On 1 January 2023, the Voluntary Assisted Dying Act 2021 (Qld) will take effect in Queensland.

Voluntary assisted dying (VAD) is currently operating in Victoria, Western Australia and Tasmania. South Australia will commence on 31 January 2023, New South Wales on 28 November 2023.

Whilst VAD remains illegal in Northern Territory and the ACT, it is reasonable to assume that that these two territories will follow suit with the rest of Australia after the Commonwealth legislated to remove the key legal barrier for the territory governments to introduce their own VAD legislation, should they choose to do so.

Eligibility Criteria

There are strict eligibility criteria for persons who wish to access VAD in Queensland. A person seeking access to VAD scheme must:

• have been diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death, and is expected to cause death within 12 months, and is causing intolerable suffering;
• have decision-making capacity in relation to VAD;
• be acting voluntarily and without coercion;
• be 18 years of age;
• be an Australian citizen, permanent resident or have resided in Australia for at least three years (or be granted a residency exemption); and
• have resided in Queensland for at least 12 months (or be granted a Queensland residency exemption).

Obligations of aged care providers

The VAD Act applies to residential aged care providers. The provisions impose obligations on aged care providers to:

• not hinder a person from accessing information about VAD; and
• provide reasonable access to the home to medical practitioners to respond to requests for information about VAD and provide access for assessments and making decisions.

In some circumstances approved providers may take steps to facilitate the transfer to and from a place where the resident can access a VAD service.

Right of aged care providers to refuse to participate in VAD

The VAD Act allows residential aged care providers to refuse to participate in VAD, however there are limitations to the right to refuse. The VAD Act imposes obligations on providers to provide access to information and to allow medical practitioners to have access to the home including for the purposes of allowing persons to have VAD administered in residential aged care facilities in some circumstances.

Some organisations may wish to include terms in their resident agreements about their position on the provision of VAD services i.e. they do not provide VAD services and they require residents to acknowledge that is their position.

Care needs to be taken in relation to these provisions to ensure they are compliant with the VAD Act and aged care obligations, including the security of tenure provisions of the User Rights Principles. We can provide advice to you in this regard.

In addition to the general obligations, approved providers that do not wish to provide VAD services are required to publicly disclose that they do not provide the VAD services in their homes to ensure that people are aware of their position.

This information should be included, for example, in disclosure statements for prospective residents (to be included in your pre admission materials), a policy and procedure for staff, amendments to your resident agreement and a position statement on the provider’s website.

Conscientious objections

There are provisions for health practitioners who do not wish to participate in VAD services to refuse to do so on the basis of a conscientious objection.

A conscientious objection is a refusal to provide or participate in a lawful treatment or procedure because it conflicts with a person’s beliefs, values or moral concerns.

Health practitioners who do not wish to participate in the VAD process due to conscientious objection must:

• inform the person who is seeking the information that there are other practitioners available who may be able to assist the person; and
• give the person information about those practitioners or services.

Penalties for non-compliance

The VAD Act makes it an offence (maximum seven years imprisonment) to coerce or induce another person to make or revoke a request for access to VAD. Care needs to be taken to ensure that at no stage during the VAD process does an approved provider or their staff engage in behaviour that could be construed as coercing a resident to revoke a decision to request access to voluntary assisted dying.

In addition, non-compliance with the legal obligations under the VAD Act may result in health service complaints to the Aged Care Quality and Safety Commission, the Office of the Health Ombudsman, and/or the Australian Health Practitioner Regulation Agency (AHPRA).

VAD Resources for providers – Thomson Geer documents and advice  

The VAD Act commences operation in Queensland on 1 January 2023.

Approved providers should ensure they are in a position to meet their obligations under the VAD Act by 1 January 2023. When determining the position your organisation might adopt in respect of VAD (and the policy position that will be reflected in your documents), a provider should consider at least the following issues:

• the organisation’s position on providing VAD services for current and future residents;
• responding to requests for information including referral pathways and clinical handover;
• transfer of eligible persons and facilitating access to the facility by authorised VAD practitioners or employees from the Queensland Voluntary Assisted Dying Support Service;
• management of VAD substances in the facility;
• restrictions on healthcare workers initiating discussions about VAD;
• management of conscientious objections; and
• ensuring the privacy and confidentiality of residents accessing a VAD service.

Thomson Geer can provide advice in relation to:

• a provider’s right to refuse to provide VAD services (if you choose to do so);
• the interaction with the Aged Care Act 1997 (Cth), the relevant Aged Care Principles (including the User Rights Principles which deal with security of tenure) as well as the Aged Care Quality Standards and new Code of Conduct for aged care providers;
• any consequent amendments to your resident agreement to ensure you do not offend the User Rights Principles which deal with the security of tenure requirements.

Thomson Geer has also prepared resources for residential aged care providers (that can be adopted dependent on your organisation’s position) including:

• a VAD policy and procedure;
• a VAD disclosure statement; and
• relevant clauses to be included in your resident agreement.

For further assistance, please contact our Health, Aged Care and Retirement Villages team.