Finally the Voluntary Assisted Dying Act (VAD) has come into force in Queensland after much debate and news coverage. But when does it start and what does it allow?
The commencement date for the legislation is important because it excuses medical practitioners from liability or criminal offence if they follow the procedures set out in the Act and regulations. The Act does not commence until January 2023 so there is a lot of time to see how this will work.
The principles that underpin this Act:
- Human life is of fundamental importance;
- Every person has inherent dignity and should be treated equally and with compassion and respect;
- A person’s autonomy, including autonomy in relation to end of life choices, should be respected;
- Every person approaching the end of life should be provided with high quality care and treatment, including palliative care, to minimise the person’s suffering and maximise the person’s quality of life;
- Access to voluntary assisted dying and other end of life choices should be available regardless of where a person lives in Queensland;
- A person should be supported in making informed decisions about end of life choices;
- A person who is vulnerable should be protected from coercion and exploitation; and
- A person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected.
It is important to note that the Powers of Attorney Act is not an Act that applies to the VAD Act, which means an attorney cannot give consent to assisted dying under this legislation as per section 159. This is also not a matter that is able to be decided under the Guardianship and Administration Act, if a person has a guardian appointed or the Public Trustee is acting where the person has lost capacity.
The way it will work is that a person who is affected by disease or illness can make a first request to a medical practitioner for voluntary assisted death, strictly under the terms of the Act. The major purpose is to ensure consent is properly obtained and that prohibited drugs are controlled as per the Medicines and Poisons Act 2019.
A death under this Act is not a “reportable death” under the Coroners Act 2003, meaning it is not to be investigated or requiring an autopsy. Grim stuff but someone has to make these decisions!
Section 155 states that “technical errors” or minor compliance issues will not affect the ability of a medical practitioner to assist with the process of dying of a person.
The “effectiveness” of the Act will be reviewed after 3 years by the relevant minister.
Probably one of the most important sections is:
149 Protection for health practitioners and ambulance officers:
- This section applies if a protected person, in good faith, does not administer life sustaining treatment to another person in circumstances where:
- the other person has not requested the administration of life sustaining treatment; and
- the protected person believes on reasonable grounds that the other person is dying after self-administering or being administered a voluntary assisted dying substance in accordance with this Act.
- No civil or criminal liability attaches to the protected person for not administering the life sustaining treatment.
So, good protection for front line health workers.
147 Protection for persons assisting access to voluntary assisted dying or present when substance administered.
Criminal liability does not attach to a person only because:
- The person, in good faith, does an act or makes an omission that assists another person who the person believes on reasonable grounds is requesting access to or accessing voluntary assisted dying in accordance with this Act; or
- The person is present when another person self-administers or is administered a voluntary assisted dying substance under this Act.
There are however various offences for giving prescribed medicines without obtaining proper authority, inducing consent, giving false or misleading information. This has a potential penalty of up to 7 years imprisonment.
The act provides for a review of decisions to QCAT regarding a person seeking access to voluntary assisted dying. This is to determine eligibility to apply including whether the person had the required capacity to seek consent or there was coercion or other intervening issue. The person must be an Australian resident for at least 3 years prior to the application and a Queensland resident for at least 12 months.
The procedure requires a First Request and First assessment by a qualified medical practitioner and then a follow up second request and final assessment before the process of voluntary assisted dying can occur.
Medical practitioners and qualified nurses can administer the prescribed medicines to assist the voluntary assisted dying process.
The key is a determination of capacity to make the final decision:
11 Decision-making capacity
A person has decision-making capacity in relation to voluntary assisted dying if the person is capable of:
- Understanding the nature and effect of decisions about access to voluntary assisted dying;
- Freely and voluntarily making decisions about access to voluntary assisted dying; and
- Communicating decisions about access to voluntary assisted dying in some way.
The person is to be “suffering” meaning suffering, caused by a disease, illness or medical condition, includes a physical or mental suffering; and suffering caused by treatment provided for the disease, illness or medical condition.
A person is eligible for access to voluntary assisted dying if:
- The person has been diagnosed with a disease, illness or medical condition that is advanced, progressive and will cause death; and is expected to cause death within 12 months; and is causing suffering that the person considers to be intolerable;
- The person has decision-making capacity in relation to voluntary assisted dying;
- The person is acting voluntarily and without coercion; and
- The person is at least 18 years of age.
Under section 8, voluntary assisted dying is not taken to be suicide and this will have an impact on many life insurance policies.
Please call us today on 07 3839 7555 if you would like to know more about this Act.