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A closer look at the VAD Act: Advance care planning

The Voluntary Assisted Dying Act 2021 (the Act) was passed by the Queensland Parliament in a historic vote on 16 September 2021 and received royal assent on 23 September 2021.

This made Queensland the fifth Australian jurisdiction to legalise voluntary assisted dying (VAD), joining Victoria, Western Australia, South Australia and Tasmania. The VAD scheme will become operational on 1 January 2023.

This series of articles provides legal practitioners with a breakdown of what to expect once the VAD Act comes into operation in Queensland. This article explores the VAD framework in the context of advance care planning documents.

Eligibility requirements for voluntary assisted dying

A person wanting to access the VAD scheme must meet a number of eligibility requirements. Initially, a person must make a formal request to access the VAD scheme.1

If the request is accepted by an eligible medical practitioner, an assessment of the person is undertaken to determine their eligibility to access the scheme. A person is only eligible for access to VAD if they meet the following five conditions:

  • be diagnosed with a disease, illness or medical condition that –
    • is advanced, progressive and will cause death, and
    • is expected to cause death within 12 months, and
    • is causing suffering that the person considers to be intolerable, and
  • have decision-making capacity in relation to voluntary assisted dying, and
  • be acting voluntarily and without coercion, and
  • be at least 18 years of age, and
  • fulfil a residency requirement.2

Once a person is established as meeting the eligibility requirements, the person is independently assessed by two eligible medical practitioners.

A key safeguard in the VAD process is the requirement for the person to have decision-making capacity at each stage of the process. A person will have decision-making capacity in relation to VAD if the person is capable of –

  • understanding the nature and effect of decisions about access to VAD
  • freely and voluntarily making decisions about access to VAD, and
  • communicating decisions about access to VAD in some way.3

The operation of advance care planning documents

A person may make an advance health direction (AHD) to record their directions for future medical treatment or health care in the event they lose decision-making capacity. AHDs are legally binding documents, and direct both family members and health professionals as to the person’s health care when they are no longer able to communicate their wishes.

Without an AHD, decisions about a person’s health care are made by an attorney appointed under an enduring power of attorney (EPOA). Absent an EPOA, decisions are made by the person’s next of kin (referred to as a ‘statutory health attorney’).4

AHDs in Queensland have legal effect under the Powers of Attorney Act 1998 (Qld) (PAA). Importantly, an AHD ‘operates only while the principal has impaired capacity for the matter covered in the direction’.5

While a person may use an AHD to give directions about the refusal of life-sustaining treatment, there are specific criteria that must be met in order for that direction to apply, including that the person:

  • has a terminal illness or condition that is incurable or irreversible, and in the opinion of the treating doctor and another doctor, the person may reasonably be expected to die within one year, or
  • is in a persistent vegetative state and has a condition involving severe brain damage, or
  • is permanently unconscious (that is, in a coma) involving brain damage so severe that there is no reasonable prospect of regaining consciousness, or
  • has an illness or injury of such severity that there is no reasonable prospect that the person will recover to the extent that their life can be sustained without the continued application of life-sustaining measures.6

The person must also have no reasonable prospect of regaining capacity for health matters.7

A person can also make an EPOA, appointing an attorney to make decisions about their health, personal or financial matters in the event they lose decision-making capacity. The attorney is legally bound to exercise the powers granted to them under the EPOA subject to the terms of the EPOA.8

Both attorneys appointed under an EPOA and statutory health attorneys must act according to law9 and any fiduciary duties.

Inconsistency between an AHD and a request to access VAD

As a person can use an AHD to provide directions to administer or remove life-sustaining measures, a question arises in relation to what happens where the directions contained in an AHD are inconsistent with a person’s request to access VAD.

Importantly, an AHD will only operate where a person loses decision-making capacity for health matters and is deemed unlikely to regain that capacity. Thus, a person who retains decision-making capacity is not precluded from accessing the VAD scheme. This is because the person is only eligible to access VAD if they have decision-making capacity. If the person has decision-making capacity, their AHD will not be operative.

Can a person use an EPOA or an AHD to access VAD?

The Act requires the person wishing to access the VAD scheme to demonstrate capacity repeatedly throughout the process. This requirement will likely result in the exclusion of some persons, for example those with degenerative medical conditions that gradually causes diminution of capacity.

These persons may meet all other eligibility criteria, but as a result of the degenerative medical condition, they may be unable to demonstrate decision-making capacity by the end of the process.

A person may wish to make an EPOA or AHD directing their attorney to provide access to the VAD scheme if the person loses decision-making capacity. However, it is clear that such a direction will have no effect, because of the requirement demonstrate decision-making capacity at all stages of the VAD process.

Legal practitioners advising clients on advance care planning will need to be aware of the operation of advance care planning documents in the context of VAD, and explain the eligibility criteria where they are, for example, advising a client with a neurodegenerative condition which may mean the person will not have decision-making capacity at the time they might otherwise seek access the VAD scheme.

For more information about the operation of the Act, see these earlier articles:
A closer look at the VAD Act:
Superannuation and insurance
Medical practitioner liability
The common law forfeiture rule

Brooke Thompson is a Queensland Law Society Policy Solicitor.

Footnotes
1 Voluntary Assisted Dying Act 2021 (Qld) ss9(a), 14.
2 Ibid s10.
3 Ibid s11.
4 Powers of Attorney Act 1978 (Qld) s63.
5 Ibid s36(1).
6 Ibid s37(2).
7 Ibid s37(2)(c).
8 Ibid s67.
9 In that they must abide by the Powers of Attorney Act 1978 (Qld) and the Guardianship and Administration Act 2000 (Qld).

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