As we get closer, to the vote on 29 November on Kim Leadbeater’s Terminally Ill Adults (End of Life) Bill 2024-25, many MPs are saying that they support a change in the law if strict safeguards are in place.

However, in countries where assisted suicide is legal so-called ‘safeguards’ are not protecting vulnerable people. This is the case in Australia, where assisted dying laws came into operation in the state of Victoria in 2019, with other states following from 2021-2023.

Assisted dying (AD) laws in Australia permit both assisted suicide (where lethal drugs are supplied by the doctor and people take them when they choose) and euthanasia (where a doctor or other health practitioner gives the lethal injection).  In this article we used ‘AD’ to denote both.

In the first of two articles we look at unsafe safeguards around: witnesses, suicide drugs, coercion and decision-making.

Unsafe safeguard around witnesses

Having a witness present at death by AD may seem to be a reasonable safeguard for the patient.  However, in cases of assisted suicide no independent witness is required to verify that:

• there is no coercion,[1]
• the person’s decision is voluntary, and
• the person has mental capacity and still wishes to go ahead with the suicide.

 By contrast, for cases of euthanasia a witness is required when a doctor gives the fatal injection, to protect the doctor rather than the patient.

Unsafe safeguards around keeping suicide drugs

Australian laws have safeguards to ensure that drugs for use in assisted suicide are kept securely by the patient. The patient must have a designated contact person who, in the event that some drugs remain after the suicide or they are not used at all, is obliged to return the drugs. There are three dangers here:

• If the patient loses capacity, the drugs in the locked box could be used either accidentally or deliberately by others.
• The designated contact person could claim that the drugs were used, when in fact the patient died of their condition. There is no legislative requirement for the contact person to provide evidence that the drugs were used.
• The Victorian Act imposes a severe penalty if unused drugs are not returned, creating an incentive to hide the fact if unused drugs remain.

Unsafe safeguards against coercion

While coercing someone into AD is a criminal offence in Australia, detecting and proving that a patient was coerced relies on the doctors involved. This is extremely difficult to do, and moreover cannot be investigated after AD has taken place and the person is dead.

Another serious risk is the time lapse between dispensing the lethal drugs and the patient taking them. The Victorian Act allows drugs to be kept for an unspecified period of time. Remembering that under this Act there is no legal requirement for a witness, dangers include:

• No one knows the circumstances of the death.
• No one knows who was present at the death and what role they may have played.
• No one knows if an undecided patient was coerced – perhaps by someone with an interest.
• No one knows if someone else helped the patient take the drugs or actually administered them, possibly covertly.
• And the only person who could reveal this information is now dead.

Unsafe safeguards around decision-making capacity

For a patient to be eligible for AD, he or she must have decision-making capacity. Problems arise because:

• Deciding on decision-making capacity relies on doctors who may not have the skills to assess this.[2]
• There is no requirement in the Victorian Act for any psychological assessment of capacity for people with mental health disorders which may compromise capacity when the person also has a terminal condition.
• The personal values of physicians can influence decision-making capacity, depending on which doctor is doing the assessing.[3] This is not an objective safeguard.
• A patient can make an AD decision with full mental capacity, then lose that capacity and die by lethal drugs when their mental capacity is compromised or absent.