and palliative care options.
The removal of the requirement for applicants to be Australian citizens and Victorian residents is also proposed. Carr, who serves on the board of Dying With Dignity, called this a 'huge issue' for people who have lived in Australia for years but were not citizens.
He recalled the case of Julian Bareuther, his first VAD patient, who took his own life after being ruled ineligible, as he was a UK citizen despite living in Australia for 40 years.
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'He came and saw me eight days after the laws came into effect. He had pancreatic cancer, he wanted VAD but because he was not formally an Australian citizen, he was denied the option,' Carr said.
'If the government removes that requirement, it would be a huge and welcome change.'
The government is also considering changing the six-month life expectancy rule for non-neurodegenerative diseases, to 12 months – as prognoses often vary from doctor to doctor – removing the requirement for third assessments for patients with neurodegenerative conditions and shortening the time period between the first and final request for VAD.
Jane Morris, the president of Dying With Dignity Victoria, welcomed the government's commitment to reform.
'We've heard so many very sad stories from people who've faced these barriers. To think that they may be righted is just the most incredible feeling,' she said.
The Go Gentle chief executive, Linda Swan, said she was 'delighted' with the proposed changes, which will 'significantly reduce needless suffering'.
'They show the government is listening to terminally ill people and their families and the health professionals who care for them,' Swan said.
The review found that between 2019 and 2023, 1,527 VAD permits were issued. Of those, 912 people (60%) opted to use the VAD substance, while 400 others had it dispensed but didn't use it.
There was 99.3% compliance over the four years, with just 14 cases of non-compliance, half of which involved relatives not returning the VAD substance within the required 15 days.
No instances of misuse were reported.
In Australia, the crisis support service Lifeline is 13 11 14. In the UK and Ireland, Samaritans can be contacted on freephone 116 123, or email [e-mail] or [e-mail]. In the US, you can call or text the National Suicide Prevention Lifeline on 988, chat on 988lifeline.org, or text HOME to 741741 to connect with a crisis counselor. Other international helplines can be found at befrienders.org