Update for Aged Care Providers on Voluntary Assisted Dying Laws in Australia

Queensland has recently joined other Australian states in passing legislation to construct a legal end of life option by way of access to voluntary assisted dying (VAD). Access to VAD in Queensland will commence on 1 January 2023 when the legislation comes into force.

While aged care providers are unlikely to actively play a role in the provision of VAD, care recipients may seek access to the scheme, and as such, providers need to be prepared to respond and if appropriate, facilitate this access. Aged care providers should familiarise themselves with their respective VAD scheme(s).

Which States and Territories have VAD?

Victoria was the first state to pass VAD legislation, coming into force on 19 June 2019. The scheme is available to Victorians diagnosed with an incurable, advanced disease, illness or medical condition that is likely to cause their death within 6 months, with or without assistance of VAD.

Since the commencement of VAD in Victoria, Western Australia, Tasmania, South Australia and most recently, Queensland have followed suit, introducing similar pieces of legislation to initiate VAD in their respective states.

A summary of the status of VAD laws in each Australian State and Territory is set out below:

What are the differences in VAD schemes across Australia?

All States have based their model on the Victorian scheme.  The Victorian model requires the applicant to make three separate requests for access to VAD, followed by two separate medical assessments. If eligible, the applicant can obtain a self-administration permit, or in limited circumstances, a practitioner administration permit, authorising a doctor to administer the lethal drug in the presence of a witness. 

Some of the key differences are noted in this article, however there are subtle differences between each State which aged care providers need to be aware of. 

Western Australia’s legislation came into force 1 July 2021, becoming the second state to legalise VAD. The key differences in relation to the Western Australian legislation is the ability for health practitioners to initiate a discussion about VAD (which is prohibited in Victoria) and increased flexibility in relation to sourcing and administering VAD medication to reflect greater rural and regional areas in Western Australia.  

Tasmania’s VAD legislation is set to come into force on 23 October 2022. The Tasmanian model requires the individual to have an incurable, advanced and irreversible disease, illness or medical condition expected to cause death within a maximum of 6 months or 12 months if the individual is suffering from a neurodegenerative disease.

South Australia’s VAD legislation is set to come into force between late 2022 and early 2023. Shortly before the legislation was passed, amendments were made allowing private health services to conscientiously object to providing VAD but those amendments do not extend to residential aged care. 

Most recently, Queensland has passed legislation to introduce VAD, coming into force 1 January 2023. A point of difference in Queensland’s legislation is the lower eligibility threshold, requiring the applicant’s condition to be advanced to the point where they are likely to die within 12 months.

New South Wales, Northern Territory and Australian Capital Territory are yet to legislate on VAD, however, Independent Alex Greenwich intends to re-introduce a VAD bill into New South Wales parliament this October, following a previously failed attempt to legislate VAD in 2017. Both territories are currently banned from considering VAD legislation due to prohibitions in the Euthanasia Laws Act 1997 (Cth), however have recently called on the federal government to restore the ability of their jurisdictions to legislate on VAD. 

What do aged care providers need to do?

The implementation of VAD presents aged care providers with certain legal, operational and ethical challenges. We encourage providers to consider their role (if any) in VAD across Australia, noting the small nuances between respective States’ legislation. Some of the issues for providers to consider include:

• Balancing the aged care provider’s own position on VAD with their obligations as an aged care provider under the Aged Care Act 1997 (Cth)
• The impact of VAD on ensuring care recipients are given their rights under the Charter of Aged Care Rights
• How the aged care provider intends to respond to VAD queries amongst care recipients
• How to deal with conscientious objections of staff members providing care
• How VAD medication will be stored securely at an aged care facility
• How best to balance privacy considerations with providers’ need to be informed and aware of care recipients intending to access or accessing VAD

Russell Kennedy is able to assist by:

• preparing or tailoring policies and procedures which reflect a provider’s position on VAD;
• conducting training for staff; and
• providing easy to use factsheets for residents, their families and staff on how VAD will be managed by the provider.

If you would like to speak to us about VAD in your state, or any other matter, please contact Felicity Iredale on 03 8602 7254 or Anita Courtney on 03 8602 7211.