With new voluntary assisted dying (VAD) laws recently passed in New South Wales, it’s time to recap the status of VAD laws across Australia and their effects on residential aged care providers.
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.
The Voluntary Assisted Dying Bill 2021 (NSW) passed through the NSW Parliament on 19 May 2022. However, the law will not commence until late 2023. According to NSW Health, “The legislation will come into effect after an 18-month implementation period. NSW Health will work with the community and a broad range of health, aged care and other stakeholders to implement the framework set out in the legislation.”
Jurisdiction | Legislation | Commencement |
Queensland | Voluntary Assisted Dying Act 2021 (QLD) | Commences 1 January 2023. |
South Australia | Voluntary Assisted Dying Act 2021 (SA) | Commences 1 July 2023 (or earlier if proclamation is issued). |
Western Australia | Voluntary Assisted Dying Act 2019 (WA) | Commenced 1 July 2021. |
Victoria | Voluntary Assisted Dying Act 2019 (WA) | Commenced 19 June 2019. |
Tasmania | End of Life Choices (Voluntary Assisted Dying Act 2021 (Tas) | Commences 23 Oct 2022 (or earlier if proclamation is issued). |
New South Wales | Voluntary Assisted Dying Bill 2021 (NSW) | Expected to commence around November 2023. |
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. |
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:
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.
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.
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 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.
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:
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 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.