In a landmark move, New South Wales has recently become the last state in Australia to provide individuals with the option of Voluntary Assisted Dying (VAD). This significant development reflects years of work by campaigners and a wider community debate about end-of-life choices and the right to die with dignity.
This article provides more detail on the introduction of VAD in NSW, which is available as of November 28, 2023, in particular the criteria which govern this particularly sensitive and complex area of health management.
More detail on the new Voluntary Assisted Dying law in NSW
In order to take advantage of the VAD law in NSW, the essential criteria are as follows:
- A person must be diagnosed with at least one disease, illness or medical condition that:
- is advanced, progressive and – on the balance of probabilities – will cause death within six months, or 12 months for neurodegenerative conditions, and;
- is causing suffering that cannot be relieved in a manner the person finds tolerable.
- An eligible individual must also have:
- decision-making capacity in relation to VAD, meaning they comprehend and remember everything related to a VAD decision and its consequences, and are able to clearly and coherently communicate their decision;
- be acting voluntarily and not because of pressure or duress from another person;
- be aged 18 or over;
- be an Australian citizen or permanent resident who has lived in NSW for at least 12 months;
- have an enduring request for VAD.
In addition, the VAD Act emphasises the importance of an individual acting with informed consent, meaning they are fully informed about their medical condition, prognosis, and the potential implications of choosing this method of death. This step includes exploring alternative options such as palliative care.
Once eligibility is established, how does a person access VAD?
The Act mandates a comprehensive medical assessment by two medical practitioners, including at least one with expertise in the relevant condition. This process involves the eligible person making a first request to a medical practitioner, of their own volition and not as part of an advanced health directive or through an enduring power of attorney. This first request must be decided within two days, after which the practitioner will refer the individual to a second assessor.
If the second assessment confirms eligibility for VAD, a second request to access the law must be made in front of two independent witnesses. A third request is then made to the co-ordinating practitioner (generally the doctor who received the first request) – with a period of at least five days between the first and last request – where a doctor will check the individual is still eligible as a candidate for VAD. This final request demonstrates the person’s wish to proceed represents a sustained and informed desire. A person may change their mind about VAD at any stage of this process.
An individual who wishes to access VAD must retain capacity to make an informed decision throughout the steps described above. Loss of capacity between initially making the decision and a final request means a person cannot go forward with VAD. Likewise, a person who it is suspected to be suffering from dementia, depression or some other impairment of their reasoning process, will be referred for specialist help before being able to undertake the VAD steps.
Proceeding to the VAD process
Once a person decides to proceed with VAD and passes all eligibility tests, they may self-administer the drug or have a practitioner do so with the guidance of the co-ordinating medical practitioner.
Only medical practitioners trained and registered to provide this service can administer the medication, and there are specific guidelines to ensure a peaceful and dignified process. A doctor acting as a coordinating or consulting practitioner must have at least one years’ experience if they are a specialist, or 10 years’ experience as a general practitioner (GP). An administering practitioner must be a specialist, a GP with at least five years’ experience, an overseas-trained specialist with the appropriate registration, or a nurse practitioner.
There is mandatory training for health professionals involved in a VAD decision which covers their legal obligations, the strict eligibility criteria for the patient and how a practitioner assesses whether an individual meets those criteria, including identifying any signs of pressure, duress or coercion by others towards the requesting individual.
Need more information? Discuss your case with our understanding team
The introduction of Voluntary Assisted Dying in NSW represents a significant step in the evolution of end-of-life care, acknowledging the complex and deeply personal nature of the choices individuals face when confronted with unbearable suffering. The criteria established by the Voluntary Assisted Dying Act 2021 attempts to strike a delicate balance between compassion for those in pain and the need for strict safeguards to prevent abuse. If any of the information offered in this article raises questions or concerns for you, contact our professional team at Felicio Law Firm and we can provide more detail on the steps involved for you and your family.