Voluntary Assisted Dying – who’s eligible? And how can it be accessed?

The Voluntary Assisted Dying Act 2021 (SA) (Act) commenced on 31 January 2023.

The Act now enables eligible people to voluntarily access and self-administer, or in certain circumstances have a registered medical practitioner administer, a medication which will cause their death in accordance with the processes set out in the Act.

To be eligible, a person must:

• be aged 18 years or more; and
• be an Australian citizen or permanent resident; and
• be ordinarily resident in South Australia; and
• at the time of making a first request, have been ordinarily resident in South Australia for at least 12 months; and
• have decision making capacity in relation to voluntary assisted dying; and
• be diagnosed with a disease, illness or medical condition that is incurable, and is advanced, progressive and will cause death, and is expected to cause death within weeks or months, not exceeding 6 months (12 months in the case of a neurodegenerative disease) and is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable, and the person must be acting freely and without coercion.

A person is not eligible only because the person is diagnosed with a mental illness within the meaning of the Mental Health Act 2009 or only because the person has a disability within the meaning of the Disability Inclusion Act 2018.

A person has decision making capacity if that person can understand relevant information about voluntary assisted dying, retain the information, weigh it in making a decision, and communicate a decision and views and needs as to that decision by speech, gestures or other means.  Further detail in relation to decision making capacity is given in the Act.

To access voluntary assisted dying:

1. a person must make a “first request” for access to voluntary assisted dying to a registered medical practitioner.  The first request must be made by the person personally, and be clear and unambiguous.  The medical practitioner must meet certain eligibility criteria in the Act to be in a position to accept the first request, and indeed cannot do so if he or she is a family member, or has reasonable grounds to believe that he or she may be a beneficiary under the will of the person, or may benefit financially following the death of that person.  The medical practitioner must accept or refuse within 7 days, and if accepted, the first request and decision to accept must be recorded in the medical records of the person, and the medical practitioner will become the coordinating medical practitioner for that person.
2. the coordinating medical practitioner must then assess the person as eligible for access to voluntary assisted dying, in accordance with the eligibility criteria above.  The coordinating medical practitioner must have completed approved training before commencing the first assessment.  If the person passes the eligibility criteria, the coordinating medical practitioner must inform the person of their prognosis and diagnosis, treatment and palliative care options and likely outcomes, potential risks and expected outcome of taking a substance prescribed under the Act for the purpose of causing death, and must, if the person consents, inform a family member of the person of the relevant clinical guidelines and the plan for self-administration of the substance. The coordinating medical practitioner must notify the person, record the decision by lodging the first assessment report form with the Voluntary Assisted Dying Review Board, and then refer the person to second registered medical practitioner for a consulting assessment.  If the consulting medical practitioner also assesses that the person meets the eligibility criteria, then the person must be notified and the consulting assessment report form must be completed and lodged with the Voluntary Assisted Dying Review Board;
3. the person may then make a written declaration, as second request to access voluntary assisted dying, in writing, in accordance with the provisions of the Act witnessed by two eligible witnesses and the coordinating medical practitioner. If the person cannot write, the person can communicate that another person should sign it on his behalf, and an interpreter can be used;
4. the person must then personally communicate a third, final, and clear request to access voluntary assisted dying, to the coordinating medical practitioner;
5. the person must then nominate an eligible contact person, to return any unused medication;
6. the coordinating medical practitioner must then conduct a final review and complete and submit a final review form to the Voluntary Assisted Dying Review Board, and if the coordinating medical practitioner certifies that the review and assessment process have been completed in accordance with the Act, then a voluntary assisted dying permit may be applied for for the person;
7. the voluntary assisted dying permit allows the coordinating medical practitioner to prescribe and supply the voluntary assisted dying substance, for self-administration, or administration by the coordinating medical practitioner in the presence of a witness if the person is incapable of self-administration, and if certain criteria are met.

For the purposes of the laws of South Australia, the death of a person by the administration of a voluntary assisted dying substance in accordance with the Act will be taken not to constitute the death by suicide of the person, and for the purposes of the laws of South Australia, and any professional standard or code of conduct, those who perform an act or omission in relation to the voluntary assisted dying of a person in accordance with the Act will be taken not, by that act or omission alone, to have aided, abetted, counselled or procured the suicide of the other person.  Further, a person who in good faith does something or fails to do something that assists or facilitates a person who the person believes on reasonable grounds is requesting access to or is accessing voluntary assisted dying in accordance with the Act which would otherwise constitute an offence under any other Act or law, does not commit that offence.

Special provisions are set out in the Act for those wishing to access voluntary assisted dying who are resident in nursing homes, residential aged care facilities, and retirement villages.

A Voluntary Assisted Dying Review Board has been established to perform a number of functions, for example to monitor matters related to voluntary assisted dying and to review the functions and powers exercised under the Act.

The Act specifically amends the Advance Care Directives Act 2013, to clarify that Advance Care Directives cannot be used in relation to voluntary assisted dying medication or any other medical treatment or other service relating to voluntary assisted dying under the Act. Specifically, an Advance Care Directive cannot constitute a request for voluntary assisted dying (however described), however nothing prevents a person from expressing their preferences or wishes in relation to voluntary assisted dying in an Advance Care Directive. An Advance Care Directive does not authorise a substitute decision-maker to make a decision, or to otherwise act in a manner, that is inconsistent with a request for voluntary assisted dying made by the person who gave the Advance Care Directive.

This Alert is intended as general information only. It does not purport to be comprehensive advice or legal advice. Readers must seek professional advice before acting in relation to these matters.

For assistance with this or for further information, please contact Nikki Owen +61 8 8235 7449 or nikki.owen@finlaysons.com.au