By Marc De Leeuw -
Snapshot
- New South Wales is the last State to enact voluntary assisted dying legislation.
- The legal criteria for what constitutes ‘mental capacity’ and ‘endured suffering’ must be clarified for dementia and Alzheimer sufferers.
- The current time limitation for requesting assisted dying is too rigid. A more holistic and less arbitrary approach is needed.
- The current age restriction to those above 18 years is arbitrary. People under 18 years who are terminally ill, suffer from intolerable and hopeless conditions should, with the consent of their parents and medical practitioners, be able to choose a ‘good death’.
On 19 May 2022, the New South Wales Parliament passed the Voluntary Assisted Dying Act 2022 (‘VAD Act’) bringing NSW in line with Victoria, Western Australia, Tasmania, South Australia and Queensland where — over the last six years — voluntary assisted dying (‘VAD’) legislation has been passed. Of all the States, NSW is the last to legislate and activate voluntary assisted dying practices. Processes are underway to legislate voluntary assisted dying in the Northern Territory and the ACT, where offering assisted dying remains illegal.
In NSW, VAD is defined as ‘the administration of a voluntary assisted dying substance and includes steps reasonably related to the administration’. After the implementation period ends on 28 November 2023, all NSW residents can legally request assistance from a health practitioner to end their life. The VAD request must be voluntary and made by a competent person with a terminal illness. Medical assistance can mean one of two things: the person takes a substance to end their life (in the presence of a medical practitioner or nurse), or medication is administrated to the person by a licensed medical doctor (or registered nurse).
Eligibility criteria
To be eligible for VAD, the person making the VAD request must be over the age of 18, an Australian citizen or resident (for at least three years), and have a medical condition which is advanced, progressive and will — on the ‘balance of probabilities’ — cause death within six months (or within 12 months if it concerns a neurodegenerative condition). The disease should cause suffering ‘that cannot be relieved in a way the person considers tolerable’ (VAD Act, s 16(d)(iii)). The requesting person must act voluntarily and without pressure or duress. To access VAD, a person must undergo a substantive assessment process which involves making and confirming the request three times. An assessment of eligibility also needs to be carried out by at least two independent medical practitioners. If a VAD request has been rejected and a review of the decision is requested, it is subject to a decision by the NSW Supreme Court. A VAD request can be withdrawn at any time.
