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Voluntary Assisted Dying Laws: July 2024 Update for Residential Aged Care Providers

28/06/24
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With new voluntary assisted dying (VAD) laws recently passed in the ACT, it’s time to recap the status of VAD laws across Australia and their effects on residential aged care providers.

 

What is Voluntary Assisted Dying (VAD)?

Although the precise definition varies across jurisdictions, VAD generally refers to the administration of a voluntary assisted dying substance to end a person’s life. In most Australian jurisdictions, VAD is (or will be) available to people who are suffering and dying from an advanced and progressive life-threatening condition. Strict eligibility criteria set out who can access VAD. An important criterion, as the term “voluntary” indicates, is that to access VAD the individual must have decision-making capacity throughout the entire process.

 

Latest Developments: ACT Laws

The Voluntary Assisted Dying Act 2024 (ACT) passed the Legislative Assembly in June 2024, but VAD will not be legal in the ACT until 3 November 2025.

According to the ACT Government, “the government will spend 18 months setting up the necessary systems and safeguards for the legislation's implementation, ensuring that voluntary assisted dying becomes a legal option for eligible people”.

The ACT laws are largely similar to the VAD laws in other jurisdictions but differ in two notable ways:

  • The ACT laws allow for nurse practitioners to play a larger role in the process than is permitted in other jurisdictions.
  • The ACT laws do not require that a person must be “expected to die” within a certain timeframe. According to the Summary of the ACT’s VAD Framework, a person who meets the eligibility requirements “is eligible for VAD regardless of how soon a health professional expects them to die”. (In other jurisdictions, a person cannot access VAD unless they have been diagnosed with a terminal condition and are expected to die within a certain timeframe – six or 12 months depending on the jurisdiction.)

Similar to laws in South Australia, the ACT laws impose penalties on aged care facilities that hinder a resident’s access to VAD.

 

Status of VAD Laws in Each Jurisdiction

Jurisdiction

Legislation

Commencement

Queensland

Voluntary Assisted Dying Act 2021 (Qld)

Commenced 31 January 2023.

South Australia

Voluntary Assisted Dying Act 2021 (SA)

Commenced 1 July 2021.

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)

Commenced 23 Oct 2022.

New South Wales

Voluntary Assisted Dying Bill 2021 (NSW)

Commenced 28 November 2023.

Northern Territory

No legislation as at July 2024. Plans are underway.

Until recently the territories did not have power to make VAD laws. That situation changed with the passing of the Restoring Territory Rights Act 2022 (Cth).

 

According to the Northern Territory Government, the NT Government carried out a community consultation in 2023-24 to develop a framework for VAD. Consultation closed 30 April 2024. An expert advisory panel is expected to consider all feedback from the consultation and report to Government by July 2024.

Australian Capital Territory

Voluntary Assisted Dying Act 2024 (ACT)

VAD will become legal in the ACT on 3 November 2025. Between now and then the ACT Government will set up the necessary systems and safeguards for the legislation's implementation.

 

Summary of VAD Laws

Although the detail of VAD laws differs across the states and territories, there are some common features.

 

Eligibility Criteria

There are strict eligibility criteria that an individual must meet to access VAD. Generally, the person must:

  • be at least 18 years of age
  • be an Australian citizen or permanent resident
  • have 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
  • be acting voluntarily
  • have decision-making capacity.

The timeframe in which the disease, illness or medical condition must be expected to cause death differs across each jurisdiction but is generally within six to 12 months (although the timeframe will not apply at all in the ACT). A person is not eligible for VAD if their “medical condition” is a mental illness or disability.

 

Decision-Making Capacity

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 their decision. The specific definition of decision-making capacity differs for each state/territory.

 

Participation

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 discussions 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 resident 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, if any, they wish to play in the VAD process. Aged care providers should:

  • consider the extent of their participation in VAD, and, as most aged care providers will not participate directly, 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, ensure that staff understand that they must not initiate conversations about VAD
  • consider how they will respond to VAD queries from residents. Ensure that staff understand what is required of them if a resident initiates a conversation about VAD
  • plan for how to handle conscientious objections of staff members who are asked to assist with VAD care, bearing in mind the need to minimise any disruptions to the resident’s care
  • be aware that hindering access to VAD could be illegal in some circumstances (particularly in South Australia and, from November 2025, in the ACT).

 

More Information

 

About the Author

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at Ideagen CompliSpace. Having graduate 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.

 

Mark Bryan

Mark is a Content Team Lead at Ideagen CompliSpace and the editor for 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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