Practical implications of the Voluntary Assisted Dying Act on aged care providers

19 June 2019
Sabine Phillips, Partner, Melbourne

The Voluntary Assisted Dying Act 2017 (Vic) (‘the VAD Act’) becomes operational on 19 June 2019. The VAD Act creates a framework which enables Victorians who have a terminal illness and who meet strict eligibility criteria to legally request to end their life.

The Victorian legislation designated an 18 month implementation period to give health services time to prepare for voluntary assisted dying (‘VAD’), and to address some of the clinical, legal and administrative challenges presented by the VAD Act. However, questions remain about the practical implications of this new legal landscape in residential aged care.

 

Can approved providers inquire about VAD during the admission process?

The VAD Act clearly states that a registered health practitioner who provides health or professional care services to a person must not, during the provision of those services, initiate a discussion about VAD to that person, or suggest VAD to that person.

This means that Registered Nurses, Enrolled Nurses, Assistants in Nursing and Nurse Practitioners at a residential facility are precluded from initiating discussions about, or suggesting VAD with a person, unless the person specifically asks about VAD.

In practice, this means that the conversations that health practitioners currently have with residents about end-of-life care should not change now that the VAD Act is operational.

This presents problems for providers who have elected to only provide information and support, and who do not wish to play a role in accommodating or facilitating access to VAD at their services.

Providers need to consider how to obtain information regarding whether a person is on or accessing a VAD pathway, without compromising itself or its staff.

 

Can a person request VAD in an advanced care directive?

No. An advance care directive is designed to allow medical treatment decision makers to respect a person’s wishes about their medical care in circumstances where they are no longer able to express their own decisions. People requesting access to VAD must possess decision making capacity throughout the entire process.

Section 140 of the VAD Act clearly stipulates that the Act does not authorise an advance care directive or a decision by a medical treatment decision maker to be made in respect of VAD.

Similarly, a person’s family, carer, appointed Attorney or other support person cannot ask for access to VAD on their behalf as the person must ask for VAD themselves to ensure their decision is voluntary.

 

What are the storage requirements for VAD substances?

The VAD Act stipulates that a person who has been dispensed a VAD substance must store the substance in a locked box that satisfies the prescribed specifications.

The Voluntary Assisted Dying Regulations 2018 (‘the Regulations’) lists the prescribed specifications as being a locked box that is constructed of steel, is not easily penetrable, and is lockable with a lock of sturdy construction.

Given the VAD Act and Regulations do not contemplate the size of the locked box, whether the locked box has to be affixed to a solid surface, or whether the locked box is to be located within a certain room or area of a residential aged care facility, uncertainties arise.

For example, it is not yet clear whether VAD substances can be left in a resident’s room within a residential facility. If they can, questions arise about who is responsible for access to the locked box? If the responsibility lies with the resident, how can a provider ensure the resident only utilises the VAD substance in the manner prescribed?

Further, if a resident self-administers a VAD substance and does not inform facility staff, how can a provider ensure any unused VAD substance is disposed of correctly post-administration when other residents may enter the deceased resident’s room before facility staff are aware of the death?

As these issues are not yet addressed in the VAD Act or Regulations, providers are advised to err on the side of caution and implement a conservative approach within their policies and procedures.

 

Is a VAD death a reportable death?

No. The VAD Act makes a clear amendment to the Coroners Act 2008 (Vic), stipulating that the death of a person who has been administered, or who self-administers, a VAD substance in accordance with the VAD Act is not a reportable death.

However, it is important to note that the death of a resident who has a VAD permit must be notified to the Coroner, irrespective of whether the VAD substance was administered, as this enables effective auditing of the VAD scheme.

It is only where a VAD substance is not administered in the way in which it was intended to be administered that a death would be reportable. This may arise where a VAD substance is given to a person other than the holder of the VAD permit, or where a VAD substance is administered by someone other than the VAD permit holder or the practitioner administration permit holder.

Difficulties may also arise where some providers are not aware of VAD permit holders within their facility, or become aware that a resident was a VAD permit holder after the administration of the VAD substance has occurred.

 

How do providers ensure they (and their staff) comply with the VAD Act?

The VAD Act requires bodies corporate to exercise due diligence to prevent the commission of offence(s) under the Act by the body corporate, including its officers.

For the purposes of the VAD Act, the definition of an ‘officer’ of a body corporate has a broad ambit and can cover the directors of an approved provider, its key personnel, clinical care managers, facility managers and other related positions involved in the management of an aged care service.

In a practical sense, the provisions of the VAD Act make not only an approved provider, but also those involved in the decision making and management of that approved provider, vicariously liable for the wrongful and/or negligent actions of its staff in circumstances where those people did not exercise due diligence to prevent the commission of the offence by that approved provider.

The offences to which this provision applies includes:

Offence

Penalty

Where a body corporate is found to have induced a person to request VAD Natural person: level 6 imprisonment or 600 penalty units ($96,714)

Body corporate: 2400 penalty units ($386,856)

Where a body corporate has induced self-administration of a VAD substance Natural person: level 6 imprisonment or 600 penalty units ($96,714)

Body corporate: 2400 penalty units ($386,856)

Where a body corporate has falsified a form or record required to be made under the VAD Act Natural person: level 6 imprisonment or 600 penalty units ($96,714)

Body corporate: 2400 penalty units ($386,856)

Where a body corporate makes a false statement to a person who requests VAD Natural person: level 6 imprisonment or 600 penalty units ($96,714)

Body corporate: 2400 penalty units ($386,856)

Where a body corporate fails to give copies of forms to the Voluntary Assisted Dying Review Board. 60 penalty units ($9,671.40)

Consequently, it is vital that providers can demonstrate the facilities have implemented training and education sessions for all staff to ensure they are aware of what they are and are not permitted to do under the VAD Act, and what actions constitute offences and attract heavy penalties to both corporations and individuals, and possible imprisonment.

Similarly, it is essential that all approved providers ensure their policies and procedures reflect the requirements and processes under the VAD Act.

 

Other issues to be considered by providers

  • The consequences associated with a person implementing their VAD plan at a residential facility when their family is unaware they have elected to pursue a VAD pathway.
  • The provision of counselling and support services for employees.
  • The views of staff and possible effects of conscientious objection to participate in VAD.
  • The governance arrangements necessary to respond to VAD requests and accessing VAD pathways within your organisation.
  • Whether people within your organisation who request information about or access to VAD will be referred to other health services, and how the necessary referrals to or linkages with these services can be facilitated.
  • Your policies if a person accessing the VAD pathway requests a staff member to remain with them during the administration of the VAD substance.

We would be pleased to assist you in the development of policies and procedures that reflect your organisation’s philosophy whilst meeting your legal obligations.

Authored by

Sabine Phillips, Partner

Tamie Duncan-Bible, Associate

Abigail Gedge, Paralegal

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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