Voluntary Assisted Dying Act 2021

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.

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.