Overnight, Queensland has become the fifth Australian State to legalise voluntary assisted dying. We explore key considerations for entities operating in the health, aged and care services sectors to prepare for implementation.
- The new Act will establish a legal framework for VAD in Queensland, allowing eligible individuals who are suffering and dying to choose the timing and circumstances of their death.
- This historic legislation follows behind similar laws in Victoria (passed in 2017), Western Australia (passed in 2019), Tasmania and South Australia (passed earlier this year in March and June, respectively).
- There will be an implementation period of approximately 15 months, with the new Act set to commence in operation from 1 January 2023.
Overnight, Queensland has become the fifth Australian State to legalise voluntary assisted dying (VAD), with the passing of the Voluntary Assisted Dying Bill 2021 (Qld).
The new Act will establish a legal framework for VAD in Queensland, allowing eligible individuals who are suffering and dying to choose the timing and circumstances of their death.
This historic legislation follows behind similar laws in Victoria (passed in 2017), Western Australia (passed in 2019), Tasmania and South Australia (passed earlier this year in March and June, respectively).
The law is the culmination of a long period of public consultation and review, with the Queensland parliament's Inquiry into aged care, end-of-life and palliative care, and voluntary assisted dying, initiated in November 2018.
This resulted in a report to parliament in March 2020 (Voluntary Assisted Dying (Report No. 34, 56th Parliament), a key recommendation of which was the introduction of a legislative scheme for VAD in Queensland. In May 2020, the Queensland Law Reform Commission was tasked with preparation of an appropriate legislative scheme. In May 2021, the Commission submitted its final report A legal framework for voluntary assisted dying, together with draft legislation which was introduced into parliament later that month.
On 16 September 2021, the Bill was passed without amendment following fierce debate in the Parliament over the preceding two days. There will be an implementation period of approximately 15 months, with the new Act set to commence in operation from 1 January 2023.
Overview of the new Act
Eligibility for VAD
Under the new Act, access to VAD is restricted to individuals over the age of 18 years, with decision-making capacity, who act voluntarily and without coercion. Subject to certain exemptions, individuals must also meet residency requirements. These include Australian citizenship, permanent residency or being ordinarily resident in Australia for at least three years. The individual must also be ordinarily resident in Queensland for at least 12 months immediately before seeking to access the scheme, or granted a residency exemption.
To be eligible for access to VAD, the person must have been diagnosed with a disease, illness or medical condition that is:
- advanced, progressive, and will cause death;
- is expected to cause death within 12 months; and
- is causing suffering that the person considers to be intolerable, including physical or mental suffering and suffering caused by treatment provided for the disease, illness or medical condition.
The requirement that death be expected to occur within 12 months is unique in Queensland. In all other States which have enacted VAD regimes there is a 6 month timeframe, save for where a person is diagnosed with a disease, illness or medical condition that is neurodegenerative (where there is a 12 month timeframe).
The Act expressly declares that persons with a disability or mental illness may be eligible to access VAD, but will not be eligible solely on the basis of their disability or mental illness.
The Request and Assessment Process
Access to VAD may only be initiated at the personal request of an individual.
The Act expressly prohibits health care workers (defined to include both registered health practitioners and other individuals who provide health services or personal care services) from initiating a discussion with a person that is in substance about VAD, and from suggesting, in substance, VAD to the person. However, a medical practitioner or nurse practitioner can initiate such a discussion or suggest VAD if they also inform the person about treatment options and palliative care options available and the likely outcome of those options.
The Act sets out a staged request and assessment process for access to VAD that is substantially similar to the process enacted in other States. The process includes the following:
- First request. The person makes a first request to access VAD to a medical practitioner. The medical practitioner must decide to accept or refuse the first request (within two business days, or immediately if the medical practitioner has a conscientious objection);
- First assessment. If the medical practitioner accepts the first request they become the coordinating practitioner for the person. They must provide the person with approved information (information about VAD, which has been approved by the Chief Executive of Queensland Health and published on the Queensland Health website) and must complete a first assessment. This requires an assessment of whether the person is eligible to access VAD and, if so, provision of specified information to the person and a determination about the person's understanding of that information. The information includes, amongst other things, the person's diagnosis and prognosis, treatment options and alternatives to VAD, the process for access to VAD, and the risks and expected outcome of VAD;
- First assessment record form. If the coordinating practitioner determines that the person meets the requirements of the first assessment (that is, the person is both eligible and understands the information provided), the coordinating practitioner must notify the person of the outcome and, within two business days, complete a first assessment record form and provide a copy to the Voluntary Assisted Dying Review Board (VADRB). The coordinating practitioner must also refer the person to a second medical practitioner for an independent assessment, known as a consulting assessment.
- Accept or refuse. The second medical practitioner must decide to accept or refuse the referral (within two business days or immediately if the medical practitioner has a conscientious objection), and must complete a record of the decision and provide a copy to the VADRB (within two business days).
- Consulting assessment. If the second medical practitioner accepts the referral they become the consulting practitioner for the person. They must complete a consulting assessment which, as with the first assessment, requires an assessment of whether or not the person is eligible for access to VAD and, if so, provision of specified information to the person and a determination about the person's understanding of that information.
- Consulting assessment record form. If the consulting practitioner determines that the person meets the requirements of the consulting assessment (that is, the person is both eligible and understands the information provided), the consulting practitioner must notify the person and the coordinating practitioner of the outcome. Within two business days, they must also complete a consulting assessment record form and provide a copy to the VADRB.
- Second request. The person may then make a second request to the coordinating practitioner for access to VAD. The request must be in writing and specify that the person makes it voluntarily and without coercion. It must also indicate that they understand its nature and effect, and must be signed by the person (or someone else on their behalf if the person is unable to sign or directs the person to sign the request) in the presence of two eligible witnesses. The coordinating practitioner must provide a copy to the VADRB (within two business days).
- Final request. The person may then make a final request to the coordinating practitioner for access to VAD. The final request may not be made within a period fewer than nine days from and including the day on which a first request was made. (This is unless the coordinating practitioner considers that the person is likely to die, or lose decision-making capacity beforehand.), It must also not be made until the day after the day on which the consulting assessment was completed. The coordinating practitioner must review the first assessment record form, consulting assessment record form, and the second request, and then complete a final review form certifying that the request and assessment process is complete and the coordinating practitioner is satisfied that the person has decision-making capacity and is acting voluntarily and without coercion. The coordinating practitioner must provide a copy to the person and the VADRB (within two business days).
- Administration decision. In consultation with and on the advice of the coordinating practitioner, the person makes an administration decision as to whether the VAD substance is to be self-administered or practitioner administered. The default is self-administration. The substance is then prescribed by the coordinating practitioner and then supplied and administered according to the administration decision.
At both the first assessment and consulting assessment stages, there is opportunity for the coordinating practitioner and consulting practitioner, respectively, to refer the person to another party with appropriate skills and training to determine whether or not the person has a disease, illness or medical condition that meets the requirements of eligibility, or whether or not the person has decision-making capacity. The coordinating practitioner may also refer the person for a further consulting assessment by another medical practitioner if the consulting practitioner assesses the person as not meeting the requirements of a consulting assessment.
The person may decide at any time not to continue the request and assessment process, and the process ends.
The Act provides for conscientious objection on the part of registered health practitioners and speech pathologists (who are not registered health practitioners but may play a role in caring for persons seeking access to VAD).
Individual registered health practitioners and speech pathologists who, for reasons of a conflict with their own personal beliefs, values or morals, may refuse to participate in the process of VAD. This includes a right to refuse to provide information about VAD, to refuse to participate in the request and assessment process, to refuse to participate in an administration decision, to refuse to prescribe a VAD substance, and to refuse to be present at the time of the administration of a VAD substance.
However, the Act requires that registered health practitioners who refuse to participate in the process of VAD on the grounds of conscientious objection must inform the person that other health practitioners, health service providers or services may be able to assist the person, and give the person information about such an entity whom the individual believes is likely to be able to assist, or the details of an official VAD care navigator service.
Similarly speech pathologists who refuse to participate in the process of VAD on the grounds of conscientious objection are required to inform their employer, or any other person who has requested speech pathology services in relation to VAD, of their objection and of another speech pathologist or speech pathology service whom the individual believes is likely to be able to assist. Speech pathologists are prohibited from intentionally impeding a person's access to VAD. The Act also places additional obligations on speech pathologists who are employed or engaged by a health service provider that the speech pathologist is aware provides VAD services, requiring that the speech pathologist inform the health service provider of their conscientious objection and discuss with the health service provider how they can practise in accordance with their beliefs without placing a burden on their colleagues or compromising a person’s access to VAD.
One of the more contentious aspects of the Act is the manner in which it deals with entities that do not wish to provide VAD services at their facility/ies. Such entities may object to participate in the scheme for a variety of reasons including, for example, financial or resourcing considerations, or based on policy or religious affiliation.
With the exception of South Australia, which has enacted similar provisions to those enacted in Queensland, other jurisdictions have not addressed the issue of institutional objection in their respective VAD statutes. Victoria and Western Australia have issued policy guidelines to deal with the rights and responsibilities of non-participating entities. It is anticipated that a similar approach will be adopted in Tasmania.
The Act seeks to reconcile the competing rights and interests of certain entities, being those that provide health services, residential aged care, or personal care services, to not provide VAD services on the one hand, and individuals seeking to access VAD on the other. The Act recognises that such entities are not obliged to provide VAD services, but requires that they meet certain minimum access requirements.
In particular, where a person receiving services at a relevant facility asks for information about VAD, the facility is required to permit reasonable access to the facility by others for the purposes of provision of information about VAD services. Entities are expressly prohibited from hindering a person’s access to information about VAD.
Similarly, entities are required to permit reasonable access to the facility by others for the purposes of enabling a person to make a first, second, or final request. Where a requested medical practitioner is not available to attend the facility, the entity must take reasonable steps to facilitate transfer of the person to and from a place outside the facility where the request may be made to the requested medical practitioner or another medical practitioner.
In respect of the completion of a first assessment, consulting assessment, or administration decision, the Act draws a distinction between individuals who are a permanent resident of a facility (a person who resides at the facility or a person who has security of tenure, but excluding a temporary resident) and those who are not. Where a person is a permanent resident, an entity is required, in the first instance, to permit reasonable access to the facility for the purposes of the assessment or decision. Where the relevant medical practitioner is not available to attend the facility, the entity must take reasonable steps to facilitate transfer of the person to and from a place outside the facility where the assessment or decision may be made by the relevant medical practitioner or another medical practitioner.
Where a person is not a permanent resident of a facility, the entity must take reasonable steps to facilitate transfer of the person to and from a place outside the facility where the assessment or decision may be made by the relevant medical practitioner. However, if the coordinating practitioner (or other relevant practitioner for the person) is of the opinion that the transfer of the person would be unreasonable, then the entity is required to permit reasonable access to the facility for the purposes of the assessment or decision. Considerations as to the reasonableness or otherwise of the transfer, to which the coordinating practitioner (or other relevant practitioner for the person) must have regard include, whether the transfer would be likely to cause serious harm to the person or to adversely affect the person's access to VAD, the availability of the place to receive the person, whether the transfer would cause undue delay or prolong suffering, and whether the transfer would cause the person to incur financial loss or costs.
The distinction between permanent residents and non-permanent residents is also maintained at the stage of administration of a VAD substance. If the person is a permanent resident and has made a practitioner-administration decision, then the entity must allow reasonable access to the facility for the purposes of the administration. Where a person has made a self-administration decision, the entity is expressly prohibited from hindering a person's access to a VAD substance.
In the case of persons who are not a permanent resident of a facility, the entity must take reasonable steps to facilitate transfer of the person to a place outside the facility where the person may be administered or self-administer a VAD substance. However, similar considerations as to the reasonableness of transfer, as noted above, fall to be considered by the coordinating practitioner (or other relevant practitioner for the person), save that the incursion of financial loss or costs is not a relevant consideration. If the transfer is not reasonable, the person is to be treated as if they were a permanent resident at the facility for the purposes of the administration of the VAD substance.
If a relevant entity does not provide, at a facility at which the entity provides relevant services (i.e. health services, residential aged care, or personal care services), services associated with VAD, the entity must publish information about the fact that those services are not provided at the facility. This must be done in a way that is likely to come to the attention of people who are, or may in the future, receive services at the facility. Examples include brochures, publication on the entity's website and signs on display at the facility.
Review of Decisions
The Queensland Civil and Administrative Tribunal is vested with jurisdiction in relation to certain reviewable decisions under the Act. These are limited to decisions by a coordinating practitioner or consulting practitioner, regarding a first assessment or consulting assessment respectively, in relation to whether or not the person meets residency requirements for eligibility, has decision-making capacity, or is acting voluntarily and without coercion. Decisions by a coordinating practitioner at the final review stage in relation to whether or not a person has decision-making capacity, or is acting voluntarily and without coercion, are also reviewable decisions.
The person who is the subject of the decision, an agent of that person, or any other person who has a sufficient and genuine interest in the rights and interests of the person the subject of the decision are each eligible to bring an application for review in the tribunal. An application must be made within five business days after the decision is notified to the person subject to the decision, or the applicant becomes aware of the decision.
An application to QCAT suspends the VAD process.
The Act expressly declares that a person who dies as a result of administration of a VAD substance does not die by suicide and is taken to have died from the disease, illness or medical condition from which the person suffered and for which they sought access to VAD.
The Act protects persons assisting access to VAD, or present when a substance is administered, from criminal liability. The Act further declares that no civil or criminal liability attaches to a person for an act done or omission made in good faith and without negligence in accordance with, or for the purposes of, the Act.
Health practitioners and ambulance officers are also protected from civil or criminal liability for not administering life sustaining treatment to a person whom the individual believes on reasonable grounds is dying as a result of administration of a VAD substance.
Role of the Voluntary Assisted Dying Review Board
The Act establishes the VADRB to monitor the operation of the Act. It is the role of the VADRB to review each completed request for VAD to ensure compliance with the Act. The VADRB is also tasked with record keeping and information management functions.
Preparing for implementation
In order to prepare for the new law entities operating in the health, aged and care services sector should give consideration to:
- whether the entity will provide access to VAD services;
- if so, how coordination of care will occur for persons seeking to access VAD;
- how conscientious objection of individuals will be managed;
- ensuring that individuals who will be involved in the provision of VAD services receive relevant education and training, including as mandated under the Act;
- reviewing and updating existing policies and procedures relating to end-of-life decision-making and preparing any additional policies and procedures required in relation to VAD;
- reviewing and updating patient information documentation relating to end-of-life decision-making to include information about VAD;
- preparing market facing communications about the entity's participation in the VAD scheme.