Voluntary Assisted Dying Laws Pass in NSW

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The Voluntary Assisted Dying Bill 2021 (“Bill”) passed through both houses of the New South Wales Parliament on 19 May 2022 and will commence in approximately 18 months. The passage of the Bill means that all States in Australia now have legislation in place to regulate euthanasia, otherwise known as voluntary assisted dying (“VAD”).
In this article, we will outline the main features of the relevant legislation in New South Wales, Queensland and Victoria.

New South Wales

A person may only access VAD if the following conditions are met:

  • The person is over the age of 18 years;
  • The person is an Australian citizen, a permanent resident or has been an Australian resident for at least three continuous years AND has resided in New South Wales for at least 12 months;
  • The person is diagnosed with at least one disease, illness or medical condition that will cause death within six months (or 12 months for neurodegenerative diseases) AND is causing suffering to the person that cannot be relieved in a way the person considers tolerable;
  • The person has capacity to make a decision regarding VAD (and if he or she permanently loses that capacity during the VAD process, he or she will cease to be eligible for VAD) and no particular disability or mental health impairment alone will automatically disqualify a person for VAD;
  • The person is acting voluntarily and free of pressure or duress; and
  • The person’s request for VAD is enduring.

The person’s eligibility must be assessed and confirmed by his or her coordinating doctor (or another doctor if the coordinating doctor is unable to decide certain matters). Section 18 of the Bill sets out limitations regarding who can act as a person’s coordinating doctor (e.g. the doctor must not be a family member of the patient and must not believe that he or she is a beneficiary under the patient’s will).

The VAD process must be initiated by the patient and not by a health care worker in the course of providing health services to that patient (unless the patient requests such information or the health care worker also informs the patient about palliative care and treatment options available). After requesting VAD, the patient’s doctor must either accept or refuse the request. Importantly, a medical professional may refuse the request process because of a conscientious objection.

If the patient’s doctor accepts the request, the patient will then submit a written declaration (witnessed by two other persons) to the doctor and the patient can then make a final request for VAD but not earlier than five days after making the first request (unless the doctor considers the patient may die or lose capacity before then). Once the final request is accepted, the patient will then have the option to either self-administer a VAD substance or have it administered by the coordinating doctor (or another doctor) in the presence of an independent witness. If a person dies as the result of VAD, this will not constitute suicide.

There are various prescribed forms that the doctor and patient need to complete throughout the VAD process and a separate VAD Board established by the Bill will need to be notified at every step.

Queensland

The Voluntary Assisted Dying Act 2021 (Qld) was passed on 16 September 2021. The commencement of the Act is in two stages: Part 8 and s 153 (the establishment and functions of the Dying Review Board) six months after 23 September 2021 (the date of assent), and the remaining provisions on 1 January 2023.
Similar to the New South Wales provisions, for a person in Queensland to be eligible, the person must meet five criteria: have an eligible condition, have decision-making capacity, be acting voluntarily and without coercion, be at least 18 years of age and fulfil the residency requirements. An eligible condition is a disease, illness or medical condition that is advanced, progressive, expected to cause death within 12 months and causes suffering that the person considers intolerable.

Victoria

The Voluntary Assisted Dying Act 2017 (“the Act”) commenced on 19 June 2019. Victoria was the first state to pass such legislation.

A person may only access VAD if the following conditions are met:

  • The person is over the age of 18 years.
  • The person is an Australian citizen and ordinarily resident in Victoria for at least a year when making his or her request for VAD.
  • The person is diagnosed with at least one disease, illness or medical condition that is incurable, is advanced, progressive and will cause death within six months, and is causing suffering to the person that cannot be relieved in a manner the person considers tolerable.
  • A person with a neurodegenerative disease, illness or medical condition is eligible for VAD if death is expected within a year of making the first request for VAD.
  • The person must have decision making capacity in relation to VAD.

The person must make a request for VAD. A doctor cannot initiate discussion with the person about, or suggest, VAD to the person. The request can be withdrawn at any time. The person’s registered medical practitioner must then accept or reject the request. The rejection can be based on conscientious objection to VAD or the doctor’s unavailability to perform the required duties. The doctor can also seek a specialist’s opinion to assess eligibility for VAD.

If assessed as eligible for VAD the person may make a written declaration requesting access to VAD, which must be witnessed.

A doctor must then review the person’s request for VAD, and if approved, the doctor can request the Secretary of the Department of Health and Human Services to issue a VAD permit. The person can self-administer or have a doctor administer the poison, controlled substance, or drug of dependence.

The request for the administration by a doctor of the poison, controlled substance, or drug of dependance, must be witnessed by an independent person. The doctor must also certify that the person was incapable of self-administering the drug, controlled substance, or drug dependence.

The person or an agent of the person, or a person who VCAT considers has an interest in the medical treatment and care of the person can apply to VCAT for the review of a decision by a doctor that the person is or is not resident in Victoria for at least 12 months before the first request, or that the person does or does not have decision making capacity.

There are various protections for doctors and medical professionals who act in good faith and in compliance with the Act, but failure to do so can be an offence or professional misconduct.

VAD is also monitored and reviewed by the Voluntary Assisted Dying Review Board.

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