Voluntary assisted dying in aged care: what you need to know

All states’ voluntary assisted dying laws impose rights and obligations on aged care health professionals, and in some states, aged care services, writes Penny Neller.

All states’ voluntary assisted dying laws impose rights and obligations on aged care health professionals, and in some states, aged care services, writes Penny Neller.

In May 2022 New South Wales became the final Australian state to legalise voluntary assisted dying (VAD).

VAD is currently operating in Victoria and Western Australia. It will start in Tasmania, South Australia, Queensland and New South Wales between October 2022 and November 2023.

Penny Neller

VAD is illegal in the Northern Territory and Australian Capital Territory. However, a private member’s bill seeking to overturn existing laws that prevent the territories from legislating on VAD will be introduced to federal parliament on 1 August.

All states’ VAD laws impose rights and obligations on health professionals in aged care, and in some states, aged care services. These laws are complex, and though similar, there are some key differences across states.

VAD will be an end-of-life option that older people in aged and palliative care may choose to access. Here is what you need to know about VAD in aged care.

What is VAD?

VAD involves assistance provided to a person by a health practitioner to end their life. In Australia, this includes:

  • self-administration, where the person takes the VAD medication themselves, and
  • practitioner administration, where a health practitioner administers the medication to the person at their request.

Accessing VAD is voluntary. It has to be the person’s own choice, made while they have decision-making capacity. Families and substitute decision-makers cannot request VAD for a person.

Who can access it?

In all states there are strict eligibility criteria for a person to access VAD.

A person must be an adult with decision-making capacity. The person must have an advanced and progressive illness that will cause death within six months, or 12 months for a neurodegenerative condition. It is 12 months for all conditions in Queensland.

The person must be experiencing intolerable suffering. In some states, the person’s condition must also be incurable, and in Tasmania it must be irreversible. The person’s request must be voluntary and enduring (ongoing). They must also meet residency criteria.

The process for accessing voluntary assisted dying in all states except Tasmania

How does it work?

There is a rigorous request and assessment process for accessing VAD. Diagram 1 above illustrates the process in Victoria, Western Australia, South Australia, Queensland and New South Wales. Tasmania’s process is similar but has additional requirements.

The first port of call for most people will be their general practitioner. The person will need to make three separate requests for VAD and be assessed as eligible by at least two independent medical practitioners, who have undertaken specialised training.

A person can change their mind at any time and decide not to access VAD.

What does VAD mean for aged care health practitioners and care workers?

The laws impose obligations on health professionals including health practitioners and care workers in aged care. There are requirements relating to participating in VAD, discussing VAD and providing VAD information to patients and residents.

These obligations differ depending on the state, and the health professionals’ role, such as whether they are a registered health practitioner or a care worker. Table 1 below provides an overview.

Health professionals with a conscientious objection can refuse to be involved in VAD, but in some states they will still have certain legal obligations, for example, to provide information to a person.

For health professionals willing to be involved in VAD, whether they will be able to do so will be informed by whether their aged care service or employer chooses to provide VAD.  

Source: ELDAC

What does VAD mean for aged care services?

In all states, aged care institutions, such as aged care facilities, and private hospitals may decide whether to provide VAD, and what support they provide residents or patients seeking VAD.

The laws in Victoria, Western Australia and Tasmania do not discuss institutional participation in VAD. Institutions in those states may therefore determine their level of involvement. Victoria Health and Western Australia Health have developed guidance documents for institutions in those states.

The laws in South Australia, Queensland and New South Wales allow institutions to choose whether to provide VAD. However, those which decide not to provide VAD have certain obligations so that a person can access VAD if they wish.

These include allowing residents to access VAD information, and to make VAD requests at the institution. Residential facilities have additional obligations to facilitate access to VAD for both permanent and non-permanent residents.

Table 2 below provides an overview of the laws in each state. These laws are very complex. Aged care institutions should seek independent legal advice about what the VAD laws mean for them.

Source: ELDAC

It’s important that everyone working in aged care knows the VAD laws in their state to understand their legal duties, and support delivery of quality, safe, patient-centred aged care. Knowing these laws can also support aged care services to decide whether to provide VAD, and assist their policy development and planning.

Useful resources

Penny Neller is project coordinator of National Palliative Care Projects at the Australian Centre for Health Law Research at the Queensland University of Technology

Ben White, Katrine del Villar, Lindy Willmott and Patsy Yates from End of Life Directions for Aged Care and the Australian Centre for Health Law Research at Queensland University of Technology contributed to this article

This story appears in Australian Ageing Agenda magazine (July-Aug 2022) – subscribe to AAA magazine

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Tags: Australian centre for Health Law Research, Penny Neller, queensland university of technology, voluntary assisted dying in aged care,

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