Rights to conscientious objection
The Voluntary Assisted Dying Act 2021 (the Act) gives registered health practitioners who have a conscientious objection to voluntary assisted dying 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 medication
- to be present at the time of administration of a voluntary assisted dying medication
- to dispense a prescription for a voluntary assisted dying medication.
Protections from liability
Any person who, in good faith, assists or facilitates a person who is requesting access or is accessing voluntary assisted dying in line with the Act is protected from criminal liability.
A health practitioner who, in good faith and without negligence, participates in voluntary assisted dying in line with the Act is not:
- guilty of an offence
- in breach of professional ethics or standards
- considered to have committed professional misconduct
- liable in civil proceedings.
The Act provides protection from civil and criminal liability for certain persons who do not administer lifesaving treatment in circumstances where the patient does not request it and the person believed, on reasonable grounds, that the patient is dying after self-administering or being administered the voluntary assisted dying medication in accordance with the Act. This includes registered health practitioners and a person providing an ambulance service.
The Act contains the following offences:
- unauthorised administration of the voluntary assisted dying medication
- inducing another person to make a request for access to voluntary assisted dying
- inducing another person to self-administer the medication
- falsifying a form or record required to be made under the Act
- knowingly making a false or misleading statement in a report or form required under the Act
- the Contact Person failing to return unused or remaining medication after the death of a patient granted a Self-Administration Permit
- a person failing to give copies of forms to the Review Board.
These offences attract penalties. It is therefore important that anyone participating in the Voluntary Assisted Dying Pathway familiarise themselves with these offences.
A breach of the Act by a registered health practitioner may also be professional misconduct or unprofessional conduct for the purposes of the Health Practitioner Regulation National Law (South Australia) Act 2010. This is the case even if the breach is not an offence under the Act.
Reporting possible breaches of the Act
The Act mandates registered health practitioners or an employer of a registered health practitioner to notify the Australian Health Practitioner Regulation Agency (AHPRA) as soon as possible if they reasonably believe another registered health practitioner either:
- initiates a discussion with a patient they provide health services or professional care to that is in substance about voluntary assisted dying in a manner that is not in line with this Act
- suggests or attempts to suggest voluntary assisted dying to a patient in a manner that is not in line with this Act
- offers or attempts to provide access to voluntary assisted dying in a manner that is not in line with this Act.
Failure of a registered health practitioner to make a mandatory report to AHPRA constitutes unprofessional conduct in line with the Health Practitioner Regulation National Law (South Australia) Act 2010.
A person may make a voluntary notification to AHPRA about any registered health practitioner they reasonably believe to be in breach of the Act.
Under the Act, the South Australian Civil and Administrative Tribunal (SACAT) has power to review decisions made by the Coordinating or Consulting Medical Practitioner that impact a patient’s eligibility to access voluntary assisted dying. Each of the following are SACAT reviewable decisions:
- that the patient is not ordinarily resident in South Australia
- that the patient was or was not ordinarily resident in South Australia for at least 12 months at the time of making a first request
- that the patient has or does not have decision making capacity in relation to voluntary assisted dying.
The person to whom the decision relates, a family member of the person to whom the decision relates; or any other person who the Tribunal is satisfied has a sufficient interest in the matter can apply to SACAT for review of the decision within 28 calendar days after the date the decision was made. SACAT may extend this timeframe if special circumstances exist provided that the patient will not be unreasonably disadvantaged because of the extension.
An application for SACAT review of a decision will result in each of the following processes being suspended until the review is complete:
- the request and assessment process
- any application for an administration permit
- the prescription and supply of the medication to the patient.
SACAT must give notice of the application to all the below:
- the Coordinating Medical Practitioner
- the Chief Executive, SA Health
- the South Australian Voluntary Assisted Dying Review Board.
A Coordinating Medical Practitioner may refuse to continue to perform their role if:
- an application was made to SACAT for review of a decision of the Coordinating Medical Practitioner that the person did not have decision making capacity in relation to voluntary assisted dying; and
- SACAT determines the patient had decision making capacity
In this situation the Coordinating Medical Practitioner must transfer their role.
A Consulting Medical Practitioner may refuse to continue to perform their roles if:
- an application was made to SACAT for review of a decision of the Consulting Medical Practitioner that the person did not have decision making capacity in relation to voluntary assisted dying; and
- SACAT determines the patient had decision making capacity
In this situation the Coordinating Medical Practitioner may refer the patient to another registered medical practitioner for a further consulting assessment.
A review is taken to be withdrawn if the patient who is the subject of the decision dies.