Important guidance for aged care providers on Voluntary Assisted Dying in New South Wales
Published on December 8, 2023 by Josephine Heesh
The Voluntary Assisted Dying Legislation (VAD) began to operate in New South Wales from 28 November 2023. Many hospitals, aged care facilities, and other health care providers may be wondering how that will affect their operations. This article provides important guidance to aged care providers on Voluntary Assisted Dying in New South Wales. The comments below are written with respect to matters that an aged care provider needs to consider.
As a minimum from a legal perspective, if a request is put by a resident for information on VAD, the provider must not hinder access to information or to a registered health practitioner or other qualified person to give information in person.
A provider, can elect not to provide the service and related steps, (listed below) but if it makes that decision the fact that the service and related steps are not offered at an aged care facility must be published in the way by which all residents become aware of information normally: i.e., website, newsletters, etc.
If a facility decides to offer the service, then it must only allow that to residents with a terminal illness who satisfy the likely remaining lifespan tests, where such persons have mental capacity, and are acting voluntarily. Then any practitioner involved must satisfy certain training requirements and must monitor the request process required of the resident.
The legislation anticipates the introduction of a person or organisation in the role of a “navigator”, where an aged care provider must, if asked, allow reasonable access to a member of a navigator to provide “support” “assistance” and “information” relating to voluntary assisted dying to the person requesting it.
The interpretation of “support” “assistance” and “information”, in our view, would not extend to the navigator being automatically entitled to move through to providing the services, an aged care provider can decide it will not provide itself, namely:
- Report and assessment process
- Administration of decision
- Prescribe substance
- Store substance
- Be present at time of administration of substance
We consider it is open to an aged care provider to restrict the steps a navigator may be asked to take to those of providing information.
And, we maintain, it is definitely open to an aged care provider to decide none of its staff need participate in any part of the process, after the providing of information.
The relevant distinction is drawn between the facility (through its own staff) providing information or VAD services itself, and a navigator or medical practitioner being invited privately by a resident to attend the facility. In the latter scenario, where resident invites a navigator (to provide information) or invites a medical practitioner (to assess the resident’s eligibility for VAD services and administer the procedure), the facility must allow reasonable access to the invitee.
However, access to a medical practitioner in this latter scenario only needs to be granted if the resident is a permanent resident of the facility. If the resident is not permanent, the facility is permitted to refuse access to the invitee and transfer the person to another facility.
It is clear the operator could refuse permission to any staff to participate in the process, and we consider that may be a position many staff may seek as we suspect many will be unwilling to be involved. There will also be visiting medical practitioners, and general practitioners, who will not be qualified to administer the service, or who choose not to do so. And, combined with these factors is the strict capacity and consent tests which residents will be required to pass, which in an aged care context may not be so easy to satisfy.
For persons in governance of such facilities, it is important that open discussions are conducted and clear policy is settled, which is consistently applied, so that all stakeholders, know the position of the facility. In that context all policy, and public statements, should indicate that a facility will provide all information on VAD that a resident asks to receive, or will arrange for a navigator organisation to do so, but that staff at a facility will not administer the VAD services directly to residents.
A difficult position may arise if a long term (but not strictly a permanent) resident makes a request for VAD where a facility does not provide the service: it would be unkind to require such a person to move elsewhere to receive VAD but if clear statements have been made by the operator, the resident will not be able to claim they did not know it could not be directly implemented at the facility.
Many operators should also ensure that whatever path they decide to follow does not conflict with the basis on which they were established, which in the aged care sector is synonymous with allowing aging people to live with dignity, and die with dignity (a process that hospitals, aged care facilities and other health care providers have been managing for many decades by sensitive palliative care, and without the assistance of VAD).
Please contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page if you have any questions regarding the Voluntary Assisted Dying Legislation (VAD) in NSW and one of our lawyers will be able to assist you.