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As first published in the Australian Health Law Bulletin AHLB 34.5 & 6

This article outlines a decision of the Victorian Civil and Administrative Tribunal (Tribunal) arising under the Voluntary Assisted Dying Act 2017 (Vic) (the Act). This decision relates to the conduct of a “coordinating doctor” for a person seeking to access voluntary assisted dying (VAD) under the Act.

As set out in the Act, a coordinating doctor is subject to rules which set out the process by which a person can access VAD. This decision by the Tribunal provides clarity, speaking to the heightened requirement for attention to detail in the care provided to VAD patients and engagement with the process generally.

In this decision, pursuant to s 196 of the Health Practitioner Regulation National Law, Dr Nichols Carr was found to have behaved in a way which constitutes professional misconduct and was ordered to be reprimanded and issued a fine in the amount of $12,000.

Background

Dr Carr was the coordinating doctor for a patient seeking to access VAD under the Act. There was no contention as to the patient’s eligibility for VAD.

Relevantly, the process for accessing VAD requires the patient seeking VAD to complete a written declaration to the VAD Review Board seeking access to VAD.

This declaration, as set out in Div 5 of the Act, must specify that the person makes their declaration voluntarily and without coercion and that the person understands the nature and effect of the declaration they are making.

In addition, the person seeking VAD must sign their declaration in the presence of two witnesses and the coordinating medical practitioner.

In the present case, as required by the Act, the person seeking VAD attended Dr Carr on 6 February 2020, accompanied by two witnesses for signing of their written declaration. By an oversight and due to some distraction during the consultation, the written declaration was completed by the two witnesses and Dr Carr, but not by the person seeking VAD.

Unaware of this omission, Dr Carr submitted the written declaration to the VAD Review Board on 8 February 2020 and received an email in response on 10 February alerting him to the omission. Of note, the email is said to have requested that Dr Carr arrange for the patient to sign the document, without specifying the requirement for the witnesses to re-sign on a new form.

On 11 February 2020, the patient alone attended Dr Carr again to sign and complete the declaration. The patient, in completing the declaration, dated the document 6 February 2020. The claim against Dr Carr turns on the failure to have the two witnesses present for the signing of the declaration by the patient on this later date, 11 February 2020.

The written declaration was submitted to the VAD Review Board again and was accepted. As the VAD process continued, Dr Carr eventually completed the “final review form” which requires the coordinating practitioner to review the various forms (including the written declaration) and to certify that the process had been completed as required by the Act.

Subsequently, and using a drug prescribed by Dr Carr, the patient brought about their death on 1 April 2020.

Review of the VAD Review Board

During a review conducted by the VAD Review Board in May 2020, the error by Dr Carr to have the patient sign their written declaration in absence of the required witnesses was identified. The review further identified that through completion of the final review form, Dr Carr had certified the written declaration as having been signed in accordance with the requirements of the Act.

In its decision, the Tribunal noted Dr Carr’s full and frank responses to the issue once it had been raised with him. Dr Carr’s acceptance of full responsibility for his errors was also noted, as evidenced by his admission that his action comprised professional misconduct and his acceptance of being reprimanded and fined $12,000.

In the agreed facts which were submitted to the Tribunal, it is accepted that Dr Carr ought to have been aware that the non-compliant written declaration was false and misleading in that it is purported to have been signed by the patient, two witnesses and Dr Carr on 6 February 2020. By way of providing the false and misleading declaration, Dr Carr’s completing of the final review form to indicate compliance with the Act was similarly false and misleading.

Determination of the Tribunal

In its decision, the Tribunal spoke to the importance of strict compliance with the Act to ensure the protection of the rights of patients, as well as maintaining public confidence in the VAD process. The task of completing the VAD process was differentiated from the large volume of paperwork which is completed by medical practitioners in their daily work, often done within time constraints and in the presence of distracting matters.

In making this differentiation, the Tribunal noted the comparative severity of errors made in daily paperwork as opposed to that within the VAD process. The Tribunal described the VAD process to be “one of the most solemn and consequential tasks . . . which carries the highest level of professional responsibility”. Accordingly, the practitioner (along with the required witnesses, to a lesser extent) has the “key responsibility” of ensuring the VAD process is upheld — a responsibility which is safeguarded by way of professional disciplinary regulation.

There was no question as to Dr Carr’s remorse and understanding of the severity of his error, both of which were mitigating factors relevant to the Medical Board’s findings. Further matters which assisted Dr Carr included his decision to implement further methodical processes for the signing of VAD documents, including that he now has his practice manager review forms for errors prior to submission. Of note, Dr Carr has lodged compliant VAD documentation for 39 patients since the present case.

In considering an appropriate determination, the Tribunal had the benefit of four written statements from character referees, two from professional colleagues and two from witnesses in VAD processes coordinated by Dr Carr. The statements attested to Dr Carr’s compassion for patients and the care he takes in upholding the VAD process. No commentary was provided as to the impact of these statements on the determination made, however, it is assumed that they provided further mitigating factors.

Relevantly, the Tribunal considered an earlier matter against Dr Carr in which he was cautioned for having knowingly falsely recorded the cause of death of an elderly patient who had requested the same some 10 years prior to her death. In this matter, Dr Carr admitted knowledge that the cause of the patient’s death may have been suicide, despite failing to indicate this on her death certificate, which reported her cause of death as a heart attack. The Tribunal in the present case accepted the submissions by parties that this prior matter was relevant and further noted it to be an aggravating factor in considering appropriate determinations.

While specific deterrence was considered as necessary, given the abovementioned prior matter, the predominant purpose of the decision to sanction Dr Carr was general deterrence, being to protect the public and to maintain ethical and professional standards and the good reputation of the profession in the eyes of the public.

Notwithstanding the predominant purpose for general deterrence, on the question of the appropriateness of a reprimand, the Tribunal said as follows: Clearly, a reprimand is appropriate in this case. It is a formal statement of condemnation of Dr Carr’s conduct (amounting to professional misconduct) in providing false and misleading declarations, albeit not deliberately, in this highly sensitive area. It will appear on the public register of medical practitioners.

In relation to the fine ordered, it was on submissions by the parties regarding VAD work being time-intensive and “not well remunerated”, along with the abovementioned various mitigating and aggravating factors, that the Tribunal agreed to the proposed fine of $12,000 being appropriate.

This decision serves as a reminder to practitioners working within the VAD area of the heightened responsibility and requirement for attention to detail, along with the associated disciplinary risks.

This article was published on 6 of October 2026 by Carroll & O’Dea Lawyers and is based on the relevant state of the law (legislation, regulations and case law) at that date for the jurisdiction in which it is published. Please note this article does not constitute legal advice. If you ever need legal advice or want to discuss a legal problem, please contact us to see if we can help. You can reach us on 1800 059 278 or via the Contact us page on our website. (www.codea.com.au). If you or a loved one has been injured, use our Personal injury Claim Check now.