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NSW Voluntary Assisted Dying: What Aged Care Providers Need to Know

21/11/23
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Voluntary Assisted Dying (VAD) is legal in NSW from 28 November 2023. New obligations apply to residential aged care providers under the Voluntary Assisted Dying Act 2022 (NSW). Here’s what you need to know.

 

What is Voluntary Assisted Dying (VAD)?

The legal definition of VAD in NSW is: “The administration of a VAD Substance and includes steps reasonably related to such administration.” Guidance from NSW Health expands on this to say:

“Voluntary assisted dying means an eligible person can ask for medical help to end their life … A person must meet the eligibility criteria and follow all the legal steps for voluntary assisted dying to happen. This will allow them to take or be given a medication to bring about their death at a time that they choose. Voluntary assisted dying and suicide are different. Asking for medical help to die is not suicide under the law in NSW.”

There are several stages to the VAD process, and each involves strict and complex legal requirements. The key stages are:

  • Consumer requests information about VAD
  • Consumer makes a First Request to access VAD
  • Consumer undergoes a First VAD Assessment
  • Consumer undergoes a Consulting Assessment
  • Consumer makes a Final Request to access VAD
  • Consumer is assessed as eligible to access VAD
  • Consumer makes a Written VAD Declaration
  • Consumer makes an application for an Administration Decision (a decision to self-administer a VAD Substance, or have the Substance administered to them)
  • VAD Substance is administered

 

Who Can Access VAD in NSW?

A person can only access VAD in NSW if they meet strict eligibility criteria. The person must:

  • be an adult and an Australian citizen, permanent resident or a resident who has been Australia for at least three continuous years when the first request is made
  • have been living in NSW for at least 12 months when the first request is made (unless they get an exemption)
  • have an advanced and progressive disease, illness, or medical condition that is expected to cause their death within six months (or 12 months for neurodegenerative diseases like motor neurone disease). They must also be experiencing suffering that can’t be relieved in a way that is acceptable to them
  • have decision-making capacity in relation to voluntary assisted dying
  • be acting voluntarily (their own choice) and not because of pressure or duress from another person
  • have an enduring request for voluntary assisted dying. This means it is continuous, ongoing, and lasting over a period of time.

The law says that a person is not eligible for voluntary assisted dying on the grounds of disability, dementia or a mental health impairment. However, if a person with disability, dementia or a mental health impairment also meets all the criteria above, they may be eligible for VAD.

 

Restrictions on Initiating Discussions About VAD in NSW

There are restrictions on when some people may start a conversation about VAD with an aged care consumer in NSW. Different restrictions apply depending on the person’s role.

However, the general requirement is that an on-duty staff member is not allowed to start a conversation about VAD or suggest VAD to a consumer unless, at the same time, they also have a broader conversation about the alternatives available to the consumer (see immediately below for more details).

Note: these restrictions apply to the act of initiating a conversation about VAD. Staff are permitted to provide information about VAD if the consumer requests it.

 

Care Staff Who are Not Doctors

Restrictions apply to a member of care staff who is not a doctor/medical practitioner. This includes staff who are nurses, personal care workers and allied health professionals. These staff must not, while providing health or professional care services to a consumer:

  • initiate a discussion with the consumer that is in substance about VAD, or
  • in substance, suggest VAD to the consumer

unless at the same time the staff member also tells the consumer that they have palliative care and treatment options available that they should discuss with their medical practitioner.

 

Non-Care Staff

For non-care staff there are no restrictions on initiating conversations about VAD with a consumer. Non-care staff means staff who do not provide any health or personal care services to consumers, e.g. maintenance staff.

 

Staff Who Are Doctors

Restrictions apply to staff who are medical practitioners (i.e. doctors). These staff must not, while providing health or professional care services to a consumer:

  • initiate a discussion with the consumer that is in substance about VAD, or
  • in substance, suggest VAD to the consumer

unless at the same time they also inform the consumer about:

the treatment options available that would be considered standard care for their medical condition

  • the likely outcomes of the treatment options available
  • the palliative care and treatment options available
  • the likely outcomes of the palliative care and treatment options.

Non-Staff

Restrictions apply to some people (e.g. visiting medication practitioners) who are not staff. These individuals, and not the aged care provider, are responsible for ensuring that they understand and abide by the relevant restrictions.

 

Aged Care Providers DO NOT Have Primary Responsibility for the VAD Process

To access VAD, a consumer must make a series of requests to authorised medical practitioners. The process is complex and governed by strict laws. It is the responsibility of the relevant medical practitioners – and not the aged care provider – to ensure that the process is followed correctly. Similarly, the responsibility of administering a VAD Substance falls to the consumer (if self-administering) or to the relevant practitioner (if practitioner administering). The aged care provider is not responsible for administering VAD Substances.

The aged care provider is responsible for caring for the consumer throughout the process. Providers also have some legal obligations to facilitate consumer’s access to VAD information and VAD practitioners.

 

Conscientious Objections

Aged care staff and medical practitioners who have a conscientious objection to VAD have the right to refuse to provide information about VAD, and the right to refuse to participate in any VAD decision or process.

However, the aged care provider as an organisation still has legal obligations to provide consumers with VAD information and access to VAD medical practitioners. These obligations apply even if the organisation has a conscientious objection to VAD.

 

Your Obligations if you Choose NOT to Participate in the VAD Process

Aged care providers who choose NOT to participate in the VAD process still have legal obligations to:

  • inform consumers and prospective consumers that you do not participate in VAD (e.g. through notices, website, brochures etc.)
  • ensure that care staff adhere to the restrictions on initiating conversations about VAD
  • support staff and consumers who may be distressed by the VAD process
  • care for the consumer throughout the process
  • not hinder a consumer’s access to information about VAD
  • allow medical practitioners and members of the NSW VAD Care Navigator Service to have reasonable access to the consumer, if requested
  • if necessary and reasonable, facilitate transfer of the consumer to other facilities.

The obligations mentioned in the last two dot points above are complex. For each stage of the VAD process, the aged care provider has legal obligations to allow the relevant medical practitioners to access the consumer in the home (if the consumer is a permanent resident). If the consumer is not a permanent resident, the provider has an obligation to transfer them to another facility where they can access the relevant VAD practitioners and information. But note: if the consumer’s VAD medical practitioner decides that it is not appropriate to transfer the consumer, the provider will have an obligation to grant the medical practitioner access to the consumer within the home.

To be clear: aged care providers who do not wish to participate in the VAD process are still legally obliged to allow a consumer reasonable access to all the information, medical practitioners and other supports that they may need throughout the process. This includes an obligation to allow delivery of a VAD Substance to the home, and an obligation to allow a VAD Substance to be administered within the home. Again, this obligation applies to consumers who are permanent residents. For other consumers, providers may be obliged to transfer the consumer elsewhere.

 

Your Obligations if you Choose to Participate in the VAD Process

Aged care providers who choose to partner with the consumer and medical practitioners in the VAD process have legal obligations to:

  • ensure that care staff adhere to the restrictions on initiating conversations about VAD
  • support staff and consumers who may be distressed by the VAD process
  • care for the consumer throughout the process
  • not hinder a consumer’s access to information about VAD
  • allow medical practitioners and members of the NSW VAD Care Navigator Service to have reasonable access to the consumer
  • if necessary and reasonable, facilitate transfer of the consumer to other facilities.

The medical practitioners, and not the aged care provider, have primary responsibility for ensuring that the legal requirements governing the VAD process are met.

 

More Information

NSW Health: Voluntary Assisted Dying in NSW

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About the Author

Mark Bryan

Mark is a Legal Content Consultant at Ideagen CompliSpace and the editor for Aged Care Essentials (ACE). Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

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