Voluntary Assisted Dying (VAD) is legal in NSW from 28 November 2023. New obligations apply to residential aged care providers under the Voluntary Assisted Dying Act 2022 (NSW). Here’s what you need to know.
The legal definition of VAD in NSW is: “The administration of a VAD Substance and includes steps reasonably related to such administration.” Guidance from NSW Health expands on this to say:
“Voluntary assisted dying means an eligible person can ask for medical help to end their life … A person must meet the eligibility criteria and follow all the legal steps for voluntary assisted dying to happen. This will allow them to take or be given a medication to bring about their death at a time that they choose. Voluntary assisted dying and suicide are different. Asking for medical help to die is not suicide under the law in NSW.”
There are several stages to the VAD process, and each involves strict and complex legal requirements. The key stages are:
A person can only access VAD in NSW if they meet strict eligibility criteria. The person must:
The law says that a person is not eligible for voluntary assisted dying on the grounds of disability, dementia or a mental health impairment. However, if a person with disability, dementia or a mental health impairment also meets all the criteria above, they may be eligible for VAD.
There are restrictions on when some people may start a conversation about VAD with an aged care consumer in NSW. Different restrictions apply depending on the person’s role.
However, the general requirement is that an on-duty staff member is not allowed to start a conversation about VAD or suggest VAD to a consumer unless, at the same time, they also have a broader conversation about the alternatives available to the consumer (see immediately below for more details).
Note: these restrictions apply to the act of initiating a conversation about VAD. Staff are permitted to provide information about VAD if the consumer requests it.
Restrictions apply to a member of care staff who is not a doctor/medical practitioner. This includes staff who are nurses, personal care workers and allied health professionals. These staff must not, while providing health or professional care services to a consumer:
unless at the same time the staff member also tells the consumer that they have palliative care and treatment options available that they should discuss with their medical practitioner.
For non-care staff there are no restrictions on initiating conversations about VAD with a consumer. Non-care staff means staff who do not provide any health or personal care services to consumers, e.g. maintenance staff.
Restrictions apply to staff who are medical practitioners (i.e. doctors). These staff must not, while providing health or professional care services to a consumer:
unless at the same time they also inform the consumer about:
the treatment options available that would be considered standard care for their medical condition
Restrictions apply to some people (e.g. visiting medication practitioners) who are not staff. These individuals, and not the aged care provider, are responsible for ensuring that they understand and abide by the relevant restrictions.
To access VAD, a consumer must make a series of requests to authorised medical practitioners. The process is complex and governed by strict laws. It is the responsibility of the relevant medical practitioners – and not the aged care provider – to ensure that the process is followed correctly. Similarly, the responsibility of administering a VAD Substance falls to the consumer (if self-administering) or to the relevant practitioner (if practitioner administering). The aged care provider is not responsible for administering VAD Substances.
The aged care provider is responsible for caring for the consumer throughout the process. Providers also have some legal obligations to facilitate consumer’s access to VAD information and VAD practitioners.
Aged care staff and medical practitioners who have a conscientious objection to VAD have the right to refuse to provide information about VAD, and the right to refuse to participate in any VAD decision or process.
However, the aged care provider as an organisation still has legal obligations to provide consumers with VAD information and access to VAD medical practitioners. These obligations apply even if the organisation has a conscientious objection to VAD.
Aged care providers who choose NOT to participate in the VAD process still have legal obligations to:
The obligations mentioned in the last two dot points above are complex. For each stage of the VAD process, the aged care provider has legal obligations to allow the relevant medical practitioners to access the consumer in the home (if the consumer is a permanent resident). If the consumer is not a permanent resident, the provider has an obligation to transfer them to another facility where they can access the relevant VAD practitioners and information. But note: if the consumer’s VAD medical practitioner decides that it is not appropriate to transfer the consumer, the provider will have an obligation to grant the medical practitioner access to the consumer within the home.
To be clear: aged care providers who do not wish to participate in the VAD process are still legally obliged to allow a consumer reasonable access to all the information, medical practitioners and other supports that they may need throughout the process. This includes an obligation to allow delivery of a VAD Substance to the home, and an obligation to allow a VAD Substance to be administered within the home. Again, this obligation applies to consumers who are permanent residents. For other consumers, providers may be obliged to transfer the consumer elsewhere.
Aged care providers who choose to partner with the consumer and medical practitioners in the VAD process have legal obligations to:
The medical practitioners, and not the aged care provider, have primary responsibility for ensuring that the legal requirements governing the VAD process are met.
NSW Health: Voluntary Assisted Dying in NSW