Oct 24, 2022

New Voluntary Assisted Dying laws take effect around Australia

New Voluntary Assisted Dying (VAD) laws come into effect in Tasmania today, 18 months after they passed. 

In Australia, VAD laws have been passed in all States and while they are similar, there are some differences, and will have some effect on aged care workers and their residents.

VAD is the assistance provided to a person by a health practitioner to end their life. “Voluntary” means it is the person’s voluntary choice, so they must have decision-making capacity to decide to access VAD.

New VAD laws will commence operation at various dates:

  • Tasmania – October 23, 2022
  • South Australia – January 31, 2023
  • Queensland – January 1 2023
  • New South Wales – November 28, 2023

These laws will allow people with terminal illnesses to make decisions about how they die, but will also have some effect on the aged care sector, as aged care providers and their workers may need to assist in the VAD process for residents or clients.

Where is VAD available?

While the VAD laws across the States are similar, there are some differences.

In Victoria and Western Australia, VAD is currently operating and is available in limited circumstances to people who meet the eligibility criteria.

But VAD is illegal in the Northern Territory and the Australian Capital Territory as Commonwealth laws currently prevent them from legislating on VAD. A Bill went before the Commonwealth Parliament last month, which has passed the House of Representatives to allow the Territories to make their own decision on VAD, but is yet to pass through the Senate.

Professor Ben White, Professor of End-of-Life Law and Regulation at Australian Centre for Health Law Research and End of Life Directions for Aged Care said if this Bill is passed, it would be positive steps moving towards all of Australia having access to VAD.

“If that bill passes, the Territories would be in line with the other States, and we may well have the entire country pass laws on VAD,” Professor White said. 

He added while not all people will want access to VAD, it was about choice. 

“Not all people will want this, in fact it’s only a relatively small cohort of people that choose to access VAD,” Professor White said. 

“But for people who meet the strict eligibility criteria and they are suffering, this provides an opportunity to take steps to avoid that suffering. 

Who is eligible for VAD?

To access VAD a person must meet all of the eligibility criteria in their State. A person is eligible if they:

  • Are aged 18 years or over
  • Are an Australian citizen or permanent resident, who has been resident in the State for at least 12 months when they first request VAD (these criteria can be met in other ways in Tasmania, Queensland and New South Wales)
  • Have decision-making capacity
  • Are acting voluntarily and without coercion
  • Have an ongoing request for VAD
  • Have a disease, illness or medical condition that is advanced and will cause death. 

In all States, except Tasmania, the disease, illness or medical condition must also be progressive (the person experiences active deterioration), incurable (Victoria, South Australia and Tasmania only), and irreversible (Tasmania only), expected to cause death within six months, or 12 months for a person with a neurodegenerative disease, illness or medical condition. 

In Queensland, however, a person expected to die within 12 months may apply for VAD if they will be caused suffering that cannot be relieved in a manner that the person finds tolerable, which includes psychological or existential suffering.

A person will not be eligible for VAD based on having a disability or mental illness (or in New South Wales, dementia) alone.

To access VAD, each State requires the person to undergo a request and assessment process which generally involves a person:

  • Making at least three requests for VAD
  • Being assessed as eligible by at least two independent medical practitioners

The person can withdraw their request for VAD at any time.

Administration of VAD medication

The VAD medication can be administered by the person, or in some cases, a health practitioner.

The person may take the VAD medication at a time and place of their choosing and there is no requirement for other people to attend, but a witness must be present for practitioner administrations in all States, except Tasmania.

For older people in residential aged care, they may elect to take VAD medication within the facility.

VAD and aged care workers

There are some cases where aged care workers may need to provide information or assistance to an older person considering VAD.

Providing appropriate pain and symptom relief with the intention of relieving a person’s pain and suffering is not considered VAD. In fact, it is lawful and considered good clinical practice to provide pain relief to manage a person’s pain and symptoms at the end of their life.

There are restrictions on when VAD can be discussed with an older person, when information can be provided and which health professionals can do this. 

In all four States, registered health practitioners and other types of health care workers, including aged care workers, may provide information about VAD if a person or resident requests it.

In Western Australia, Queensland and New South Wales, a medical practitioner can initiate VAD discussions, but must also provide information about treatment and palliative care options. A nurse practitioner in Western Australia and Queensland can also do this.

In Tasmania, all registered health practitioners can initiate VAD discussions but must inform the person that a medical practitioner is the best person to discuss VAD with.

In New South Wales, health care workers (a person who provides health or professional care services) can initiate VAD discussions but must inform the person that they have palliative care and treatment options available, and should discuss these with the person’s medical practitioner.

In some cases, there may be a requirement for additional specialist opinions to determine if a person is eligible for VAD if it is unclear whether that person has a capacity to make the decision.

There are strict protocols governing the prescription, dispensing and disposal of VAD medications. Any unused or remaining VAD medication must be returned to the dispensing pharmacist and there are offences for anyone who convinces another person to request VAD or take the VAD medication.

These measures are monitored, reported and researched by independent Boards or Commissions in all States. 

Right to refuse

Professor White said health professionals working in residential aged care facilities (RACF) can decide whether or not to participate in VAD. However in some States objecting health professionals, as well as non-participating RACF, still have certain obligations.

“The laws are very clear that medical staff aren’t compelled or required to be involved,” Professor White said.

“Victoria, Western Australia and Tasmania don’t have any laws which deal with what institutions can and can’t do when it comes to VAD. 

“In Queensland, South Australia and New South Wales, there are provisions in the law which require institutions to allow people to access VAD in their premises, but they don’t have to be involved themselves.”

A health practitioner or health care worker can conscientiously object to participating in VAD. In all States they may refuse to:

  • Accept a VAD request
  • Participate in VAD assessment processes or administration decisions
  • Prescribe, supply or administer a VAD medication
  • Be present during administration of VAD medication

In Victoria, South Australia, Queensland, and New South Wales, a person with a conscientious objection can also refuse to provide information about VAD.

In Western Australia, Queensland and New South Wales, a medical practitioner can refuse to accept a first request for VAD because of a conscientious objection, but must let the person know immediately. They must also provide contact details of a service which provides VAD assistance, which is also a requirement in Tasmania.

In Victoria, Western Australia and Tasmania, the VAD laws do not discuss institutional participation in VAD, so institutions like RACF can decide what level of involvement they have.

In South Australia, Queensland and New South Wales, institutions may choose not to participate in VAD. However, some institutions, including RACF, who decide not to participate have certain obligations so that a resident can access VAD if they wish.

Professor White said if a resident was at a home which does not offer VAD or any information about it, a VAD Care Navigator can assist them in finding somewhere to do it and help them navigate the process. 

Have you ever been involved in a VAD request in your facility? Tell us in the comments below.

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