Patchwork of VAD laws means variable access

End of life

By Geir O'Rourke

21 Mar 2024

Voluntary assisted dying is now legal for the vast majority of Australians, but variations in the law and restrictions on telehealth are continuing to hamper access, experts say.

With laws coming into effect in NSW on 28 November last year, every Australian state now has a VAD scheme in operation, while bills are now in various stages of development in the ACT and NT.

However, each state has key differences in their legal regime that impact patients, clinicians and institutions such as hospitals, the Annual Medico Legal Congress heard this week.

Variables cut across all aspects of the law from how many consultations are required before a prescription can be issued for a voluntary assisted dying medication, to which health practitioners can be involved, to conscience objection provisions and who can administer the lethal medication.

Distinctions even exist over the question of who can raise VAD as an option, said legal academic Katherine Waller of Queensland University of Technology’s Australian Centre for Health Law Research.

She noted that all states allowed health practitioners to provide information at the patient’s request, but in Victoria and South Australia practitioners were completely prohibited from raising VAD

On the other hand, VAD could be raised by a registered health practitioner or healthcare worker in NSW, provided they informed the person of available treatment and palliative care options and their likely outcomes, Ms Waller said. Non-doctors were also required to advise the patient to discuss their options with a doctor in the state.

Further highlighting the diversity of laws, WA, Queensland and Tasmania also allowed doctors and nurse practitioners to bring up the topic of VAD with a patient, but each had their own unique set of requirements, Ms Waller noted.

Interestingly, while Victoria had been the first to pass laws legalising VAD in 2017, its regime was the most conservative on the whole, while NSW, the last state to do so, had become the most liberal in many aspects, she added.

Telehealth ban impacts rural VAD

The conference also heard from Dr Wade Stedman, an ICU specialist and VAD implementation clinical lead at NSW Health.

He said that while the state’s model was a good one overall, implementation had been impacted by the federal law prohibiting the use of a ‘carriage service’ to discuss suicide – which effectively outlawed VAD discussions over telehealth.

Reaffirmed in a Federal Court ruling late last year, the ban was already causing access issues around the state, said Dr Stedman, who said he had recently been forced to travel all the way from Sydney to Broken Hill to see a single patient face-to-face.

“I left home at 5.30am and got home at 10.30pm. So I spent 17 hours to have a single 90 minute consult,” he said.

“It’s not a good use of public money and it’s not efficient.”

With other patients already requiring consultations in Deniliquin in the state’s south and Lightning Ridge and Ballina near the Queensland border, the travel demands were creating a real risk of burnout for doctors involved, he said.

“That is going to be a real problem until the criminal code is repealed,” he added.

While the law had clear requirements for doctors and institutions with conscientious objections that were designed to ensure patient access was not compromised, this had also proved a challenge, according to Dr Stedman.

But there were already signs that some practitioners had overcome their objections as they learned more about the process, he noted.

“Once you go through it with them and they realise there are safeguards, they will say ‘OK, it’s not so bad’,” he said.

He said those involved were also conscious of avoiding turning VAD into the ‘Rolls Royce’ option, versus palliative care, given the funding and access issues with the latter.

“It would be great if that Rolls Royce was everywhere. That would be the ideal, but it just isn’t the reality,” he said.

“So we don’t want to create a situation where it becomes a better option than palliative care.”

He concluded: “The other thing we need to step forward is to consider the fact that VAD has been going for nearly five years in Victoria. We need to take the next step and examine what is best practice for voluntary assisted dying, not just ticking boxes in the legislation, but actually ask what is the best medical practice for a patient.”

“We still need to work that out.”

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