Summary

Eligibility Criteria

There are strict eligibility criteria that an individual must meet to access VAD. Although criteria differ slightly for each jurisdiction, there are some commonalities. Generally, 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 across 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 their decision. The specific definition of decision-making capacity differs 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 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 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, if any, they wish to play in VAD. 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.

Additional Resources

• New South Wales: https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/default.aspx
• 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

Authors

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at 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 Legal Research Consultant at 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.