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.
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.
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. |
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:
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.
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.
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.
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.
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:
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.
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
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
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.