Voluntary Assisted Dying in Australia: What you need to know Voluntary Assisted Dying in Australia: What you need to know

Voluntary Assisted Dying in Australia: What you need to know

7 October 2021 | Health Sector

The latest piece of end-of-life legislation passed Australian State parliament in September, with Queensland’s Voluntary Assisted Dying Act being made accessible to eligible Queenslanders from 2023. This is now the fifth Australian state to pass legislation in this area.

The Australian “debate” around voluntary dying has been one charged with emotion, which is unsurprising considering the social and ethical considerations also in play.

Objectively, the laws mean that there will be changes in end-of-life healthcare in Australia. This will impact health practitioners, individuals, and institutions alike.

Where is VAD legal?

The only two jurisdictions in Australia where people can currently access Voluntary Assisted Dying (VAD) are Western Australia and Victoria.

Long implementation periods mean that VAD remains illegal in some states, even though they have passed the law (i.e., Queensland, Tasmania, South Australia).

VAD has not become law in New South Wales, Northern Territory or Australian Capital Territory.1

Jurisdiction Law passed? Law in effect? Date in Effect

Victoria

Yes2

Yes

June 2019

Western Australia

Yes3

Yes

1 July 2021

Tasmania

Yes4

No

23 October 2022

South Australia

Yes5

No

Late 2022 / Early 2023

Queensland

Yes6

No

1 January 2023

New South Wales

No

No

-

Northern Territory

No

No

-

ACT

No

No

-

Who can (or will be able to) access VAD in Australia?

Although the wording of the criteria for each state is different, broadly speaking the same eligibility requirements are consistent nationally. Persons must be:

  • Aged 18 years +
  • An Australian citizen or permanent resident
  • An ordinary resident of the state for at least 12 months
  • Have decision making capacity
  • Diagnosed with a disease, illness or medical condition that is advanced, progressive and will or will be expected to cause death within a specific time frame
  • Suffering intolerably (or suffering that cannot be relieved in a tolerable manner)

How does the law compare between states?

There is no uniform national approach to legislating voluntary assisted dying in Australia. Instead, each state has its own legislation which has been carefully crafted and debated.

The Queensland scheme, in particular, has some differences when compared to other states. Key areas which have attracted attention are:

1. Time frame for prognosis

The time frame of prognosis is largely consistent across all states except Queensland, where a longer prognosis time is specified under the new legislation.

State Prognosis Neurodegenerative Prognosis Exceptions?

Victoria

6 months

12 months

N

Western Australia

6 months

12 months

N

Tasmania

6 months

12 months

Y - On application, the commission has discretion to grant an exemption

South Australia

6 months

12 months

N

Queensland

12 months

12 months

N

2. Conscientious objections

The ability for institutions and individuals to decline to participate in the VAD process is one of the key issues raised in the debate. More recent legislation specifically addresses these issues, whereas the earlier laws offer less guidance.

State Can institutions Object? Can individual practitioners Object? Requirements when Objecting?

Victoria

Not specified

Yes

Not specified 

Western Australia

Not specified

Yes

Must inform the patient of refusal and supply approved information

Tasmania

Not specified

Yes

Must provide contact details of VAD commission

South Australia

Yes

Yes

Institutions have a range of specific requirements, dependant on unique facts of each case.

Requirements are not specified for individuals. 

Queensland

Yes

Yes

Individuals must supply information about others and details of VAD care navigator service. 

Institutions have a range fo specific requirements, dependant on unique facts of each case.

While the above table provides a snapshot of the law, it is important to note that each state has some differences in the types of services that can be objected to and how that objection can be communicated to patients.

What are the implications of state-based laws on a national level?

While there are technical differences within each jurisdiction, similar considerations will impact the health law industry on a national level. We may see:

  • Conflict with federal laws. As Commonwealth laws generally take precedence to state laws, there is some uncertainty when:
    • The Euthanasia Laws Act 1997 (Cth) is still in operation which prevents territories from legislating on the area.
    • In the Commonwealth Criminal Code it is an offence to use a “carriage service” to access, transmit, publish or distribute information that counsels or incites suicide.7 This creates uncertainty as to what is and isn’t legal for medical practitioners operating in this space, particularly during a time where telehealth is so prominent.
  • Jurisdictional issues for patients. Differences in each state mean there is potential for there to be stark differences between who can access what types of VAD services based on a person’s postcode. When people move interstate regularly (perhaps for a specific treatment) or are “border residents”, they may struggle to meet the residency requirement within the eligibility criteria. 
  • Uncertainties as to what is required when exercising the right to conscientiously object. Some states legislation is silent on the issue (such as Victoria), and others have specific requirements that need to be followed (such as Queensland).
  • Conflict between individual practitioners’ views. Parts of the legislation, such as the requirement to have a specific time frame for prognosis and the requirement to have capacity, require definitive black and white analysis from practitioners. What does a practitioner do when they aren’t entirely certain, or if another practitioner disagrees with their assessment?

If you’d like to know more about voluntary assisted dying in your state, or you’re after specific advice, please contact our Health Law experts below.

 

1 The Euthanasia Laws Act 1997 (Cth) prevents territories from being able to legislate in this area.
2 Voluntary Assisted Dying Act 2017 (Vic).
3 Voluntary Assisted Dying Act 2019 (WA)
4 End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas).
5 Voluntary Assisted Dying Act 2021 (SA).
6 Voluntary Assisted Dying Bill 2021 (Qld) awaiting assent.
7 Criminal Code Act 1995 (Cth) s 474.29A.

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