A FATE WORSE THAN DEATH? PERSONS LIVING WITH DEMENTIA AND ACCESS TO VAD IN AUSTRALIA
Kerstin Braun1, The University Of Southern Queensland Toowoomba 1The University Of Southern Queensland, Toowoomba, Queensland, Australia
Abstract
In Australia, Dementia is the leading cause of death for women and the second leading cause of death overall. Although Voluntary Assisted Dying (VAD) laws have now been enacted in all Australian States there are few options for those who do not wish to continue living with dementia. Persons with early-stage dementia may not qualify for VAD due to the timeframe-until-death restrictions and persons with late-stage dementia may have lost capacity thus becoming ineligible.
In contrast, Canada, the Netherlands and Belgium allow dementia patients access to VAD to varying degrees. The Netherlands has the widest approach allowing persons with advanced dementia to access assisted dying if they have an Advance Euthanasia Directive (AED) in place. AEDs are also available in Belgium but can only be acted on under narrow circumstances. In Canada, since 2021, persons with dementia can waive the final request for assisted dying if natural death is reasonably foreseeable. In June 2023, Quebec passed Bill-11 allowing advance requests for assisted dying which can be acted upon once a person becomes incapable.
This paper ponders the operation of the VAD schemes in the three jurisdictions in the context of persons with dementia by analysing available legislation, case law and scholarship. This is done with a view to assessing whether and to what extent persons with dementia who wish to do so should be granted access to VAD in Australia and whether this can be accomplished in an ethical manner while protecting vulnerable individuals.
Biography
Kerstin Braun is an Associate Professor and Associate Head (Research) in the School of Law and Justice at the University of Southern Queensland, where she is involved in teaching criminal law and procedure. Kerstin completed her Ph.D. and LL.M at The University of Queensland.
Kerstin’s research interests include criminal law and procedure and how it relates to vulnerability, especially in the context of voluntary assisted dying (‘VAD’). She is the author of several articles in Australian and international journals, which ponder different aspects of VAD in Australia and overseas. She regularly makes submissions to national and international law reform bodies in this space. Kerstin has a particular interest in eligibility criteria and modes of administration in the context of assisted dying.
Prior to commencing work as an academic, Kerstin practised law as an Associate at the Berlin office of Baker & McKenzie, Germany. Kerstin has guest-lectured in constitutional history at the University of Reggio Calabria in Italy (2006) and is a visiting lecturer in the foreign law program at the University of Bonn, Germany.