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Voluntary Assisted Dying Laws: November 2023 Update for Residential Aged Care Providers

7/11/23
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With new voluntary assisted dying (VAD) laws soon to commence in New South Wales, and new VAD legislation tabled 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: New South Wales and ACT Laws

New South Wales

The Voluntary Assisted Dying Act 2022 (NSW) will come into effect on 28 November 2023.

 

Australian Capital Territory (ACT)

The Voluntary Assisted Dying Bill 2023 (ACT) was presented to the Legislative Assembly on 31 October 2023. The Bill is in its early stages and is not yet a law. If it passes, the Bill will establish a framework for VAD in the ACT.

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

  • The ACT Bill allows for nurse practitioners to play a larger role in the process than is permitted in other jurisdictions.
  • The ACT Bill does not require that a person must be “expected to die” within a certain timeframe. (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 Bill sets penalties that will apply to care facilities that hinder a consumer’s access to VAD.

 

Status of VAD Laws in Each Jurisdiction

Jurisdiction

Legislation

Commencement

Queensland

Voluntary Assisted Dying Act 2021 (Qld)

Commenced 1 January 2023.

 

South Australia

Voluntary Assisted Dying Act 2021 (SA)

Commenced 31 January 2023.

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)

Will commence 28 November 2023.

Northern Territory

No legislation as at August 2023. Consultation 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 is now in a position to consider the legalisation of Voluntary Assisted Dying (VAD). The NT Government is commencing a community consultation process for the development of a framework for VAD that will meet the needs of our community members, ensuring this care is accessible, appropriate and safe.” Following consultation, an independent panel will provide a written report to the NT Government by July 2024.

Australian Capital Territory

Voluntary Assisted Dying Bill 2023 (ACT)

This Bill was presented to the Legislative Assembly on 31 October 2023. The Bill is in its early stages and is not yet a law. If it passes, the Bill will establish a framework for VAD in the ACT.

 

 

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 (although the timeframe does not apply at all in the ACT Bill). 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 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.

 

Additional Resources

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About the Author

Alyssa Kritikos

Alyssa is a Senior Legal Content Associate at Ideagen 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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