Constitution of ‘the already dying’: The emergence of voluntary assisted dying in Victoria

Abstract: In June 2019 Victoria became the first state in Australia to permit ‘voluntary assisted dying’ (VAD), with its governance detailed in the Voluntary Assisted Dying Act 2017 (Vic) (‘VAD Act’). While taking lead from the regulation of medically-assisted death practices in other parts of the world, Victoria’s legislation nevertheless remains distinct. The law in Victoria only makes VAD available to persons determined to be already dying: it is expressly limited to those medically prognosed to die “within weeks or months”. In this article, we discuss the emergence of the Victorian legislation across key formative documents. We show how, in devising VAD exclusively for those “already at the end of their lives”, the Victorian state mobilises the medico-legal category of the already dying. We argue that this category functions to negotiate a path between what are seen as the unacceptable alternatives of violent suicide on the one hand, and an unlimited right to die on the other. Further, we argue that the category of the already dying operates to make medical practitioners the gatekeepers of end of life choices, and effectively limits the realisation of autonomy at the end of life.