On 19 May 2022, the NSW Parliament passed the Voluntary Assisted Dying Act 2022 (‘the Act’) which will allow eligible persons access to voluntary assisted dying services from 28 November 2023.  This will effectively give those persons control over the timing of their death.

The Act has been designed to prioritise personal autonomy, and to provide those in the end stages of life with greater levels of support and medical attention (including palliative care) for the purpose of minimising suffering.

Under the Act, voluntary assisted dying is not considered suicide, or an attempt by a person to cause serious physical harm upon him or herself for the purpose of the Mental Health Act 2007.

Eligibility

To be eligible under the Act, a person must:

• be an adult;
• be an Australian citizen or Permanent Resident; and
• have been an Australian resident for a continuous 3 year period, and a resident of NSW for a period of at least 12 months at the time of making a first request.

Clinically, the person must have been diagnosed with at least one advanced and progressive terminal illness, which on the balance of probabilities will lead to death within a period of 6 months, or 12 months in the context of neurodegenerative disease.

A person is ineligible if the condition is purely dementia or a mental health impairment.

Liability and Implications to Health Regulations

The Voluntary Assisted Dying Act 2022 provides that a health care worker who is providing care to a patient must not initiate a discussion or make suggestions regarding voluntary assisted dying, unless the practitioner also informs the patient about standard treatment and palliative care options, as well as treatment outcomes for the condition.

Contravention may constitute unsatisfactory professional conduct or misconduct for the purposes of the Health Practitioner Regulation National Law (NSW).  An exception also exists if information is provided on the patient’s request.

The legislation provides that a practitioner is not subject to civil and/or criminal liability if they act in good faith and with reasonable care.

There are also sheltering provisions against incurring professional liability or disciplinary penalty for practitioners who refrain from administering lifesaving treatment after the administration (including self-administration) of an assisted dying substance, in circumstances where the patient does not request lifesaving treatment.

Commentary

NSW is the latest Australian state to legalise assisted dying.

Recently, a bill was passed in the lower house of the Federal Parliament that would allow the territories to legislate on voluntary assisted dying. The Northern Territory was the first jurisdiction in the world to legalise voluntary assisted dying, until the Federal Government banned the practice in 1997.

The NSW Act is different to other states as it gives an eligible person a choice between self-administration of the medication, or having a health practitioner administer the substance for them. The default approach in other states is self-administration.

With the passage of the Voluntary Assisted Dying Act 2022 , from 28 November 2023 eligible persons in NSW will have the ability to control when they die, with the Act prescribing a rigorous process, including independent assessments by two senior doctors who have each completed mandatory training.

If you have a query relating to any of the information in this article, or would like to discuss a matter of your own, please don’t hesitate to get in touch with Holman Webb’s Health, Aged Care and Life Sciences Group today.