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

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.

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, told reporters scrapping the gag law to allow health practitioners to initiate conversations about VAD is a priority.

“This will keep us in step with other states and ensure that this important end-of-life care choice can be discussed between people who have a life limiting condition and their medical practitioners,” Thomas said.

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.

“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 looking to change the six-month life expectancy rule for non-neurodegenerative diseases, to 12 months – as prognoses often vary from doctor to doctor – remove the requirement for third assessments for patients with neurodegenerative conditions and shorten the time period between the first and final request for VAD.

All will be subject to consultation and once legislation is introduced to parliament, Labor MPs will be allowed a conscience vote, Thomas said.

The Coalition indicated it would also allow a conscience vote on the matter.

Labor MP for Pakenham, Emma Vulin, who was diagnosed with motor neurone disease last year, said the changes would make the process more accessible, particularly for regional Victorians.

“We have to remember it is an option, it’s a choice, and this is definitely something that I will be considering during my journey,” Vulin said.

Jane Morris, the president of Dying With Dignity Victoria, also welcomed 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.