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Voluntary Assisted Dying Acts now in force in all states

As New South Wales becomes the last state to introduce Voluntary Assisted Dying (VAD) legislation, we answer your key questions on the new laws and highlight how the legislation differs from other states.

Kate Gillman, BA LLB, Head of Medico-legal Advisory Service, Avant

Thursday, 21 December 2023

Voluntary Assisted Dying Acts now in force in all states

As New South Wales becomes the last state to introduce Voluntary Assisted Dying (VAD) legislation, we answer your key questions on the new laws and highlight how the legislation differs from other states.

Mirroring the other states, the NSW VAD Act, which came into effect on 28 November 2023, is overseen by a Voluntary Assisted Dying Board and is very prescriptive. The legislation includes multiple approval processes intended to safeguard patients and the community.

Voluntary assisted dying is still illegal in the Australian Capital Territory and the Northern Territory. However, the ACT has introduced a VAD bill into parliament and in the Northern Territory, consultation with the community has commenced.

Who is eligible for VAD in NSW?

To access VAD in NSW patients must be:

  • 18 years or older with capacity to consent to VAD and acting voluntarily and without pressure or duress. If a patient loses capacity, they are no longer eligible for VAD. 
  • An Australian citizen or permanent resident or resident for three years and ordinarily resident in NSW for 12 months (subject to any exemptions).
  • Diagnosed with an advanced and progressive medical condition that will cause death within six months (or 12 months if it concerns a neurodegenerative condition) and is causing suffering that the person considers intolerable.

The six-month time requirement is consistent in all states except Queensland where it is 12 months for all medical conditions.

What are the key requirements to be authorised as a VAD practitioner?

All practitioners involved in the VAD process must:

  • Complete approved mandatory training.
  • Not be a family member of the patient.
  • Not know or believe they will benefit financially or materially from the death of the patient (beyond reasonable fees incurred as a practitioner).
  • Meet any other requirements prescribed by regulations.

Can I initiate discussions about VAD?

Reflecting the position in WA, Tasmania and Queensland, healthcare and medical practitioners in NSW may initiate a discussion about VAD, but only when they also inform the patient about treatment and palliative care options. Healthcare practitioners other than medical practitioners who have this discussion, also need to advise the patient to discuss these issues with their doctor.

In contrast, practitioners in Victoria and South Australia cannot initiate VAD discussions with a patient.

What is the process?

Consistent with requirements in other states, in NSW a person must make and confirm their request for VAD at least three times: a first request, a written declaration, and a final request. The minimum period between the first and final requests is five days in NSW, compared to seven days in Tasmania and nine days in other states.

Two independent medical practitioners must assess eligibility – one will be the designated ‘coordinating’ practitioner and the other a ‘consulting’ practitioner. Both must have specialist registration, or general registration and have practised in the medical profession for at least 10 years. The VAD Board must authorise the patient’s VAD request.

How is the VAD substance accessed?

Once the VAD Board authorises the request, the coordinating practitioner can submit a VAD substance prescription to the VAD prescribing clinic within NSW Health. When supplied, the substance must be stored securely in a locked box.

The patient completes an Administration Decision Form to select between self-administration or practitioner administration. The administering practitioner can be a nurse practitioner, as is the case in all states except for Victoria and South Australia. Tasmania and Queensland also permit nurses to administer the VAD substance.

Can I conscientiously object to VAD participation?

As in other states, a medical practitioner in NSW can refuse to participate in any part of VAD due to a conscientious objection.

What obligations do healthcare and residential facilities have?

Healthcare establishments and residential facilities in NSW can refuse to participate in VAD or have their staff participate, but they must publish information that they do not provide those services, and not hinder patients obtaining assistance. These requirements reflect those in South Australia and Queensland, but do not exist in Victoria, Tasmania and Western Australia.

What are the requirements for recording the death?

In NSW, a medical practitioner must record in the death certificate if they know or reasonably believe the patient self-administered, or was administered, a VAD substance in accordance with the VAD Act and the disease, illness, or medical condition which made the person eligible to access VAD.  There are also requirements for the medical practitioner who completes the death certificate, and the coordinating or administering practitioner, to notify the VAD Board about the death.

There are varying requirements in each state for recording the death and reporting it to the VAD Boards.

Are practitioners protected?

In NSW, as in all states, a person who in good faith assists another person to access VAD, is not guilty of unlawful killing or aiding suicide. The death is not classified as death by suicide.

However, it is mandatory for healthcare practitioners and employers in all states to report a practitioner to Ahpra if they form a reasonable belief that the practitioner’s conduct breaches VAD legislation. 

Are there any telehealth restrictions?

The Federal Court recently found that the provisions of the Commonwealth Criminal Code do apply to acts authorised under state VAD legislation, and therefore a ‘carriage service’ (telehealth, email, phone, fax) cannot be used to provide information about: 

  • A person’s administration decision.
  • How to prepare or administer/self-administer the VAD substance.
  • Prescription of the VAD substance.

Similar restrictions apply across Australia to avoid breaching the Commonwealth Criminal Code related to use of a carriage service to access suicide-related material. For more information, read section 4.1 of the NSW VAD Clinical Practice Handbook.

Useful resources

NSW: Voluntary Assisted Dying Act 2022

SA: Voluntary Assisted Dying Act 2021

QLD: Voluntary Assisted Dying Act 2021

TAS: End-of-Life Choices (Voluntary Assisted Dying) Act 2021 

WA: Voluntary Assisted Dying Act 2019 

VIC: Voluntary Assisted Dying Act 2017 

More information about VAD, including free resources, is available at End of Life Directions for Aged Care.

If you require advice on your obligations under the VAD legislation or medico-legal advice, call us on 1800 128 268, 24/7 in emergencies.

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Disclaimers


IMPORTANT:
This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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