Voluntary assisted dying (“VAD”) has been a topic of significant discussion and legislative reform across jurisdictions worldwide. All Australian states have passed legislation to allow for VAD in certain circumstances, with the New South Wales (“NSW”) laws the last to come into effect on 28 November 2023. Both territories are still undertaking consultation for their VAD laws. For health care professionals, understanding the legal framework, ethical considerations, and their roles within the context of VAD is crucial.
At Russell Kennedy, we understand that while the laws in each state are similar, there are differences. This article will provide a brief comparison of the legislative requirements in Victoria and NSW.
What is VAD?
VAD refers to the framework a person can access and the support given by a healthcare professional to an individual with a terminal illness, disease, or medical condition in ending their life.
It is essential for the individual to possess decision-making capacity in order to make an informed voluntary decision about accessing VAD.
Legal Framework: Victoria v NSW
In Australia, the legislative framework governing VAD varies. All states have now enacted legislation allowing for VAD, while the ACT and Northern Territory continue to debate and consider similar laws. The legislation passed in NSW is generally consistent with the other states in Australia.
Akin to Victoria, VAD will soon be available to adults in NSW with decision-making capacity who have a progressive and advanced terminal illness expected to lead to death within six months, extending to 12 months for individuals with neurodegenerative conditions.
To qualify, individuals must demonstrate that they are experiencing significant and enduring suffering and that their decision is voluntary. Two experienced senior doctors, who have completed mandatory training in VAD, must independently conduct a thorough assessment to determine eligibility before granting the request. The requirement for medical practitioners to complete training is the same in both Victoria and NSW (although there may be differences in the training itself).
In Victoria, all health care workers, including registered medical practitioners, are not permitted to initiate VAD discussions - even if they believe the patient could be eligible. Medical practitioners may only engage in discussions if the patient initiates the discussion surrounding VAD.
Conversely, in NSW, all medical practitioners and health care workers, may initiate discussions about VAD as long as at the time of doing so, they inform the person of palliative care and treatment options available. If the person advising the patient is not a medical practitioner, such as a registered psychologist or nursing practitioner, then they must also direct the person to continue the discussion about palliative care and treatment options with their medical practitioner.
See below a comparison of the legislation between Victoria and NSW:
|
Victoria
(current)
|
New South Wales
(as at 28 November 2023)
|
|
Discussions about VAD must not be initiated by medical and other health practitioners.
|
Discussions about VAD may be initiated by all registered health practitioners as long as at the same time they mention palliative care and treatment options and, if not the medical practitioner, advise the patient to discuss these options in more detail with their medical practitioner.
|
|
Patient must be an adult (18 years and over), who is an Australian citizen or permanent resident.
|
Patient must be an adult (18 years and older), who is an Australian citizen, a permanent resident of Australia, or have been a resident in Australia for at least three continuous years.
|
|
Patient must have been living in Victoria for at least 12 months.
|
Patient must have been living in NSW for at least 12 months.
|
|
Patient must have an advanced disease that is expected to cause death within six months (or within 12 months for neurodegenerative diseases like motor neurone disease) and that is causing the person unacceptable suffering.
|
Patient must have at least one disease, illness or medical condition that is advanced, progressive and:
- Will, on the balance of probabilities, cause their death within six months (or within 12 months for. neurodegenerative diseases like motor neurone disease), and
- Is causing the person suffering that cannot be relieved in a way the person considers tolerable.
|
|
Patient must have decision-making capacity in relation to voluntary assisted dying.
|
Patient must have decision-making capacity in relation to voluntary assisted dying and be acting voluntarily.
|
|
Patient must be able to communicate their request and decision to their doctor.
|
Patient must have the ability to make and communicate requests and decisions about voluntary assisted dying throughout the formal request process.
|
|
Two doctors, who have completed a VAD training program, after independently assessing the patient, must agree that the patient meets the conditions for VAD.
|
Two senior doctors, who have completed mandatory training and independently assessed the patient, must agree that the patient meets the conditions for VAD.
|
|
To ensure that the decision to receive VAD medication is enduring, the process cannot be completed in less than 10 days, unless the patient is expected to die within that time.
|
|
|
Default option is for the patient to self-administer the medication. A request may be made for a health practitioner to administer the medication.
|
Patient must choose between self-administration of medication or having a health practitioner administer the medication.
|
See the Voluntary Assisted Dying Act 2022 (NSW), here.
See the Voluntary Assisted Dying Act 2017 (Vic), here.
Training for NSW Health Care Professionals Required
VAD will be available to eligible patients in NSW as of 28 November 2023. In the interim, hospitals, residential aged care and other health care organisations in NSW will need to upskill their staff to ensure they are prepared.
The experiences of other states indicate that early preparation of training programs for health care workers is crucial. Additionally, medical practitioners participating in the program will require incentives and support. In the first year of its implementation, Victoria had 400 people register for VAD and Western Australia also witnessed higher-than-expected demand.
Considering the substantial population of NSW, it is expected that there will also be high demand.
How we can help
For further information and what it will mean for your organisation, please contact Michael Gorton AM, Felicity Iredale or another member of our expert Health Law team.
If you would like to stay up to date with our health Alerts, news and Insights, you can subscribe to our mailing list here.