Review of eligibility and access criteria under the Victorian voluntary assisted dying regime

Synopsis

In the Finding into the death of Geoffrey Paul McConachy with inquest[1], published on 16 December 2024, Coroner McGregor investigated the eligibility criteria currently in place for the public to access voluntary assisted dying (VAD) in Victoria. As the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) stands, the eligibility criteria include the following[2]:

1. The person must be suffering from an incurable, advanced and progressive disease;
2. The person must be experiencing intolerable suffering that cannot be relieved satisfactorily; and
3. The disease is expected to cause death within six months (or 12 months in the case of neurodegenerative conditions).

The key issue for the Coroner was whether the eligibility criteria met the intended legislative purpose of assisting those who are suffering at the end of their life.

Facts

Geoffrey Paul McConachy (the deceased) was 82 years old when he was found deceased at his home on 18 September 2023.[3] He was married to his wife for 56 years, who had passed away in 2016.[4] Together, they had two sons.[5]

In late 2022, the deceased visited one of his sons and grandchildren in Switzerland. During the trip, he suffered a stroke that profoundly impacted on his speech and contributed to the development of a chronic depressive episode. His symptoms included a loss of interest in activities of daily living and he openly spoke about suicide. He had requested that one of his sons obtain information on voluntary assisted dying. He also discussed the possibility of flying to Switzerland to legally access euthanasia.[6]

On 18 September 2023, the deceased was pronounced dead at home.[7] The post mortem examination revealed a horizontally oriented, linear incised wound measuring 6cm in length on the inner aspect of the right leg below the knee. The wound had incised a large artery.[8] This was accepted as the cause of death.[9] Toxicology reports identified the presence of anti-depressants, citalopram and mirtazapine at therapeutic levels.[10]

Eligibility to access VAD in Victoria

The deceased would not have been eligible to access VAD in Victoria on the basis that he had a greatly reduced quality of life but no terminal prognosis.[11]

Since the VAD Act came into effect on 19 June 2019, Coroner McGregor identified nine other cases in Victoria (not named) in which the coroner had found that the deceased had made attempts to access VAD but was determined not to be eligible because their disease did not meet the relevant criteria.[12] In eight of these, the deceased took their own life, and in the other, the coroner was unable to determine the deceased’s intent, but contemplated that suicide was a possibility.[13] The common trend across all nine instances was the experience of an irreversible decline in the deceased’s health and a very low quality of life (invariably accompanied by persistent pain).[14] However a doctor was unable to give a prognosis of death within six months.[15]

One such case was the Finding into death without inquest of Julian Bareuther[16] where the deceased was refused access to VAD because, despite having resided in Victoria for 40 years and meeting the clinical criteria for VAD, was not an Australian citizen and was therefore ineligible.[17] In the case of Bareuther, Coroner Byrne  quoted the statement of a doctor who tried to assist the deceased:

“..he was hugely relieved when I told him I could act as his coordinating doctor for VAD, and it was as if an enormous burden had been lifted from him…I had to tell him I was unable to help him in the only way he wanted and as a result he ended up committing suicide.”[18]

Coroner Byrne thereafter commented that whilst acknowledging the rationale for denying access to VAD in the case of Mr Bareuther, it was difficult to not sympathise with his plight and considered whether the process could include some level of discretion.[19]

A recurring theme in these cases was the impact that VAD refusal had on the deceased. In particular, family members often reported that when people believed they would have access to VAD, they maintained hope that they would be able to exercise control over how they died. When their access to VAD was refused, their consequent despair and frustration contributed to their decision to take their own life.[20]

Coroner McGregor touched on the reasons why Victorian coroners have not made recommendations as to how the VAD Act functions and whether it meets the needs of the Victorian community. He provides the sentiment that Victorian coroners are of the view that “the debate regarding the dignified end to life is primarily a matter for the executive and legislative arms of government, and involves conflicting legal, ethical and clinical considerations.”[21]

Criticisms of the current Victorian system and recommendations

Coroner McGregor commented that Victorian coroners have had and continue to have a longstanding interest in VAD as a means to assist those with irreversible deterioration in their physical health.[22] In the early stages of the VAD legislative development, the Coroners Court of Victoria submitted to the Inquiry into End of Life Choices a summary of data of suicide cases where the deceased took their life after experiencing an irreversible deterioration in physical health.[23] This data was not restricted to terminal illness, but captured those that had a significant impact on daily living, such as irreversible chronic disease not expected to cause death and permanent physical incapacity and pain resulting from injury.[24] The Victorian Parliament subsequently resolved to restrict VAD access to terminal diagnoses.[25]

Key takeaways

Coroner McGregor is of the view that coroners are in a unique position to identify and investigate whether the VAD process meets the needs of the Victorian community.[26] In this instance, the process failed to assist people such as the deceased, who experienced an irreversible decline in their health and wished to exercise autonomy over the timing and manner of their death. His Honour noted his belief that he had “a duty and responsibility to notify such instances to the bodies responsible for administering Victoria’s voluntary assisted dying process.”[27] Coroner McGregor therefore distributed his finding to the VAD Review Board and asked it to consider this finding as part of a developing body of evidence and to consider opportunities to improve the operation of VAD in Victoria and how it falls short of meeting the expectations of Victorian who are experiencing irreversible decline in their health and wish to exercise choice over the timing and manner of their deaths.[28] We await consideration by the VAD Review Board and the executive and legislative arms of government on whether the eligibility criteria for VAD should be broadened to include an irreversible decline in health that is not expected to cause death.