Health workers face unfair penalties in ACT's VAD bill, union says

Health practitioners face criminal penalties if they do not accept or refuse a request for voluntary assisted dying within two days.

But the Australian Nursing and Midwifery Federation said, in a submission to the bill's inquiry, the bill does not take into consideration staffing shortages in the ACT and the penalties are potentially excessive.

"The ANMF notes the nursing and midwifery workforces (among other health professions) in the ACT continue to grapple with severe staffing issues," the submission said.

"As such, the ANMF considers it to be not unforeseeable that nursing and midwifery workers (or other healthcare practitioners) would be unable to complete the relevant obligation within two working days, due to circumstances beyond their control."

Under the proposed legislation, an individual would face a fine of up to $3200 or $16,200 for a corporation if the request was not acted upon within two days.

The ANMF said the potential penalty could act as a deterrent for health professionals wanting to sign up to be a coordinating practitioner in voluntary assisted dying.

"Having regard to the size of the ACT jurisdiction, the ANMF considers the introduction of strict liability offences may be contrary to the public interest as it has the potential to render health professionals unwilling to obtain authorisation, impeding access to VAD in the ACT," the submission said.

Other Australian jurisdictions have similar time requirements although their timeframes are longer, such as five days in NSW and seven days in Victoria. Criminal liability is not always attached to breaking this.

Voluntary assisted dying legislation in all Australian states require a person's death to be expected in a certain time frame ranging from six to 12 months but the ACT has not included this in its legislation.

Under the ACT's legislation, a person will be able to access voluntary assisted dying if they have an illness that is advanced, progressive and expected to cause death. They must have decision-making capacity and be "in the last stages of life".

But doctors have also expressed concern at the wording of "in the last stages of their life", which is used as part of the eligibility criteria for voluntary assisted dying.

A submission from the group Doctors for Assisted Dying Choice said this was not a recognised medical expression or an established legal phrase.

"To many people 'in the last stages of life' means the last few days of life but it could also be argued that anyone over 80 years of age is in the last stages of life although they may still have many years of healthy existence ahead," the submission said.

The group proposed the ACT consider a different definition: "in the opinion of the individual, after discussion with their coordinating practitioner, consulting practitioner, or treating medical practitioner, they are in the last stage of their life, or are in the last stage of their life with decision-making capacity".

The group also suggested the ACT could amend the criteria to say a person was eligible if the only treatment they could receive for their illness was palliative or only used to ease pain or suffering.

Doctors for Assisted Dying Choice was complementary of the ACT's decision to not include a required time frame for death, saying it would allow patients with early dementia to access voluntary assisted dying.

Public hearings are likely to be held as part of the inquiry in the new year with the committee required to hand down its report by the end of February.

Human Rights Minister Tara Cheyne is hopeful the bill will pass in the first half of 2024, meaning Canberrans would be able to access voluntary assisted dying by the end of 2025.