With new voluntary assisted dying (VAD) laws soon to commence in New South Wales, and new VAD legislation tabled in the ACT, it’s time to recap the status of VAD laws across Australia and their effects on residential aged care providers.
Although the precise definition varies across jurisdictions, VAD generally refers to the administration of a voluntary assisted dying substance to end a person’s life. In most Australian jurisdictions, VAD is (or will be) available to people who are suffering and dying from an advanced and progressive life-threatening condition. Strict eligibility criteria set out who can access VAD. An important criterion, as the term “voluntary” indicates, is that to access VAD the individual must have decision-making capacity throughout the entire process.
New South Wales
The Voluntary Assisted Dying Act 2022 (NSW) will come into effect on 28 November 2023.
Australian Capital Territory (ACT)
The Voluntary Assisted Dying Bill 2023 (ACT) was presented to the Legislative Assembly on 31 October 2023. The Bill is in its early stages and is not yet a law. If it passes, the Bill will establish a framework for VAD in the ACT.
The proposed ACT laws are largely similar to the VAD laws in other jurisdictions but differ in two notable ways:
Similar to laws in South Australia, the ACT Bill sets penalties that will apply to care facilities that hinder a consumer’s access to VAD.
Status of VAD Laws in Each Jurisdiction
Jurisdiction |
Legislation |
Commencement |
Queensland |
Voluntary Assisted Dying Act 2021 (Qld) |
Commenced 1 January 2023.
|
South Australia |
Voluntary Assisted Dying Act 2021 (SA) |
Commenced 31 January 2023. |
Western Australia |
Voluntary Assisted Dying Act 2019 (WA) |
Commenced 1 July 2021. |
Victoria |
Voluntary Assisted Dying Act 2017 (Vic) |
Commenced 19 June 2019. |
Tasmania |
End of Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) |
Commenced 23 Oct 2022.
|
New South Wales |
Voluntary Assisted Dying Bill 2021 (NSW) |
Will commence 28 November 2023. |
Northern Territory |
No legislation as at August 2023. Consultation underway. |
Until recently the territories did not have power to make VAD laws. That situation changed with the passing of the Restoring Territory Rights Act 2022 (Cth).
According to the Northern Territory Government, “the NT is now in a position to consider the legalisation of Voluntary Assisted Dying (VAD). The NT Government is commencing a community consultation process for the development of a framework for VAD that will meet the needs of our community members, ensuring this care is accessible, appropriate and safe.” Following consultation, an independent panel will provide a written report to the NT Government by July 2024. |
Australian Capital Territory |
Voluntary Assisted Dying Bill 2023 (ACT) |
This Bill was presented to the Legislative Assembly on 31 October 2023. The Bill is in its early stages and is not yet a law. If it passes, the Bill will establish a framework for VAD in the ACT.
|
There are strict eligibility criteria that an individual must meet to access VAD. Although criteria differ slightly for each jurisdiction, there are some commonalities. Generally, the person:
The timeframe in which the disease, illness or medical condition must be expected to cause death differs across each jurisdiction but is generally within six to 12 months (although the timeframe does not apply at all in the ACT Bill). A person may not access VAD because the person has a disability or is diagnosed with a mental illness.
A commonality among each jurisdiction’s legislation is that to access VAD the individual must have decision-making capacity throughout the entire process. The individual must understand the information or advice about VAD and be able to use that information as part of the process of making their decision. The specific definition of decision-making capacity differs for each state.
Another commonality is that residential aged care staff and health care practitioners have the right to refuse to participate in VAD if they have a conscientious objection.
Health care workers, including residential aged care staff, must not initiate discussions about VAD, this includes raising the topic of VAD with a resident or suggesting VAD to a resident. Doing so is considered an offence and unprofessional conduct. (There is a limited exception in Western Australia, where a medical practitioner or nurse practitioner can discuss VAD with a person under very specific circumstances). If, however, a resident requests information or they initiate a discussion about VAD, healthcare workers can provide information or answer questions about VAD that have been asked of them, provided they have the knowledge and are comfortable doing so.