“Delay after delay is not necessary. The issues are understood… table amendments to the VAD Act now and seek to have them passed in time to facilitate better legislation coming into effect in November,” writes political columnist MICHAEL MOORE. 

How long does the ACT have to wait for the implementation of the best possible Voluntary Active Dying (VAD) legislation? 

There are three choices that politicians make in dealing with any decision – support, oppose or delay. 

Delay is the most common and effective tool when there are doubts or concerns. Delay continues being deployed in spades on amendments to the VAD legislation.

A submission to an Assembly Committee more than a year ago nailed the issue. “Like all legislation, the Bill may not be perfect”, argued Katarina Pavkovic. “But it is a perfect next step to enabling our people the right to die with dignity and not suffer intolerably at the end of their lives.” 

More than 30 years after original VAD legislation was introduced into the ACT Legislative Assembly, the ACT’s Voluntary Assisted Dying (VAD) Act 2024 passed under the deft leadership of Tara Cheyne.

The legislation was not perfect and, with new MLAs in the Assembly, it can be reconsidered and improved.

However, it is not necessary to delay amendments to improve the legislation that comes into effect in November.

The need for amendment is outlined by Dr David Swanton, convenor of Exit International’s ACT Chapter: “This will provide relief to many people who are suffering, but there are many others who will not be helped by the VAD Act as it stands”.

Increased eligibility for people to access VAD is at the nub of the concerns. Sam Delaney, the president of Dying with Dignity, raised the issue of people who lose decision-making capacity. The legislation, he says, should allow individuals “to include their wishes about voluntary assisted dying in some form of Advance Care Plan”.

Advocates for better VAD legislation are now seeking support for such amendments from across the Assembly. 

Dr Marisa Paterson is an MLA who has vigorously pursued this matter since the original bill was considered in the Assembly. At the time of consideration of the original legislation, she put a motion identifying two gaps with adverse outcomes. 

Her first concern was “individuals will often choose to end their life earlier than they would like, because they are concerned about losing capacity and becoming ineligible”. 

Second, the challenge is “the individual is often suffering intolerably, without capacity”. This is because “when an individual does lose capacity, and is no longer eligible, this often leaves families very distressed as they can no longer support their loved ones who wish to access VAD”.

Delay was employed by the government. An investigation was launched rather than allowing Dr Paterson to put amendments to the legislation as part of the debate.

Ministers Cheyne and Rachel Stephen-Smith have now released the findings of their consultation into “one of the most complex and sensitive issues in voluntary assisted dying (VAD)”. The process examined: “What happens when a person approved for VAD loses decision-making capacity before the process is completed?”

In a combined press release they excused the long delay for amendments to the legislation that would address these two issues. The government process even recognised the distress of “people who endure unnecessary suffering because they fear losing the ability to make a final decision, as well as the emotional burden carried by families”.

As part of the launch, Cheyne said: “The contribution provided today furthers the conversation that the community wants us to have about the intersection of dignity, autonomy and loss of capacity.”

She excuses the delay this way: “The ACT’s VAD scheme is unique. Commencing it and closely monitoring its operation is essential in ensuring and building community confidence in the scheme, and will give us an understanding of how the scheme may address some of these issues already. This will be a sound place from which to continue this work”.

Even amongst Liberal voters in the ACT, there is 78 per cent support for amendments to facilitate dementia patients making an advanced directive regarding VAD. Where will the Liberal MLAs stand on these amendments?

Delay after delay is not necessary. The issues are understood. They were canvassed by the Assembly committee, and now by the further government report. A positive approach would be to table amendments to the VAD Act now and seek to have them passed in time to facilitate better legislation coming into effect in November.

Michael Moore is a former member of the ACT Legislative Assembly and an independent minister for health. He has been a political columnist with “CityNews” since 2006.