Voluntary Assisted Dying Act 2021

This

Act may be cited as the Voluntary

Assisted Dying Act 2021.

This

Act comes into operation on a day to be fixed by proclamation.

In this Act, unless the contrary intention appears—

administration request means a request made under section 81 for the administration of a voluntary assisted dying substance;

approved assessment training means training approved by the Minister under section 13;

Australian

Health Practitioner Regulation Agency means the Australian Health Practitioner Regulation Agency established under the Health

Practitioner Regulation National Law;

Chief

Executive means the Chief Executive of the administrative unit of the Public

Service that is responsible for assisting a Minister in the administration of the Health

Care Act 2008;

consulting assessment means an assessment of a person conducted in accordance with Part 4

Division 4 by a consulting medical practitioner for the person;

consulting assessment report form means the consulting assessment report form prescribed by the regulations, completed under section 48;

consulting medical practitioner for a person means a registered medical practitioner who accepts a referral to conduct a consulting assessment of the person;

contact person means a person appointed under section 57;

contact person appointment form means the contact person appointment form prescribed by the regulations, completed under section 58;

controlled substance has the same meaning as in the Controlled

Substances Act 1984;

coordinating medical practitioner for a person means a person who is—

a registered medical practitioner who accepts the person's first request; or

a consulting medical practitioner for the person who accepts a transfer of the role of coordinating medical practitioner under section 51;

coordinating medical practitioner administration form means the coordinating medical practitioner administration form prescribed by the regulations, completed by a witness under section 82 and a coordinating medical practitioner under section 83;

decision-making capacity—see section 4;

de‑identified, in relation to personal information or health information, means personal information or health information that no longer relates to an identifiable individual or an individual who can be reasonably identified;

dispensing pharmacy means the pharmacy, pharmacy business or pharmacy department from which a pharmacist sold or supplied a voluntary assisted dying substance;

domestic partner has the same meaning as in the Family

Relationships Act 1975 (whether or not a declaration of the relationship has been made under that Act) but does not, in the case of persons in a close personal relationship within the meaning of Part 3 of that Act, include a person who provides domestic support and personal care to the person—

for fee or reward; or

on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);

drug of dependence has the same meaning as in the Controlled

Substances Act 1984;

eligibility criteria means the criteria set out in section 26;

family member of a person means the person's spouse or domestic partner, parent, sibling, child or grandchild;

final request means a request for access to voluntary assisted dying made under section 55 by a person to the coordinating medical practitioner for the person;

final review means a review conducted under section 59 by the coordinating medical practitioner for the person;

final review form means the final review form prescribed by the regulations, completed under section 59;

first assessment means an assessment of a person conducted in accordance with Part 4

Division 3 by the coordinating medical practitioner for the person;

first assessment report form means the first assessment report form prescribed by the regulations, completed under section 39;

first request means a request for access to voluntary assisted dying made under section 29 by a person to a registered medical practitioner;

prescribed health facility means—

an incorporated or private hospital within the meaning of the Health

Care Act 2008;

or

a residential care service or aged care service; or

a supported residential facility under the Supported

Residential Facilities Act 1992;

or

a treatment centre within the meaning of the Mental

Health Act 2009;

or

any other facility of a kind prescribed by the regulations;

health information means—

personal information relating to—

the physical, mental or psychological health (at any time) of a person;

or

a disability (at any time) of a person; or

a person's expressed wishes about the future provision of health services to the person; or

a health service provided, or to be provided, to a person; or

personal information collected to provide, or in providing, a health service;

or

personal information about a person collected in connection with the donation, or intended donation, by the person of body parts, organs or body substances; or

personal information that is genetic information about a person in a form which is or could be predictive of the health (at any time) of the person or of any of their descendants, but does not include health information, or a class of health information or health information contained in a class of documents, of a kind prescribed by the regulations;

health service has the same meaning as in the Health

Practitioner Regulation National Law;

identifying information means health information or personal information about a person whose identity is apparent, or can reasonably be ascertained, from that information;

ineligible witness—see section 53(2);

interpreter—see section 7;

labeling statement means a statement attached to a container as required by section 76(1);

mental illness has the same meaning as in the Mental

Health Act 2009;

palliative care has the same meaning as in the Consent to Medical Treatment and Palliative Care Act 1995;

personal information means information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion;

pharmacist means a person registered under the Health

Practitioner Regulation National Law to practise in the pharmacy profession (other than as a student);

pharmacy has the same meaning as in the Health

Practitioner Regulation National Law (South Australia) Act 2010;

pharmacy business has the same meaning as in the Health

Practitioner Regulation National Law (South Australia) Act 2010;

pharmacy department means the part of the premises of a health service set aside for supplying, compounding or dispensing medicines on order or prescription to patients and staff of the health service;

poison has the same meaning as in the Controlled

Substances Act 1984;

practitioner administration permit means a permit issued under section 67(2)(a)(ii);

professional care services means any of the following provided to another person under a contract of employment or a contract for services:

support or assistance;

special or personal care;

disability services;

services provided by a registered NDIS provider within the meaning of the

National

Disability Insurance Scheme Act 2013 of the Commonwealth;

psychiatrist means a person who is registered under the Health

Practitioner Regulation National Law as a medical practitioner in the speciality of psychiatry (other than as a student);

registered health practitioner means a person registered under the Health

Practitioner Regulation National Law to practise a health profession (other than as a student);

Registrar means the Registrar of Births, Deaths and Marriages under the

Births,

Deaths and Marriages Registration Act 1996;

request and assessment process means, in respect of a person, the making or the conducting of the following under Part 4:

a first request;

a first assessment;

a consulting assessment;

a written declaration;

a final request;

a contact person appointment;

a final review;

self administration permit means a permit issued under section 67(2)(a)(i);

special or personal care means—

assistance with 1 or more of the following:

bathing, showering or personal hygiene;

toileting;

dressing or undressing;

meals;

or

assistance for persons with mobility problems; or

assistance for persons who are mobile but require some form of supervision or assistance; or

assistance or supervision in administering medicine; or

the provision of substantial emotional support;

supply has the same meaning as in the Controlled

Substances Act 1984;

Tribunal means the South Australian Civil and Administrative Tribunal established under the South

Australian Civil and Administrative Tribunal Act 2013;

Uniform

Poisons Standard means the current Poisons Standard as defined in the Therapeutic

Goods Act 1989 of the Commonwealth (as in force from time to time);

vocationally registered general practitioner has the same meaning as in the Health

Insurance Act 1973 of the Commonwealth;

voluntary assisted dying means the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration;

voluntary assisted dying permit means—

a self administration permit; or

a practitioner administration permit;

Voluntary

Assisted Dying Review Board or Board means the Voluntary Assisted Dying Review Board established under section 107;

voluntary assisted dying substance means a poison or controlled substance or a drug of dependence specified in a voluntary assisted dying permit for the purpose of causing a person's death;

voluntary assisted dying substance dispensing form means the voluntary assisted dying substance dispensing form prescribed by the regulations, completed by a pharmacist under section 77;

voluntary assisted dying substance disposal form means the voluntary assisted dying substance disposal form prescribed by the regulations, completed by a pharmacist under section 80;

written declaration means a declaration made under section 52 in the form prescribed by the regulations.

A person has decision making capacity in relation to voluntary assisted dying if the person is able to—

understand the information relevant to the decision relating to access to voluntary assisted dying and the effect of the decision; and

retain that information to the extent necessary to make the decision; and

use or weigh that information as part of the process of making the decision; and

communicate the decision and the person's views and needs as to the decision in some way, including by speech, gestures or other means.

For the purposes of subsection (1), a person is presumed to have decision making capacity unless there is evidence to the contrary.

For the purposes of subsection (1)(a), a person is taken to understand information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

In determining whether or not a person has decision making capacity, regard must be had to the following:

a person may have decision making capacity to make some decisions and not others;

if a person does not have decision making capacity to make a particular decision, it may be temporary and not permanent;

it should not be assumed that a person does not have decision making capacity to make a decision—

on the basis of the person's appearance; or

because the person makes a decision that is, in the opinion of others, unwise;

a person has decision making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support.

Example—

Practicable and appropriate support includes things such as—

using information or formats tailored to the particular needs of a person;

communicating or assisting a person to communicate the person's decision;

giving a person additional time and discussing the matter with the person;

using technology that alleviates the effects of a person's disability.

A person who is assessing whether a person has decision making capacity for the purposes of this Act must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision making capacity can be most accurately assessed.

For the purposes of the law of the State, the administration of a voluntary assisted dying substance to a person in accordance with, or purportedly in accordance with, this Act will be taken not to constitute palliative care of the person.

To avoid doubt, nothing in subsection (1) prevents a person who is providing, or who has provided, palliative care to a person, or an institution at which palliative care is provided to a person, from performing functions or otherwise being involved in the operation of this Act (whether as a coordinating medical practitioner, a consulting medical practitioner or otherwise).

Nothing in this Act limits Part 3 Division 2 of the Consent to Medical Treatment and Palliative Care Act 1995 (and, for the purposes of section 17(1) of that Division, a reference to administering medical treatment in that subsection will be taken not to include a reference to administering a voluntary assisted dying substance to a person in accordance with, or purportedly in accordance with, this Act).

Note—

Section

17 of the Consent to Medical Treatment and Palliative Care Act 1995 provides that a medical practitioner does not incur liability where certain medical treatment incidentally, rather than intentionally, hastens the death of a patient.

For the purposes of the laws of the State, the death of a person by the administration of a voluntary assisted dying substance in accordance with this Act will be taken not to constitute the death by suicide of the person.

Without limiting subsection (1), for the purposes of the laws of the State, and any professional standard or code of conduct (however described), a person who performs an act or omission in relation to the voluntary assisted dying of a person in accordance with this Act will be taken not, by that act or omission alone, to have aided, abetted, counselled or procured the suicide of the other person.

For the purposes of this Act, an interpreter who assists a person in relation to requesting access to or accessing voluntary assisted dying—

must be accredited by a prescribed body; and

must not—

be a family member of the person; or

believe or have knowledge of—

being a beneficiary under a will of the person; or

otherwise benefitting financially or in any other material way from the death of the person; or

be an owner of, or be responsible for the day-to-day management and operation of, any prescribed health facility at which the person is being treated or resides; or

be a person who is directly involved in providing health services or professional care services to the person.

A person exercising a power or performing a function or duty under this Act must have regard to the following principles:

every human life has equal value;

a person's autonomy should be respected;

a person has the right to be supported in making informed decisions about the person's medical treatment, and should be given, in a manner the person understands, information about medical treatment options including comfort and palliative care;

every person approaching the end of life should be provided with quality care to minimise the person's suffering and maximise the person's quality of life;

a therapeutic relationship between a person and the person's health practitioner should, wherever possible, be supported and maintained;

individuals should be encouraged to openly discuss death and dying and an individual's preferences and values should be encouraged and promoted;

individuals should be supported in conversations with the individual's health practitioners, family and carers and community about treatment and care preferences;

individuals are entitled to genuine choices regarding their treatment and care;

there is a need to protect individuals who may be subject to abuse;

all persons, including health practitioners, have the right to be shown respect for their culture, beliefs, values and personal characteristics;

every person has the right to make decisions about medical treatment options freely and not as a consequence of the suggestion, pressure, coercion or undue influence of others.

For the purposes of subsection (1), a reference to a person exercising a power or performing a function or duty under this Act will be taken to include the Tribunal.

A person may access voluntary assisted dying if—

the person has made a first request; and

the person has been assessed as eligible for access to voluntary assisted dying by—

the coordinating medical practitioner for the person; and

a consulting medical practitioner for the person; and

the person has made a written declaration; and

the person has made a final request to the coordinating medical practitioner; and

the person has appointed a contact person; and

the coordinating medical practitioner has certified in a final review form that the request and assessment process has been completed as required by this Act; and

the person is the subject of a voluntary assisted dying permit.

A registered health practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to do any of the following:

to provide information about voluntary assisted dying;

to participate in the request and assessment process;

to apply for a voluntary assisted dying permit;

to supply, prescribe or administer a voluntary assisted dying substance;

to be present at the time of administration of a voluntary assisted dying substance;

to dispense a prescription for a voluntary assisted dying substance.

A relevant service provider has the right to refuse to authorise or permit the carrying out, at a health service establishment operated by the relevant service provider, of any part of the voluntary assisted dying process in relation to any patient at the establishment (including any request or assessment process under this Act).

A relevant service provider may include in the terms and conditions of acceptance of any patient into the health service establishment an acknowledgment by the patient that the patient—

understands and accepts that the relevant service provider will not permit the establishment to be used for the purposes of, or incidental to, voluntary assisted dying; and

agrees, as a condition of entry, that they will not seek or demand access to voluntary assisted dying at the establishment.

Subsection (4) applies in relation to a patient at a health service establishment if the patient advises a person employed or engaged by the relevant service provider at that health service establishment that they wish to access voluntary assisted dying.

If this subsection applies in relation to a patient at a health service establishment, the relevant service provider who operates the establishment must ensure that—

the patient is advised of the relevant service provider's refusal to authorise or permit the carrying out at the health service establishment of any part of the voluntary assisted dying process;

and

arrangements are in place whereby the patient may be transferred to another health service establishment or prescribed health facility at which, in the opinion of the relevant service provider, a registered health practitioner who does not have a conscientious objection to voluntary assisted dying is likely to be able to participate in a voluntary assisted dying process in relation to the patient; and

reasonable steps are taken to facilitate the transfer referred to in paragraph (b) if requested by the patient.

To avoid doubt, this section does not apply to, or in relation to, a patient accepted into a health service establishment before the commencement of this section.

In this section—

health service establishment means—

a private hospital within the meaning of the Health

Care Act 2008 or other private health facility of a kind prescribed by the regulations; or

the whole or part of any other private institution, facility, building or place that is operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services (including, to avoid doubt, places of short‑term respite care); or

any other health service establishment of a kind prescribed by the regulations, but does not include prescribed residential premises, or any establishment declared by the regulations not to be included in the ambit of this definition;

prescribed residential premises means—

a facility (within the meaning of Part 2);

any other residential premises of a kind prescribed by the regulations;

relevant service provider means a person or body that operates a health service establishment.

A registered health practitioner who provides health services or professional care services to a person must not, in the course of providing those services to the person—

initiate discussion with that person that is in substance about voluntary assisted dying; or

in substance, suggest voluntary assisted dying to that person.

Nothing in subsection (1) prevents a registered health practitioner providing information about voluntary assisted dying to a person at that person's request.

A contravention of subsection (1) is to be regarded as unprofessional conduct within the meaning and for the purposes of the Health

Practitioner Regulation National Law.