Monash researcher finds Voluntary Assisted Dying Act has a “gag clause”

Registered health practitioners may find themselves unable to discuss lawful voluntary assisted dying with their patients. Image credit: Unsplash.

Section 8 of Victoria’s Voluntary Assisted Dying Act is an “unprecedented, unwarranted infringement on communication between health practitioners and their patients”, a Monash University researcher and her colleagues have found.

The authors of an Ethics and Law article published by the Medical Journal of Australia today included the findings of Monash PhD candidate Courtney Hempton of the Monash Bioethics Centre in the Faculty of Art’s School of Philosophical, Historical, and International Studies, led by Dr Bryanna Moore (Baylor College of Medicine) and co-authored with Dr Evie Kendal (Deakin University).

In November 2017, Victoria passed the Voluntary Assisted Dying Act 2017 (Vic), legalising a model of voluntary physician-assisted death for adults at the end of life who meet a number of criteria, including rigorously assessed diagnostic and prognostic requirements.

The Act came into effect on 19 June 2019 and section 8 details a new legal prohibition specific to the practice of voluntary assisted dying.

It states:

1. A registered health practitioner who provides health services or professional care services to a person must not, in the course of providing those services to the person—

a) initiate discussion with that person that is in substance about voluntary assisted dying; or

b) in substance, suggest voluntary assisted dying to that person.

Ms Hempton and her colleagues found section 8 prevents all health practitioners registered with the Australian Health Practitioner Regulation Agency (AHPRA) from initiating a discussion of voluntary assisted dying with their patients.

The authors concluded, therefore, that section 8 is a “gag clause”.

Breaching the requirements of section 8 will be considered ‘unprofessional conduct’, as regulated by the Health Practitioner Regulation National Law.

“Breaches may result in AHPRA revoking a health practitioner’s licence,” wrote the authors in their paper Victoria’s Voluntary Assisted Dying Act: navigating the section 8 gag clause.

The authors referred to the Ministerial Advisory Panel’s report on Voluntary Assisted Dying, which compared the then-proposed legislation with other jurisdictions' models of physician-assisted death.

The Panel found no other jurisdictions prohibited health practitioners from initiating discussions about voluntary dying.

The authors therefore deduced that making a mandate against health practitioners initiating discussion with patients was “unnecessary”.

They were also concerned section 8:

  • Could create tension between core professional, ethical and legal obligations contained in various codes of conduct
  • Could lead to conflicting messages and conversation in the industry about how to approach an end-of-life discussion
  • Places a burden of prior knowledge of voluntary assisted dying on patients

They further discussed that the gag clause could prevent Victorians from accessing voluntary assisted dying as a lawful health service, and makes it difficult for doctors to adhere to the Medical Board of Australia’s code of conduct which emphasises providing treatment options based on the best available information with honesty as a core guiding principle.

The article is open access for one week:

Bryanna Moore, Courtney Hempton, and Evie Kendal. (2020) Victoria's Voluntary Assisted Dying Act: Navigating the section 8 gag clause. Medical Journal of Australia.

https://www.mja.com.au/journal/2020/212/2/victorias-voluntary-assisted-dying-act-navigating-section-8-gag-clause

doi: 10.5694/mja2.50437