August 7, 2019
A 61-year-old woman passed away in a nursing home in Bendigo in July from metastatic breast cancer, one month after Victoria’s assisted dying laws came into effect. Her death has been acknowledged as the first to utilise the state’s Voluntary Assisted Dying Act.
This article from respected industry contributor, Jeffrey Scott, explores the potential minefield that may now emerge when considering the meaning of ’assisted dying’ in relation to life insurance policy suicide clauses…
On 5 December 2017, Victoria was the first State in Australia to pass legislation permitting voluntary assisted dying1. This legislation came into operation on 19 June 2019.
This article examines the implications of Voluntary Assisted Dying Act 2017 on life insurance policyholders in the State of Victoria. Western Australian and Queensland governments have indicated that they intend on introducing similar voluntary assisted dying legislation in 20192.
What are the criteria to access voluntary assisted dying?
The person must be at least 18 years old, an Australian citizen or permanent resident, and have lived in the State of Victoria for at least 12 months. The person must have an incurable disease, illness or medical condition which is causing intolerable suffering, and is expected to cause death within 6 months, or is a neurodegenerative condition that is expected to cause death within 12 months.
Process: how can voluntary assisted dying be performed?
Under the legislation the approval and voluntary assisted dying process is quite regimented.
The person suffering the incurable medical condition must first apply to a medical practitioner with at least five years post fellowship experience (GP or specialist), and who must be an expert in the medical condition the patient is suffering from.
Within seven days of the request, the medical practitioner must inform the patient if they are available and willing to assist with the voluntary assisted dying process. The medical practitioner must inform the patient of the various options and alternatives prior to determining eligibility. These include:
- Treatment options and likely outcomes
- Risks of taking the prescription for the purposes of death
- Confirmation that the patient has the right to change his or her mind at any time if they do not wish to undergo the voluntary assisted dying process
The medical practitioner must also explain to the family members of the patient each of the steps of the voluntary assisted dying process.
The medical practitioner must ensure the patient has the decision-making capacity to make an informed decision, understands the information given to them, and they have not been pressured or coerced into the voluntary assisted dying process.
The patient must then make a signed declaration in the presence of the two witnesses and the co-ordinating medical practitioner. The witnesses must be at least 18 years old and cannot benefit financially from the patient’s death or be a beneficiary from the patient’s estate. No more than one witness may be a family member of the patient. A contact person must also be nominated by the patient.
The contact person must be at least 18 years of age and has the responsibility of returning any unused or remaining voluntary assisted dying substance to the dispensing pharmacy within 15 days of the patient’s death. The contact person cannot be one of the witnesses of the signed declaration.
The voluntary assisted dying substance must be prescribed by a medical practitioner and dispensed by a pharmacist. The voluntary assisted dying substance may be a poison, controlled substance, or drug of dependence prescribed under the Act for the purposes of causing the patient’s death. The substance must be stored in a locked box by the patient after it is dispensed by the pharmacist. The pharmacist must inform the patient how to administer the prescription and how much will be necessary to facilitate the assisted dying process.
Who can administer the prescription to the person?
There are only two people who may apply for a voluntary assisted dying permit under the Victorian legislation: the patient and the patient’s medical practitioner. The two types of voluntary assisted dying permits are:
- A self- administration permit
- A practitioner administration permit
A practitioner administration permit is only allowed if ‘…the person is physically incapable of the self-administration of digestion of the voluntary assisted dying substance.’3
This means that in most circumstances an individual who undertakes voluntary assisted dying will have self-administered the prescription to end their life.
Most life insurance companies have clauses in their life insurance contracts that exclude suicide, normally for either the first 12 months or 13 months from policy commencement, but in particular circumstances for the duration of the contract.
The term “suicide” is rarely defined in either the Product Disclosure Statement (PDS) or the Policy Document. In these circumstances, the definition of suicide reverts to the common meaning of the term utilised in Australian society. Thus, it reverts to the definition contained within the Macquarie Dictionary4, where Suicide is defined as:
- Intentional taking of one’s own life
- Someone who intentionally takes their own life
- To kill oneself intentionally
In most circumstances, based upon the fact that under the Voluntary Assisted Dying Act 2017, the life insured will be administering the voluntary assisted dying substance to themselves, it is possible that the life insured has, ‘…intentionally taken their own life’ and committed suicide.
Depending upon the duration of the suicide exclusion contained in the policy document (12 months, 13 months, or permanent), it may preclude the life insured’s beneficiaries from receiving any benefits under the contract.
What is the chance of this occurring?
There are no statistics in relation to the number of Australians who suffer a terminal illness each year, but as a proxy there were 77,369 hospitalisations for palliative care in 2016-20175. Palliative care is intended to ‘…improve the quality of life of patients with an active, progressive disease that has little or no prospect of cure,’6 and is also referred to as ‘hospice care’ or ‘end of life care.7
It would be rare for a person to be symptom free when they purchased a life insurance policy and then suffered a terminal medical condition within 12 months of purchase. With that said, this author is aware of two individuals who died from terminal medical conditions within 12 months with no previous medical history: one person who died from motor neurone disease within nine months of initial diagnosis, and another person who died from Stage 4 cancer that metastisized to their bones within nine weeks of the initial cancer diagnosis.
Do life insurance companies need to change their definitions?
Where the patient (life insured) self-administers the voluntary assisted dying substance that results in their death, it will be a suicide. In many circumstances, though, life insurance policies will pay a terminal illness benefit if particular circumstances occur prior to the life-insured’s death.
Most life insurance policies have a very specific definition of terminal illness where these criteria need to apply:
- Two medical practitioners much each certify in writing that the life insured has an injury, sickness, disease or disorder that, despite reasonable medical treatment in the life insured’s circumstances, is likely to result in their death within 24 months from date of certification
- At least one of the medical practitioners is a specialist practising in an area related to the life insured’s injury, sickness, disease or disorder.
The ‘good news’ is that in order to access the voluntary assisted dying process, the patient must have less than six months to live, or less than 12 months to live for a neurodegenerative condition. The ‘bad news’ is that the patient is only required to receive approval from one medical practitioner, not two, in order to access voluntary assisted dying. This results in different requirements to qualify for a terminal illness benefit under a life insurance policy in comparison to accessing voluntary assisted dying (one specialist medical practitioner).
Regrettably if the life insured has not submitted the medical reports to the life insurance company prior to their death to prove that they were suffering a terminal medical condition (two medical practitioners, one of which is a specialist), then the policy will be assessed as death claim. As mentioned previously, if the life insured administered the voluntary assisted dying substance to themselves then this will be assessed as a suicide claim.
If a client is contemplating the voluntary assisted dying process in the State of Victoria, it is very likely that they will qualify for a terminal illness benefit payment under their life insurance policy, but it may be necessary to obtain additional medical certification in order to meet the policy terms.
If the client fails to provide appropriate medical certification to the life insurance company proving terminal illness prior to undertaking a voluntary assisted dying process, then they may be precluded from a death benefit under the suicide exclusion where they have self-administered the voluntary assisted dying substance.
- Voluntary Assisted Dying Act 2017 (Victoria) – No. 61 of 2017 [Assented to 5 December 2017]
- https://www.canberratimes.com.au/story/6000287/premier-launches-inquiry-into-the-legalisation-of-voluntary-euthanasia/; https://www.brisbanetimes.com.au/politics/western-australia/mccusker-drafted-to-write-wa-government-s-voluntary-assisted-dying-law-20181112-p50fky.html
- s46(c)(i) VADA 2017 (Victoria)
- Macquarie Dictionary Publishers 2018, Pan Macmillan Australia Pty Ltd, Sydney, Australia.
- Australian Government – Australian Institute of Health and Welfare – Palliative care services in Australia Web report Last updated: 22 May 2019 Author: AIHW. https://www.aihw.gov.au/reports/palliative-care-services/palliative-care-services-in-australia/contents/summary
Jeffrey Scott is a freelance writer for Riskinfo.
The information provided in this article is general in nature only and does not constitute personal financial advice. The information has been prepared without taking into account any person’s personal objectives, financial situation or needs. Before acting on any information in this article you should consider the appropriateness of the information having regard to your objectives, financial situation and needs. Before making any decision, it is important for you seek appropriate legal, tax, and other professional advice. All statements made in this article are made in good faith and the author believes they are accurate and reliable. The author does not give any warranty as to the accuracy, reliability or completeness of information that is contained in this article and does not accept any liability for any error or omission in this article or for any resulting loss or damage suffered by the recipient or any other person.