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Voluntary Assisted Dying Laws: An Update for Residential Aged Care Providers

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Voluntary assisted dying (VAD) is a major legal, ethical, and social policy issue in Australia. Most jurisdictions in Australia have now enacted or are in the process of enacting VAD laws. This article provides a quick summary of the status of VAD laws in each jurisdiction and the key issues affecting residential agreed care providers.

What is VAD?

Although the definition of VAD will be different under each jurisdiction’s legislation, VAD generally refers to the administration of a voluntary assisted dying substance and the steps reasonably related to that administration to end a person’s life. VAD is available to people who are suffering and dying from an advanced and progressive life-threatening condition. There are strict eligibility criteria in each jurisdiction that set out who will be eligible to access VAD. An important criterion, as the term ‘voluntary’ indicates, is that the person choosing VAD must have the capacity and competence to understand the treatment options in order to access VAD.

 

Status of VAD Laws in Each Jurisdiction

Jurisdiction

Legislation

Commencement

Queensland

Voluntary Assisted Dying Act 2021 (Qld)

Commences 1 January 2023.

 

South Australia

Voluntary Assisted Dying Act 2021 (SA)

Commences no later than 1 July 2023 (or earlier if a proclamation is issued).

Western Australia

Voluntary Assisted Dying Act 2019 (WA)

Commenced 1 July 2021.

Victoria

Voluntary Assisted Dying Act 2017 (Vic)

Commenced 19 June 2019.

Tasmania

End of Life Choices (Voluntary Assisted Dying) Act 2021 (Tas)

Commences 23 Oct 2022 (or on a date to be proclaimed).

 

New South Wales

Voluntary Assisted Dying Bill 2021 (NSW)

This Private Member’s Bill passed the Legislative Assembly with amendments on 26 November 2021.

We do not know when or if this Bill will be passed by Parliament.

Northern Territory and Australian Capital Territory

No legislation

The territories do not have the right to make VAD laws.

Both territories wish to overturn a 1997 Act that banned both territories from passing legislation on the matter.

 

Summary

Eligibility Criteria

In order to access VAD, there are strict eligibility criteria that an individual must meet. Although the eligibility criteria may differ slightly for each jurisdiction, there are some commonalities across each state’s legislation. Generally, to access VAD the person:

  • must be at least 18 years of age
  • must be an Australian citizen or permanent resident
  • has been diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death, and causes suffering that cannot be relieved in a manner that the person considers tolerable
  • must be acting voluntarily
  • must have decision-making capacity.

 

The timeframe in which the disease, illness or medical condition must be expected to cause death differs between each jurisdiction but is generally within six to 12 months. A person may not access VAD because the person has a disability or is diagnosed with a mental illness.

 

Decision-Making Capacity

A commonality among each jurisdiction’s legislation is that to access VAD the individual must have decision-making capacity throughout the entire process. The individual must understand the information or advice about VAD and be able to use that information as part of the process of making the decision. The specific definition of decision-making capacity will be different for each state.

 

Participation

Another commonality is that residential aged care staff and health care practitioners have the right to refuse to participate in VAD if they have a conscientious objection.

 

Staff Must Not Initiate Conversations About VAD

Health care workers including residential aged care staff must not initiate discussion about VAD, this includes raising the topic of VAD with a resident or suggesting VAD to a resident. Doing so is considered an offence and unprofessional conduct. (There is a limited exception in Western Australia, where a medical practitioner or nurse practitioner can discuss VAD with a person under very specific circumstances). If, however, a patient requests information or they initiate a discussion about VAD, healthcare workers can provide information or answer questions about VAD that have been asked of them, provided they have the knowledge and are comfortable doing so.

 

Key Considerations for Aged Care Providers

VAD laws present aged care providers with operational, legal, and ethical challenges. Aged care providers should consider what role they wish to play if any in VAD across Australia, being aware of the small differences between each jurisdiction’s legislation. Aged care providers should:

  • consider to what extent they will participate in VAD, and as most aged care providers will not participate directly, they may need to consider whether they will partner with providers of VAD
  • be aware of the legalities of VAD and ensure that all staff understand what they can and cannot do under VAD laws, importantly ensuring that staff understand that they are unable to initiate conversations about VAD
  • consider how they intend to respond to VAD queries from residents and make sure that staff understand what is required of them if a resident initiates a conversation about VAD with them
  • plan for how they are to handle conscientious objections of staff members assisting with VAD care.

 

Aged care providers should think about these challenges at the earliest opportunity so that they are prepared when VAD legislation comes into force in their jurisdiction.

 

Additional Resources

The below resources are links to each state’s government health website detailing further information about VAD in that state:

Queensland: https://www.health.qld.gov.au/system-governance/legislation/voluntary-assisted-dying-act

South Australia: https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/services/primary+and+specialised+services/voluntary+assisted+dying/overview+voluntary+assisted+dying+in+south+australia

Tasmania: https://www.health.tas.gov.au/vad

Victoria: https://www.health.vic.gov.au/patient-care/voluntary-assisted-dying

Western Australia: https://ww2.health.wa.gov.au/voluntaryassisteddying

 

Author

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at CompliSpace. Having graduated from Macquarie University in Sydney, she holds a double bachelor’s degree in Commerce and Law. She has experience working as a lawyer in both private practice and in-house roles with a focus on employment and privacy laws.

 

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