Voluntary Assisted Dying commences 28 November 2023 in New South Wales – update and resources for aged care providers

On 28 November 2023, the Voluntary Assisted Dying Act 2021 (NSW) (VAD Act) will commence in New South Wales.  

Outside NSW, voluntary assisted dying (VAD)  legislation is currently available in Victoria, Western Australia, Tasmania, South Australia and Queensland.

Whilst VAD remains illegal in Northern Territory and the Australian Capital Territory, it is reasonable to assume that these two territories will follow suit since 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. Both territories are currently undertaking consultation in respect of VAD laws.

Eligibility Criteria

There are strict eligibility criteria for persons who wish to access VAD in NSW. A person seeking access to a 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
• at the time of making a first request to access VAD, must have resided in NSW for at least 12 months (or have been granted an exemption from this requirement).

Obligations of aged care providers

The VAD Act contains particular provisions for residential aged care providers. The provisions impose obligations on aged care providers to:

• not hinder a person from accessing information about VAD or accessing a VAD substance;
• provide reasonable access to the care service to medical practitioners so they may consult with residents for requests, assessments, giving written declarations and making decisions in respect of VAD;
• allow reasonable access to the care service to a person involved in the administration of VAD substance to a resident; and
• take reasonable steps to facilitate the transfer of a resident to a place for requests, assessments, giving written declarations and making decisions in respect of VAD, or in certain circumstances where they may be administered or may self-administer a VAD substance.

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.

As indicated above, the VAD Act imposes obligations on providers to provide access to information and to allow medical practitioners to have access to the care service including for the purposes of allowing persons to have VAD administered in residential aged care facilities in some circumstances.

Approved providers that do not wish to provide VAD services are required to publicly disclose that they do not provide VAD services in their homes to ensure that people are aware of their position. This does not remove the requirements on the provider to comply with the general obligations.

Organisations may wish to consider including terms in their resident agreements about their position on the provision of VAD services.

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

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

Conscientious objections

There are also 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

It is a crime under the Crimes Act 1900 (No 40) (NSW) to induce another person to make a request for access to VAD or to access VAD, and to self-administer a VAD substance. 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 inducing a care recipient to make a request for access to VAD or to access VAD, and to self-administer a VAD substance.

In addition, the VAD Act expressly provides that a contravention of a provision of the Act by a registered health practitioner is capable of constituting unsatisfactory professional conduct or professional misconduct for the purposes of the Health Practitioner Regulation National Law. Further, the VAD Act specifically provides that a health practitioner must not initiate a discussion with a person that is about voluntary assisted dying, or suggest voluntary assisted dying to the person.

VAD Resources for providers – Thomson Geer documents and advice  

Approved providers should ensure they are in a position to meet their obligations under the NSW VAD Act by 28 November 2023.

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; and
• any consequent amendments to your resident agreement, policies and procedures and disclosure documents 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 aged care providers (that can be adopted dependent on your organisation's position) including:

• a VAD policy and procedure;
• A VAD fact sheet for staff and residents;
• a VAD disclosure statement;
• relevant clauses to be included in your resident agreement; and  
• webinar training sessions for staff and management.

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

Authors

Clint Bowman | Senior Associate | +61 7 3338 7544 | cbowman@tglaw.com.au

Julie McStay | Partner | +61 7 3338 7522 | jmcstay@tglaw.com.au

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