Voluntary assisted dying laws in South Australia – impacts on the health care and aged care sectors

After almost three decades, and with no less than 17 attempts, South Australia’s parliament passed the State’s first voluntary assisted dying (VAD) legislation on 24 June 2021, allowing terminally ill persons who satisfy certain criteria to access a lethal drug to end their lives in order to relieve their suffering. South Australia is now the fourth State in Australia to legalise VAD, although the Act is yet to come into operation.

Whilst the topic is a sensitive one, and not without controversy, it is important to understand the legal framework that the Act sets out, so that businesses and organisations in the health care and aged care sectors may appropriately adapt to the changes. In particular, and unique to South Australia’s legislation, is the introduction of additional requirements for certain health services and facilities, such as aged care facilities, that do not provide access to VAD services.

Who may access VAD?

If a person wishes to access VAD, they must first satisfy specific criteria in order to be eligible. Importantly, this includes that the person has been diagnosed with a disease, illness or medical condition that is:

• incurable;
• advanced, progressive and will cause death;
• expected to cause death within six months (or 12 months if diagnosed with a neurodegenerative disease); and
• causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.

It is important to note that a person will not be eligible for access to VAD if diagnosed with a disability or a mental illness only.

The VAD process

There are several stages that a person is required to undertake in order to access VAD. In short, the steps required are to make a first request to a coordinating medical practitioner (often a GP). That medical practitioner, and a second consulting medical practitioner must make an assessment of the person’s eligibility. The person seeking VAD must then sign a written declaration that they understand their decision and were not coerced, before making a final request for access to VAD. The person must also be the subject of a VAD permit.

VAD permits are issued either for self-administration or practitioner administration. The latter refers to a practitioner administering the lethal drug on the basis that the person is physically unable to self-administer.

The Act also provides certain safeguards by prohibiting family members, or persons with knowledge of possible financial gain from the person’s death, from undertaking certain roles in the VAD process (i.e., medical practitioner or interpreter).

Impacts on the health and aged care sector

Medical practitioners

All medical practitioners are prohibited from suggesting or discussing VAD with a patient unless the patient has initiated that discussion, and have (along with their employer) additional mandatory notification requirements to notify the Australian Health Practitioner Regulation Agency of any non-compliance by a medical practitioner with the Act.

Medical practitioners who wish to accept VAD requests as a coordinating or consulting medical practitioner must hold certain qualifications and follow a strict reporting regime. Conversely, medical practitioners who do not wish to accept VAD requests are provided rights under the Act that allow them to conscientiously object to having any involvement with any part of the VAD process.

Health services establishments

“Health services establishments”, as defined in the Act, may conscientiously object to providing access to VAD (essentially “opting-out”). This includes establishments such as private hospitals, private clinics, and other facilities that provide certain health services, for example in-patient and out-patient treatment. This does not, however, apply to facilities like residential aged care facilities, retirement villages or nursing homes.

Health services establishments are permitted to refuse to authorise or permit any VAD process for their patients, but must then have specific transfer procedures in place to transfer patients to and from the establishment to access VAD in the event that a request by a patient is made.

Residential aged care, retirement villages and nursing homes

Facilities such as residential aged care, retirement villages and nursing homes are also subject to certain requirements under the Act, particularly where they do not provide access to VAD services.

If not providing access to VAD services, these facilities must publish that information in a manner that would allow potential future residents of the facility to be made aware of this, for example through the facility’s marketing materials or website. Further, in the event that a resident does request access to VAD, the facility must:

• provide residents with reasonable access to VAD and must not hinder the resident from accessing information about VAD;
• allow reasonable access by a medical practitioner to residents for any step in the VAD process, including access to a lethal drug to end their life;
• where reasonable access is not possible, have transfer procedures in place to transfer the resident to and from a medical practitioner so that the resident may access VAD.

What’s next?

SA Health foreshadows an 18 to 24 month timeframe to implement the Act. We expect to see the regulatory framework being developed in the coming months, such as the establishment of the Voluntary Assisted Dying Review Board.

Preparatory steps should be taken by businesses in the health care and aged care sectors to ensure they are ready for the Act’s commencement. Health services establishments wishing to opt out of providing access to VAD should have procedures in place to adhere to specific opt-out requirements. Similarly, businesses in the aged care sector should establish appropriate policies and procedures to ensure compliance with the Act in anticipation of its commencement.

Employers of medical practitioners should be aware of and prepared for the additional requirements and regulations imposed on medical practitioners in the event that they accept requests by patients for access to VAD. Strict compliance with the Act is required, with criminal penalties available for non-compliance; medical practitioners and employers should ensure they are familiar with the VAD regulatory framework before it comes into operation.

Author: Jessica Punch

Title: Associate

Practice: Disputes

This article provides general comments only. It does not purport to be legal advice. Before acting on the basis of any material contained in this article, we recommend that you seek professional advice.