New South Wales: Voluntary Assisted Dying Act 2022 (NSW)

Voluntary Assisted Dying Act 2022 No 17 An Act to provide for, and regulate access to, voluntary assisted dying for persons with a terminal illness; to establish the Voluntary Assisted Dying Board; and to make consequential amendments to other Acts. Part 1 Preliminary Division 1 Preliminary 1 Name of Act This Act is the Voluntary Assisted Dying Act 2022. 2 Commencement This Act commences on the day that is 18 months after the date of assent to this Act. 3 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. Division 2 Principles 4 Principles (1) A person exercising a power or performing a function under this Act must have regard to the following principles— (a) every human life has equal value, (b) a person's autonomy, including autonomy in relation to end of life choices, should be respected, (c) a person has the right to be supported in making informed decisions about the person's medical treatment and should be given, in a way the person understands, information about medical treatment options, including comfort and palliative care and treatment, (d) a person approaching the end of life should be provided with high quality care and treatment, including palliative care and treatment, to minimise the person's suffering and maximise the person's quality of life, (e) a therapeutic relationship between a person and the person's health practitioner should, wherever possible, be supported and maintained, (f) a person should be encouraged to openly discuss death and dying, and the person's preferences and values regarding the person's care, treatment and end of life should be encouraged and promoted, (g) a person should be supported in conversations with the person's health practitioners, family, carers and community about care and treatment preferences, (h) a person is entitled to genuine choices about the person's care, treatment and end of life, irrespective of where the person lives in New South Wales and having regard to the person's culture and language, (i) a person who is a regional resident is entitled to the same level of access to voluntary assisted dying and high quality care and treatment, including palliative care and treatment, as a person who lives in a metropolitan region, (j) there is a need to protect persons who may be subject to pressure or duress, Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (k) all persons, including health practitioners, have the right to be shown respect for their culture, religion, beliefs, values and personal characteristics. (2) In subsection (1), the reference to a person exercising a function under this Act includes the Supreme Court exercising its jurisdiction in relation to a decision made under this Act. Division 3 Interpretation 5 Definitions The Dictionary in Schedule 1 defines words and expressions used in this Act. Editorial note The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act. 6 Decision-making capacity (1) For the purposes of this Act, a patient has decision-making capacity in relation to voluntary assisted dying if the patient has the capacity to— (a) understand information or advice about a voluntary assisted dying decision required under this Act to be provided to the patient, and (b) remember the information or advice referred to in paragraph (a) to the extent necessary to make a voluntary assisted dying decision, and (c) understand the matters involved in a voluntary assisted dying decision, and (d) understand the effect of a voluntary assisted dying decision, and (e) weigh up the factors referred to in paragraphs (a), (c) and (d) for the purposes of making a voluntary assisted dying decision, and (f) communicate a voluntary assisted dying decision in some way. (2) For the purposes of this Act, a patient is— (a) presumed to have the capacity to understand information or advice about voluntary assisted dying if it reasonably appears the patient is able to understand an explanation of the consequences of making the decision, and (b) presumed to have decision-making capacity in relation to voluntary assisted dying unless the patient is shown not to have the capacity. (3) In this section— voluntary assisted dying decision means— (a) a request for access to voluntary assisted dying, or (b) a decision to access voluntary assisted dying. 7 Voluntary assisted dying substance (1) The Health Secretary may, in writing, approve a Schedule 4 poison or Schedule 8 poison for use under this Act for the purpose of causing a patient's death. (2) A poison approved under subsection (1) is a voluntary assisted dying substance. (3) The Health Secretary must keep a list of voluntary assisted dying substances. 8 When request and assessment process completed For the purposes of this Act, the request and assessment process has been completed in relation to a patient if the patient's coordinating practitioner— (a) has completed the final review form in relation to the patient, and (b) has certified in the final review form that the request and assessment process has been completed in accordance with this Act. Division 4 Other provisions 9 Registered health practitioner may refuse to participate in voluntary assisted dying (1) A registered health practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to do any of the following— (a) participate in the request and assessment process, (b) prescribe, supply or administer a voluntary assisted dying substance, (c) be present at the time of the administration of a voluntary assisted dying substance. (2) Subsection (1) does not limit the circumstances in which a registered health practitioner may refuse to do any of the things referred to in the subsection. 10 Health care worker not to initiate discussion about voluntary assisted dying (1) A health care worker who provides health services or professional care services to a person must not, while providing the services to the person— (a) initiate a discussion with the person that is in substance about voluntary assisted dying, or (b) in substance, suggest voluntary assisted dying to the person. Editorial note A contravention of this Act is capable of constituting unsatisfactory professional conduct or professional misconduct for the purposes of the Health Practitioner Regulation National Law, whether or not the contravention constitutes an offence. (2) Subsection (1) does not apply to a medical practitioner who initiates a discussion or makes a suggestion referred to in subsection (1)(a) or (b) if, at the time the discussion is initiated or the suggestion is made, the medical practitioner also informs the person about the following— (a) the treatment options available to the person that would be considered standard care for the disease, illness or medical condition with which the person has been diagnosed, (b) the likely outcomes of the treatment options available to the person, (c) the palliative care and treatment options available to the person, (d) the likely outcomes of the palliative care and treatment options. (3) Also, subsection (1) does not apply to a health care worker, other than a medical practitioner, who initiates a discussion or makes a suggestion referred to in subsection (1)(a) or (b) if, at the time the discussion is initiated or the suggestion is made, the health care worker also informs the person that the person— (a) has palliative care and treatment options available, and (b) should discuss the palliative care and treatment options with the person's medical practitioner. (4) To avoid doubt, subsection (1) does not apply to a health care worker who provides information about voluntary assisted dying to a person at the person's request. (5) In this section— health care worker means— (a) a registered health practitioner, or (b) another person who provides health services or professional care services. 11 Contravention of Act by registered health practitioner (1) A contravention of a provision of this Act by a registered health practitioner is capable of constituting unsatisfactory professional conduct or professional misconduct for the purposes of the Health Practitioner Regulation National Law. (2) Subsection (1) applies whether or not the contravention constitutes an offence under this Act. 12 Voluntary assisted dying not suicide (1) For the purposes of the law of the State, a person who dies as the result of the administration of a prescribed substance in accordance with this Act does not die by suicide. (2) Voluntary assisted dying action does not— (a) constitute an attempt by the person to cause serious physical harm to the person for the purposes of the Mental Health Act 2007, section 22, or (b) otherwise provide a ground for a police officer to take action under that section. (3) In this section— voluntary assisted dying action means any of the following done in accordance with this Act— (a) a request for access to voluntary assisted dying, (b) a self-administration decision or a practitioner administration decision, (c) self-administration by a person of a prescribed substance, (d) asking an administering practitioner to administer a prescribed substance. 13 Inherent jurisdiction of Supreme Court not affected Nothing in this Act affects the inherent jurisdiction of the Supreme Court. 14 Relationship with Poisons and Therapeutic Goods Act 1966 and Drug Misuse and Trafficking Act 1985 If there is an inconsistency between a provision of this Act and a provision of the Poisons and Therapeutic Goods Act 1966 or the Drug Misuse and Trafficking Act 1985, the provision of this Act prevails to the extent of the conflict or inconsistency. Part 2 Requirements for access to voluntary assisted dying 15 When person may access voluntary assisted dying A person may access voluntary assisted dying if— (a) the person has made a first request, and (b) the person has been assessed as eligible for access to voluntary assisted dying by— (i) the person's coordinating practitioner, and (ii) the person's consulting practitioner, and (c) the person has made a written declaration, and (d) the person has made a final request to the person's coordinating practitioner, and (e) the person's coordinating practitioner has certified in a final review form that— (i) the request and assessment process has been completed in accordance with this Act, and (ii) the practitioner is satisfied of each of the matters referred to in section 52(3)(f), and (f) the person has made an administration decision, and (g) if the person has made a self-administration decision—the person has appointed a contact person, and (h) a voluntary assisted dying substance authority has been issued by the Board in relation to the person. 16 Eligibility criteria (1) The following criteria must be met for a person to be eligible for access to voluntary assisted dying— (a) the person is an adult, (b) the person— (i) is an Australian citizen, or (ii) is a permanent resident of Australia, or (iii) at the time of making a first request, has been resident in Australia for at least 3 continuous years, (c) at the time of making a first request, the person has been ordinarily resident in New South Wales for a period of at least 12 months, (d) the person is diagnosed with at least 1 disease, illness or medical condition that— (i) is advanced, progressive and will cause death, and (ii) will, on the balance of probabilities, cause death— (A) for a disease, illness or medical condition that is neurodegenerative—within a period of 12 months, or Editorial note See subsection (2)(b) which provides that a person is not eligible for access to voluntary assisted dying merely because the person has dementia. (B) otherwise—within a period of 6 months, and (iii) is causing suffering to the person that cannot be relieved in a way the person considers tolerable, (e) the person has decision-making capacity in relation to voluntary assisted dying, (f) the person is acting voluntarily, (g) the person is not acting because of pressure or duress, Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (h) the person's request for access to voluntary assisted dying is enduring. (2) A person is not eligible for access to voluntary assisted dying merely because the person has— (a) a disability, or (b) dementia, or (c) a mental health impairment within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. (3) To avoid doubt, if a person permanently loses decision-making capacity in relation to voluntary assisted dying at any time during the request and assessment process the person ceases to be eligible for access to voluntary assisted dying under subsection (1)(e). (4) For subsection (3)— permanently, for a loss of decision-making capacity in relation to voluntary assisted dying by a person, means the person has lost the capacity to make decisions in relation to voluntary assisted dying forever. 17 Residency exemptions (1) A person may apply to the Board for an exemption from the requirement in section 16(1)(c). (2) The Board must grant the exemption if satisfied— (a) the person has a substantial connection to New South Wales, and Editorial note 1 a person who is a long-term resident of a place close to the New South Wales border and who works in New South Wales or receives medical treatment in New South Wales 2 a person who has family members who reside in New South Wales and who has moved to New South Wales to be closer to the family members for care and support as a result of the person's terminal illness 3 a person who resides outside New South Wales but who is a former resident of New South Wales and whose family resides in New South Wales (b) there are compassionate grounds for granting the exemption. Part 3 Requesting access to voluntary assisted dying and assessment of eligibility Division 1 Eligibility requirements for medical practitioners 18 Eligibility to act as coordinating practitioner or consulting practitioner A medical practitioner is eligible to act as a coordinating practitioner or consulting practitioner for a patient if— (a) the medical practitioner— (i) holds specialist registration, or (ii) holds general registration and has practised the medical profession for at least 10 years as the holder of general registration, and (b) the medical practitioner has completed the approved training, and (c) the medical practitioner meets other requirements prescribed by the regulations for the purposes of this section, and (d) the medical practitioner is not a family member of the patient, and (e) the medical practitioner does not know or believe that the practitioner— (i) is a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services as the coordinating practitioner or consulting practitioner for the patient. Division 2 First request 19 Person may make first request to medical practitioner (1) A person may make a request to a medical practitioner for access to voluntary assisted dying. (2) The request must be— (a) clear and unambiguous, and (b) made during a medical consultation, and (c) made in person or, if that is not practicable, in accordance with section 176(1)(a). (3) The person may make the request— (a) verbally, or (b) in another way. Editorial note by use of gestures (4) The person may make the request with the assistance of an interpreter. 20 No obligation to continue after making first request (1) A person who makes a first request may decide at any time not to continue the request and assessment process. (2) The request and assessment process ends if the person decides not to continue the process. (3) If the request and assessment process ends under subsection (2), the person may begin a new request and assessment process by making a new first request. 21 Medical practitioner to accept or refuse first request (1) If a first request is made to a medical practitioner, the practitioner must decide to— (a) accept the request, or (b) refuse the request. (2) The only reasons for which the medical practitioner may decide to refuse the first request are that— (a) the practitioner has a conscientious objection to voluntary assisted dying or is otherwise unwilling to perform the duties of a coordinating practitioner, or (b) the practitioner is unable to perform the duties of a coordinating practitioner because of unavailability or another reason, or (c) the practitioner is required to refuse the request under subsection (3). (3) The medical practitioner must immediately decide to refuse the first request if the practitioner is not eligible to act as a coordinating practitioner at the time the first request is made. (4) Unless subsection (5) applies, the medical practitioner must, within 2 business days after the first request is made— (a) inform the patient that the practitioner has decided to accept or refuse the request, and (b) give the patient the information approved by the Health Secretary, by Gazette notice, for the purposes of this section. (5) If the medical practitioner decides to refuse the first request because the practitioner has a conscientious objection to voluntary assisted dying, the practitioner must, immediately after the first request is made, inform the patient the practitioner has decided to refuse the request. 22 Medical practitioner to record first request and acceptance or refusal The medical practitioner must record the following in the patient's medical record— (a) the first request, (b) the practitioner's decision to accept or refuse the first request, Editorial note See section 21(2), which provides the only reasons for which a medical practitioner may refuse a first request. (c) if the practitioner's decision is to refuse the first request—the reason for the refusal, (d) whether the practitioner has given the patient the information referred to in section 21(4)(b) and (5). 23 Medical practitioner to notify Board of first request (1) Within 5 business days after deciding to accept or refuse the first request, the medical practitioner must— (a) complete the approved form (the first request form), and (b) give a copy of the first request form to the Board. (2) The first request form must include the following— (a) the patient's name, date of birth and contact details, (b) the medical practitioner's name and contact details, (c) the date the first request was made, (d) whether the first request was made in person or using audiovisual communication, (e) whether the first request was made verbally or in another way, (f) if the patient was assisted by an interpreter to make the first request—the interpreter's name, contact details and accreditation details, (g) the medical practitioner's decision to accept or refuse the first request, (h) if the medical practitioner's decision is to refuse the first request—the reason for the refusal, (i) the date the medical practitioner informed the patient of the practitioner's decision and gave the patient the information referred to in section 21(4)(b) or (5), (j) the medical practitioner's signature and the date the form was signed. 24 Medical practitioner becomes coordinating practitioner if first request accepted If the medical practitioner accepts the first request, the practitioner becomes the coordinating practitioner for the patient. Division 3 First assessment 25 First assessment (1) The coordinating practitioner for a patient must assess whether the patient is eligible for access to voluntary assisted dying. (2) For the purposes of subsection (1), the coordinating practitioner must make a decision in relation to each of the eligibility criteria. (3) Nothing in this section prevents the coordinating practitioner from having regard to relevant information about the patient that has been prepared by, or at the instigation of, another registered health practitioner. 26 Referral to another medical practitioner for opinion—disease, illness or medical condition (1) This section applies if the coordinating practitioner is unable to decide whether the patient has a disease, illness or medical condition that meets the requirements of section 16(1)(d). (2) The coordinating practitioner must refer the patient to a medical practitioner who has appropriate skills and training to make a decision about the matter. Editorial note See section 181(2)(a) about guidelines that apply to the referral. (3) The medical practitioner must— (a) decide whether the patient has a disease, illness or medical condition that— (i) is advanced, progressive and will cause death, and (ii) will, on the balance of probabilities, cause death— (A) for a disease, illness or medical condition that is neurodegenerative—within a period of 12 months, or (B) otherwise—within a period of 6 months, and (iii) is causing suffering to the person that cannot be relieved in a way the person considers tolerable, and (b) provide a clinical report to the coordinating practitioner that sets out the medical practitioner's decision. (4) If the coordinating practitioner makes a referral under this section, the coordinating practitioner may adopt the decision of the medical practitioner about the matter in relation to which the referral was made. (5) A medical practitioner to whom the patient is referred under this section must not be— (a) a family member of the patient, or (b) a person who knows or believes that they— (i) are a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services in connection with the referral. 27 Referral for opinion—other matters (1) This section applies if the coordinating practitioner is unable to decide whether— (a) as required by section 16(1)(e), the patient has decision-making capacity in relation to voluntary assisted dying, or Editorial note due to a past or current mental illness of the patient (b) as required by section 16(1)(f), the patient is acting voluntarily, or (c) as required by section 16(1)(g), the patient is not acting because of pressure or duress. Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (2) The coordinating practitioner must refer the patient to— (a) if the coordinating practitioner is unable to decide whether the patient has decision-making capacity in relation to voluntary assisted dying—a psychiatrist or another registered health practitioner who has appropriate skills and training to make a decision about the matter, or (b) if the coordinating practitioner is unable to decide whether the patient is or is not acting voluntarily or whether the patient is or is not acting because of pressure or duress—a psychiatrist or another registered health practitioner or person who has appropriate skills and training to make a decision about the matter. Editorial note See section 181(2)(b) about guidelines that apply to the referral. (3) If the coordinating practitioner makes a referral under this section, the coordinating practitioner may adopt the decision of the psychiatrist, other registered health practitioner or other person about the matter in relation to which the referral was made. (4) A psychiatrist, registered health practitioner or other person to whom the patient is referred under this section must not be— (a) a family member of the patient, or (b) a person who knows or believes that they— (i) are a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services in connection with the referral. 28 Information to be provided if patient assessed as meeting eligibility criteria (1) If the coordinating practitioner is satisfied the patient meets all of the eligibility criteria, the coordinating practitioner must inform the patient about the following matters— (a) the patient's diagnosis and prognosis, (b) the treatment options available to the patient that would be considered standard care for the disease, illness or medical condition with which the patient has been diagnosed and the likely outcomes of treatment, (c) the palliative care and treatment options available to the patient and the likely outcomes of the care and treatment, (d) the potential risks of self-administering or being administered a voluntary assisted dying substance likely to be prescribed under this Act for the purposes of causing the patient's death, (e) that the expected outcome of self-administering or being administered a substance referred to in paragraph (d) is death, (f) the method by which a substance referred to in paragraph (d) is likely to be self-administered or administered, (g) the request and assessment process, including the requirement for a written declaration signed by the patient, or a person on the patient's behalf, in the presence of 2 witnesses, (h) that if the patient makes a self-administration decision, the patient must appoint a contact person, (i) that the patient may decide at any time not to continue the request and assessment process or not to access voluntary assisted dying, (j) it is unlawful for a person to apply pressure or duress on the patient to request voluntary assisted dying or to continue the request and assessment process, Editorial note See the Crimes Act 1900, section 41C for the relevant offence (k) that if the patient is receiving ongoing health services from a medical practitioner (the treating practitioner) other than the coordinating practitioner— (i) the patient is encouraged to inform the treating practitioner about the patient's request for access to voluntary assisted dying, and (ii) it is unlawful for the treating practitioner to withdraw other services the practitioner would usually provide to the patient or the patient's family and other close contacts because of the patient's request for access to voluntary assisted dying, and (iii) if the treating practitioner withdraws services mentioned in subparagraph (ii)—the matter should be the subject of a complaint to the Health Care Complaints Commission under the Health Care Complaints Act 1993, (l) that if the patient is a resident of a residential facility, whether permanently or not, the patient should inform the residential facility manager about the patient's request for access to voluntary assisted dying. (2) For the purposes of subsection (1)(d), if the access standard includes information about the potential risks of self-administering or being administered a voluntary assisted dying substance likely to be prescribed under this Act for the purposes of causing the patient's death, the information must be given in accordance with the access standard. Editorial note See section 174(3), which provides that the access standard may include information about the potential risks of self-administering or being administered a voluntary assisted dying substance likely to be prescribed under this Act for the purposes of causing a patient's death. (3) The withdrawal of services by a medical practitioner in circumstances mentioned in subsection (1)(k)(ii) may be unsatisfactory professional conduct for the purposes of the Health Practitioner Regulation National Law. (4) In addition to informing the patient about the matters referred to in subsection (1), the coordinating practitioner must take all reasonable steps to fully explain to the patient and, if the patient consents, another person nominated by the patient— (a) all relevant clinical guidelines, and (b) a plan in relation to the administration of a voluntary assisted dying substance. (5) Nothing in this section affects a duty a medical practitioner has— (a) at common law, or (b) under another Act or other law. 29 Outcome of first assessment (1) The coordinating practitioner must assess the patient as eligible for access to voluntary assisted dying if the coordinating practitioner is satisfied— (a) the patient meets all of the eligibility criteria, and (b) the patient understands the information required to be provided under section 28(1). (2) If the coordinating practitioner is not satisfied about a matter in subsection (1)— (a) the coordinating practitioner must assess the patient as ineligible for access to voluntary assisted dying, and (b) the request and assessment process ends. Editorial note See sections 26 and 27, which provide that the coordinating practitioner may, in certain circumstances, refer a patient to another registered health practitioner or another person if the coordinating practitioner is unable to make a decision about eligibility for access to voluntary assisted dying. 30 Recording and notification of outcome of first assessment (1) The coordinating practitioner must inform the patient of the outcome of the first assessment as soon as practicable after its completion. (2) Within 5 business days after completing the first assessment, the coordinating practitioner must— (a) complete the approved form (the first assessment report form), and (b) give a copy of the first assessment report form to the Board. Maximum penalty—100 penalty units. (3) As soon as practicable after completing the first assessment report form, the coordinating practitioner must give a copy of the form to the patient. (4) The first assessment report form must include the following— (a) the patient's name, date of birth and contact details, (b) the following information about the patient— (i) gender, (ii) nationality, (iii) ethnicity, (iv) whether the patient has a disability and, if so, details of the disability, (v) whether the patient's first language is a language other than English, (vi) whether the coordinating practitioner engaged an interpreter in accordance with section 176(2) to communicate the information in section 28(1) and (4) to the patient, (c) the coordinating practitioner's name and contact details, (d) a statement confirming the coordinating practitioner meets the requirements of section 18, (e) the date the first request was made, (f) the date the first assessment was completed, (g) the outcome of the first assessment, including the coordinating practitioner's decision about each of the eligibility criteria, (h) the date the patient was informed of the outcome of the first assessment, (i) if the patient was referred under section 26(2) or 27(2)—the outcome of the referral, including a copy of a report given by the registered health practitioner or other person to whom the patient was referred, (j) if the patient was assisted by an interpreter when having the first assessment—the interpreter's name, contact details and accreditation details, (k) the palliative care and treatment options available to the patient and the likely outcomes of the care and treatment, (l) a statement confirming the patient has been advised of the palliative care and treatment options available to the patient and the likely outcomes of the care and treatment, (m) a statement confirming the patient has been advised it is unlawful for a person to apply pressure or duress on the patient to request voluntary assisted dying or to continue the request and assessment process, Editorial note See the Crimes Act 1900, section 41C for the relevant offence (n) a statement confirming the coordinating practitioner has asked the patient whether the patient has experienced pressure or duress to request access to voluntary assisted dying from a person who is a beneficiary under the patient's will or may otherwise benefit financially or in another material way from the patient's death, (o) a statement confirming the coordinating practitioner has acted in accordance with guidelines under section 181 in relation to the following matters— (i) deciding whether to refer the patient to a specialist under section 26, (ii) deciding whether to refer the patient to a psychiatrist, another registered health practitioner or another person under section 27, (p) a statement confirming the coordinating practitioner has acted in accordance with guidelines under section 181 in determining whether the patient has experienced pressure or duress to request access to voluntary assisted dying, (q) the coordinating practitioner's signature and the date the form was signed. 31 Referral for consulting assessment if patient assessed as eligible If the coordinating practitioner assesses the patient as eligible for access to voluntary assisted dying, the practitioner must refer the patient to another medical practitioner for a consulting assessment. Division 4 Consulting assessment 32 Medical practitioner to accept or refuse referral for consulting assessment (1) If a patient is referred to a medical practitioner for a consulting assessment under section 31, 42 or 175(6)(a), the practitioner must decide to accept or refuse the referral. (2) The reasons for which the medical practitioner may decide to refuse the referral are that— (a) the practitioner has a conscientious objection to voluntary assisted dying or is otherwise unwilling to perform the duties of a consulting practitioner, or (b) the practitioner is unable to perform the duties of a consulting practitioner because of unavailability or some other reason, or (c) the practitioner is required to refuse the referral under subsection (3). (3) The medical practitioner must decide to refuse the referral if the practitioner is not eligible to act as a consulting practitioner. (4) Unless subsection (5) applies, the medical practitioner must, within 2 business days after receiving the referral, inform the patient and the patient's coordinating practitioner that the practitioner has decided to— (a) accept the referral, or (b) refuse the referral. (5) If the medical practitioner decides to refuse the referral because the practitioner has a conscientious objection to voluntary assisted dying, the practitioner must, immediately after receiving the referral, inform the patient and the patient's coordinating practitioner that the practitioner has decided to refuse the referral. 33 Medical practitioner to record referral and acceptance or refusal The medical practitioner must record the following in the patient's medical record— (a) the referral, (b) the practitioner's decision to accept or refuse the referral, (c) if the practitioner's decision is to refuse the referral—the reason for the refusal. 34 Medical practitioner to notify Board of referral (1) Within 5 business days after deciding to accept or refuse the referral, the medical practitioner must— (a) complete the approved form (the consultation referral form), and (b) give a copy of the consultation referral form to the Board. Maximum penalty—100 penalty units. (2) The consultation referral form must include the following— (a) the patient's name, date of birth and contact details, (b) the medical practitioner's name and contact details, (c) the date the referral was received, (d) the medical practitioner's decision to accept or refuse the referral, (e) if the medical practitioner's decision is to refuse the referral—the reason for the refusal, (f) the date the medical practitioner informed the patient and the patient's coordinating practitioner of the medical practitioner's decision, (g) the medical practitioner's signature and the date the form was signed. 35 Medical practitioner becomes consulting practitioner if referral accepted If the medical practitioner accepts the referral, the practitioner becomes the consulting practitioner for the patient. 36 Consulting assessment (1) The consulting practitioner for a patient must assess whether the patient is eligible for access to voluntary assisted dying. (2) For the purposes of subsection (1), the consulting practitioner must— (a) make a decision about each of the eligibility criteria, and (b) independently of the coordinating practitioner, form the practitioner's own opinions on the matters to be decided. (3) Nothing in this section prevents the consulting practitioner having regard to relevant information about the patient that has been prepared by, or at the instigation of, another registered health practitioner. 37 Referral to another medical practitioner for opinion—disease, illness or medical condition (1) This section applies if the consulting practitioner is unable to decide whether the patient has a disease, illness or medical condition that meets the requirements of section 16(1)(d). (2) The consulting practitioner must refer the patient to a medical practitioner who has appropriate skills and training to make a decision about the matter. Editorial note See section 181(2)(a) about guidelines that apply to the referral. (3) The medical practitioner must— (a) decide whether the patient has a disease, illness or medical condition that— (i) is advanced, progressive and will cause death, and (ii) will, on the balance of probabilities, cause death— (A) for a disease, illness or medical condition that is neurodegenerative—within a period of 12 months, or (B) otherwise—within a period of 6 months, and (iii) is causing suffering to the person that cannot be relieved in a way the person considers tolerable, and (b) provide a clinical report to the consulting practitioner that sets out the medical practitioner's decision. (4) If the consulting practitioner makes a referral under this section, the consulting practitioner may adopt the decision of the medical practitioner about the matter in relation to which the referral was made. (5) A medical practitioner to whom the patient is referred under this section must not be— (a) a family member of the patient, or (b) a person who knows or believes that they— (i) are a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services in connection with the referral. 38 Referral for opinion—other matters (1) This section applies if the consulting practitioner is unable to decide whether— (a) as required by section 16(1)(e), the patient has decision-making capacity in relation to voluntary assisted dying, or Editorial note due to a past or current mental illness of the patient (b) as required by section 16(1)(f), the patient is acting voluntarily, or (c) as required by section 16(1)(g), the patient is not acting because of pressure or duress. Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (2) The consulting practitioner must refer the patient to— (a) if the consulting practitioner is unable to decide whether the patient has decision-making capacity in relation to voluntary assisted dying—a psychiatrist or another registered health practitioner who has appropriate skills and training to make a decision about the matter, or (b) if the consulting practitioner is unable to decide whether the patient is or is not acting voluntarily or is or is not acting because of pressure or duress—a psychiatrist or another registered health practitioner or person who has appropriate skills and training to make a decision about the matter. Editorial note See section 181(2)(b) about guidelines that apply to the referral. (3) If the consulting practitioner makes a referral under this section, the consulting practitioner may adopt the decision of the psychiatrist, other registered health practitioner or other person about the matter in relation to which the referral was made. (4) A psychiatrist, registered health practitioner or other person to whom the patient is referred under this section must not be— (a) a family member of the patient, or (b) a person who knows or believes that they— (i) are a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services in connection with the referral. 39 Information to be provided if patient assessed as meeting eligibility criteria (1) If the consulting practitioner is satisfied the patient meets all of the eligibility criteria, the consulting practitioner must give the patient information about the matters referred to in section 28(1). (2) Nothing in this section affects a duty a medical practitioner— (a) has at common law, or (b) under another Act or law. 40 Outcome of consulting assessment (1) The consulting practitioner must assess the patient as eligible for access to voluntary assisted dying if the consulting practitioner is satisfied— (a) the patient meets all of the eligibility criteria, and (b) the patient understands the information required to be given under section 39(1). (2) If the consulting practitioner is not satisfied about a matter in subsection (1), the consulting practitioner must assess the patient as ineligible for access to voluntary assisted dying. 41 Recording and notification of outcome of consulting assessment (1) The consulting practitioner must inform the patient and the patient's coordinating practitioner of the outcome of the consulting assessment as soon as practicable after its completion. (2) Within 5 business days after completing the consulting assessment, the consulting practitioner must— (a) complete the approved form (the consulting assessment report form) in relation to the patient, and (b) give a copy of the consulting assessment report form to the Board. Maximum penalty—100 penalty units. (3) As soon as practicable after completing the consulting assessment report form, the consulting practitioner must give a copy of the form to the patient. (4) The consulting assessment report form must include the following— (a) the patient's name, date of birth and contact details, (b) the consulting practitioner's name and contact details, (c) a statement confirming the consulting practitioner meets the requirements of section 18, (d) the date the referral for the consulting assessment was made, (e) the date the referral for the consulting assessment was received, (f) the date the consulting assessment was completed, (g) the outcome of the consulting assessment, including the consulting practitioner's decision about each of the eligibility criteria, (h) the date the patient was informed of the outcome of the consulting assessment, (i) the date the patient's coordinating practitioner was informed of the outcome of the consulting assessment, (j) if the patient was referred under section 37(2) or 38(2)—the outcome of the referral, including a copy of a report given by the registered health practitioner or other person to whom the patient was referred, (k) if the patient was assisted by an interpreter when having the consulting assessment—the interpreter's name, contact details and accreditation details, (l) the palliative care and treatment options available to the patient and the likely outcomes of the care and treatment, (m) a statement confirming the patient has been advised it is unlawful for a person to apply pressure or duress on the patient to request voluntary assisted dying or to continue the request and assessment process, Editorial note See the Crimes Act 1900, section 41C for the relevant offence (n) a statement confirming the practitioner has asked the patient whether the patient has experienced pressure or duress to request access to voluntary assisted dying from a person who is a beneficiary under the patient's will or may otherwise benefit financially or in another material way from the patient's death, (o) a statement confirming the consulting practitioner has acted in accordance with guidelines under section 181 in relation to the following matters— (i) deciding whether to refer the patient to a medical practitioner under section 26, (ii) deciding whether to refer the patient to a psychiatrist, another registered health practitioner or another person under section 27, (p) a statement confirming the consulting practitioner has acted in accordance with guidelines under section 181 in determining whether the patient has experienced pressure or duress to request access to voluntary assisted dying, (q) the consulting practitioner's signature and the date the form was signed. (5) The consulting practitioner must give a copy of the consulting assessment report form to the patient's coordinating practitioner as soon as practicable after completing the consulting assessment. 42 Referral for further consulting assessment if patient assessed as ineligible If the consulting practitioner assesses the patient as ineligible for access to voluntary assisted dying, the patient's coordinating practitioner may refer the patient to another medical practitioner for a further consulting assessment. Division 5 Written declaration 43 Patient assessed as eligible may make written declaration (1) A patient may make a written declaration requesting access to voluntary assisted dying if the patient has been assessed as eligible for access to voluntary assisted dying by— (a) the patient's coordinating practitioner, and (b) the patient's consulting practitioner. (2) The written declaration must be— (a) in the approved form, and (b) given to the patient's coordinating practitioner. (3) The written declaration must— (a) state that the patient— (i) makes the declaration voluntarily, and (ii) does not make the declaration because of pressure or duress, and Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (iii) understands its nature and effect, and (b) be signed by the patient, or a person referred to in subsection (4), in the presence of 2 witnesses, and (c) include the following— (i) the patient's name, date of birth and contact details, (ii) if the patient was assisted by an interpreter—the interpreter's name, contact details and accreditation details, (iii) the name and contact details of the patient's coordinating practitioner. (4) A person may sign the written declaration on behalf of the patient if— (a) the patient is unable to sign the declaration, and (b) the patient directs the person to sign the declaration, and (c) the person— (i) is an adult, and (ii) is not a witness to the signing of the declaration, and (iii) is not the coordinating practitioner or consulting practitioner for the patient making the declaration. (5) A person who signs the written declaration on behalf of the patient must do so in the patient's presence. (6) If the patient makes the written declaration with the assistance of an interpreter, the interpreter must certify on the declaration that the interpreter provided a true and correct translation of any material translated. 44 Witness to signing of written declaration (1) For the purposes of section 43(3)(b), a person is eligible to witness the signing of a written declaration if the person— (a) is an adult, and (b) is not an ineligible witness. (2) For the purposes of subsection (1)(b), a person is an ineligible witness if the person— (a) knows or believes the person— (i) is a beneficiary under a will of the patient making the declaration, or (ii) may otherwise benefit financially or in any other material way from the death of the patient making the declaration, or (b) is a family member of the patient making the declaration, or (c) is the coordinating practitioner or consulting practitioner for the patient making the declaration, or (d) is a family member or employee of the coordinating practitioner or consulting practitioner for the patient making the declaration. 45 Certification of witness to signing of written declaration (1) A person who witnesses the signing of a written declaration by the patient making the declaration must— (a) certify in writing in the declaration that, in the presence of the witness, the patient appeared to freely and voluntarily sign the declaration, and (b) state that the witness is not knowingly an ineligible witness. (2) A person who witnesses the signing of a written declaration by another person on behalf of the patient making the declaration must— (a) certify in writing in the declaration that— (i) in the presence of the witness, the patient appeared to freely and voluntarily direct the other person to sign the declaration, and (ii) the other person signed the declaration in the presence of the patient and the witness, and (b) state that the witness is not knowingly an ineligible witness. (3) In this section— ineligible witness means a person who is an ineligible witness under section 44(2). 46 Coordinating practitioner to record written declaration If a patient gives a written declaration to the patient's coordinating practitioner, the coordinating practitioner must record the following in the patient's medical record— (a) the date the written declaration was made, (b) the date the written declaration was received by the coordinating practitioner. 47 Coordinating practitioner to notify Board of written declaration Within 5 business days after receiving a written declaration made by a patient, the patient's coordinating practitioner must give a copy of the declaration to the Board. Maximum penalty—100 penalty units. Division 6 Final request and final review 48 Patient may make final request to coordinating practitioner (1) A patient who has made a written declaration may make a final request to the patient's coordinating practitioner for access to voluntary assisted dying. (2) The final request must be— (a) clear and unambiguous, and (b) made in person or, if that is not practicable, in accordance with section 176(1)(a). (3) The patient may make the final request— (a) verbally, or (b) in another way. Editorial note by use of gestures 49 When final request may be made (1) The final request must not be made— (a) before the end of the designated period, except as provided in subsection (2), and (b) until after the day on which the consulting assessment that assessed the patient as eligible for access to voluntary assisted dying was completed. (2) The final request may be made before the end of the designated period if— (a) in the reasonable opinion of the patient's coordinating practitioner, the patient is likely to die, or to lose decision-making capacity in relation to voluntary assisted dying, before the end of the designated period, and (b) the coordinating practitioner's opinion is consistent with the opinion of the patient's consulting practitioner. 50 Coordinating practitioner to record final request The patient's coordinating practitioner must record in the patient's medical record— (a) the date the final request was made, and (b) if the final request was made before the end of the designated period—the reason for the final request being made before the end of the period. 51 Coordinating practitioner to notify Board of final request (1) Within 5 business days after receiving a final request made by a patient, the patient's coordinating practitioner must— (a) complete the approved form (the final request form), and (b) give a copy of the final request form to the Board. Maximum penalty—100 penalty units. (2) The final request form must include the following— (a) the patient's name, date of birth and contact details, (b) the coordinating practitioner's name and contact details, (c) the date the first request was made, (d) the date the final request was made, (e) whether the final request was made in person or using audiovisual communication, (f) whether the final request was made verbally or in another way, (g) if the patient was assisted by an interpreter when making the final request—the interpreter's name, contact details and accreditation details, (h) if the final request was made before the end of the designated period—the reason for the final request being made before the end of the period, (i) the coordinating practitioner's signature and the date the form was signed. 52 Final review by coordinating practitioner on receiving final request (1) On receiving a final request made by a patient, the coordinating practitioner for the patient must— (a) review all consulting assessment report forms in relation to the patient, and (b) review the patient's written declaration, and (c) complete the approved form (the final review form) in relation to the patient. (2) In conducting the final review, the coordinating practitioner must have regard to a decision made by the Supreme Court under Part 6 in relation to a decision made in the request and assessment process. (3) The final review form must include the following— (a) the patient's name, date of birth and contact details, (b) the coordinating practitioner's name and contact details, (c) a statement that the coordinating practitioner has reviewed— (i) all consulting assessment report forms in relation to the patient, and (ii) the patient's written declaration, (d) a statement certifying whether or not the request and assessment process has been completed in accordance with this Act, (e) if the patient was assisted by an interpreter—the interpreter's name, contact details and accreditation details, (f) a statement certifying whether or not the coordinating practitioner is satisfied that— (i) the patient has decision-making capacity in relation to voluntary assisted dying, and (ii) the patient, in requesting access to voluntary assisted dying, is acting voluntarily, and (iii) the patient, in requesting access to voluntary assisted dying, is not acting because of pressure or duress, and Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (iv) the patient's request to access voluntary assisted dying is enduring, (g) the coordinating practitioner's signature and the date the form was signed. (4) Within 5 business days after completing the final review form, the coordinating practitioner must give a copy of the form to the Board. Maximum penalty—100 penalty units. 53 Technical error not to invalidate request and assessment process The validity of the request and assessment process is not affected by— (a) a minor or technical error in a document under this Act, including, for example— (i) a final review form, or (ii) a consulting assessment report form, or (iii) a patient's written declaration, or (iv) a prescription, or (b) the failure of a person to provide a form within the time required under this Act. 54 No obligation for patient to continue after completion of request and assessment process A patient for whom the request and assessment process has been completed may decide at any time not to take any further step in relation to access to voluntary assisted dying. Part 4 Accessing voluntary assisted dying and death Division 1 Eligibility requirements for administering practitioners 55 Eligibility to act as administering practitioner A person is eligible to act as an administering practitioner for a patient if— (a) the person is— (i) a medical practitioner who holds specialist registration, or (ii) a medical practitioner who holds general registration and has practised the medical profession for at least 5 years, or (iii) a medical practitioner who is an overseas-trained specialist who holds limited registration or provisional registration, or (iv) a nurse practitioner, and (b) the person has completed approved training, and (c) the person meets other requirements prescribed by the regulations for the purposes of this section, and (d) the person is not a family member of the patient, and (e) the person does not know or believe that the person— (i) is a beneficiary under a will of the patient, or (ii) may otherwise benefit financially or in any other material way from the death of the patient, other than by receiving reasonable fees for the provision of services as the administering practitioner for the patient. Division 2 Administration of voluntary assisted dying substance 56 Application of Division This Division applies if— (a) the request and assessment process has been completed in relation to a patient, and (b) the final review form for the patient certifies that the coordinating practitioner for the patient is satisfied— (i) the patient has decision-making capacity in relation to voluntary assisted dying, and (ii) the patient, in requesting access to voluntary assisted dying, is acting voluntarily, and (iii) the patient, in requesting access to voluntary assisted dying, is not acting because of pressure or duress, and Editorial note See the definition of pressure or duress in the Dictionary in Schedule 1. (iv) the patient's request to access voluntary assisted dying is enduring. 57 Administration decision (1) The patient may, in consultation with and on the advice of the patient's coordinating practitioner— (a) decide to self-administer a voluntary assisted dying substance (a self-administration decision), or (b) decide a voluntary assisted dying substance is to be administered to the patient by the administering practitioner for the patient (a practitioner administration decision). (2) An administration decision must be— (a) clear and unambiguous, and (b) made in person before the patient's coordinating practitioner or, if that is not practicable, in accordance with section 176(1)(a). (3) The patient may make an administration decision— (a) verbally, or (b) in another way. Editorial note by use of gestures (4) The patient may make the administration decision with the assistance of an interpreter. (5) If the patient makes an administration decision, the patient's coordinating practitioner must record the decision in the patient's medical record. (6) The patient's coordinating practitioner must also, within 5 business days after the patient makes an administration decision— (a) complete the approved form for the administration decision (the administration decision form) as required by subsection (7), and (b) give the Board a copy of the administration decision form. Maximum penalty—100 penalty units. (7) The administration decision form must include the following— (a) the patient's name, date of birth and contact details, (b) the coordinating practitioner's name and contact details, (c) the administration decision made by the patient, (d) the date the administration decision was made, (e) if the patient was assisted by an interpreter when making the administration decision—the interpreter's name, contact details and accreditation details, (f) the coordinating practitioner's name and the date the form