The people of New South Wales (NSW), have had access to voluntary assisted dying as an end-of-life care option under the Voluntary Assisted Dying Act 2022 from the 28th of November 2023.
Voluntary assisted dying (VAD) enables eligible individuals to request medical assistance to end their life. To be eligible, the person must be in the advanced stages of a disease, illness, or medical condition and must be experiencing unbearable suffering.
In NSW, eligible residents have the legal right to choose how life-ending drugs are administered, and they will experience a shorter wait time than in other jurisdictions. The legislation requires two requests to two practitioners, including one in writing.
Eligibility
To be eligible to access voluntary assisted dying, a person must meet specific criteria.
- Firstly, they must be an adult of at least 18 years of age who is an Australian citizen, a permanent resident of Australia or has been a resident in Australia for at least three continuous years.
- Secondly, they should have lived in NSW for at least 12 months, except for the Voluntary Assisted Dying Board, which considers a residency exemption on compassionate grounds for a person with a significant connection to NSW.
- Thirdly, the person must have at least one medical condition, illness, or disease that is advanced and progressive, that will likely cause their death within six months (or within 12 months for neurodegenerative diseases like motor neurone disease) and is causing them unbearable suffering that cannot be relieved in a way that the person considers tolerable.
- Fourthly, they must be able to make decisions concerning voluntary assisted dying.
- Fifthly, the person must be acting voluntarily and without any pressure or coercion, and
- lastly, they must have an enduring request for access to voluntary assisted dying.
People can only access voluntary assisted dying in NSW if they meet all the eligibility criteria and follow the process outlined in the law, including getting approval from the NSW Voluntary Assisted Dying Board.
Other Jurisdictions
NSW joins Victoria, Western Australia, Tasmania, Queensland, and South Australia in granting eligible residents the right to die. The ACT and Northern Territory are both considering legalising euthanasia.
One significant difference is the cooling-off period of five days in NSW, which is shorter compared to other states. In all other states except Tasmania, the wait time is nine days, whereas in Tasmania, it is seven days. Legal experts in end-of-life care have praised the shorter time frame as a positive for NSW patients, introduced following experiences in other states.
VAD is legal in the Netherlands, Belgium, Switzerland, Luxembourg, Germany, Canada, Columbia and the USA (where in ten states, different forms of VAD are legal). However, the eligibility and administration criteria can differ significantly between jurisdictions, explaining the use of different terminologies. For example, while the term ‘voluntary assisted dying’ is commonly used in Australia, in Canada, it is referred to as ‘medical assisted dying’. In Oregon as ‘physician-assisted suicide’ or ‘euthanasia’ in the Netherlands and Belgium.
Most definitions follow the original meaning of euthanasia, which comes from the classical Greek term meaning ‘good death’, categorised as voluntary, non-voluntary, or involuntary. Non-voluntary means that consent is not available, for example, assisted dying of newborns, children or comatose persons, following medical determination of a hopeless, intolerable or terminal condition. Involuntary assisted dying is illegal in Australia and considered to be murder.
Differences
The laws regarding voluntary assisted dying (VAD) in Australia are pretty similar overall, with the ‘End of Life Directions for Aged Care’ (ELDAC) program highlighting some significant differences. In Victoria and South Australia, medical professionals cannot initiate discussions around VAD with patients but can only provide information if requested. Medical professionals in Western Australia, Tasmania, Queensland, and NSW can start conversations about VAD but must also provide information about other treatment and palliative care options.
While institutions and healthcare professionals can choose not to participate in VAD, in most jurisdictions, such as South Australia, Queensland, and NSW, aged care facilities are required to ensure that patients or residents can access VAD if they wish to do so.
One significant difference between the states is the time requirements for eligibility. In Queensland, the legislation provides the disease or medical condition to cause death within 12 months, while in all other states, it must expect to cause death within six months or 12 months in the case of a neurodegenerative disease.
Dementia & Alzheimer’s
This time-sensitive eligibility criteria can be problematic, as the application and assessment process can be lengthy, and some applicants may pass away before their request is processed. Other places have seen public debate on the prolonged suffering of Parkinson’s or Alzheimer’s patients lead to changes in eligibility criteria.
The Act says that a person is not eligible for voluntary assisted dying just because they have a disability, dementia or a mental health impairment. In NSW, individuals with disabilities, dementia, or mental impairment (as defined by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)) are only eligible for VAD if they have a terminal illness leading to death within the required timeframe.
Dementia patients in NSW are prohibited from applying for VAD, as the legislation does not define dementia as a terminal illness that causes intolerable suffering. Dementia Australia, an advocacy group, has protested this exclusion, citing the 2008 UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’), which recognises the legal capacity of people with cognitive impairment and dementia.
According to the VAD eligibility criteria, dementia or related diseases like Alzheimer’s do not meet the definition of terminal illnesses, making them ineligible. However, if a dementia patient has another terminal illness, they may make a VAD request while still mentally capable. It is essential for the legislation to clarify what constitutes mental ‘capacity’ and to do so in close consultation with those who suffer from neurodegenerative diseases such as dementia and Alzheimer’s.
Challenges
The responsibility of assessing whether a disease is incurable, progressive, and advanced enough for VAD eligibility within the expected timeframe can be challenging for medical professionals. It is crucial to recognise that conditions progress differently in different people, and rigid time limits could lead to some patients continuing to suffer until they are close enough to death to meet the eligibility criteria.
It is essential to clarify what happens when a person has a curable disease but refuses treatment. For example, if they do not want to have a cancer-infested leg amputated, causing the disease to become incurable. The current NSW VAD legislation does not address this issue. However, Western Australia has an exception where a person with a curable or treatable condition may be able to refuse treatment and become eligible for VAD because they have a condition that will cause death after having refused treatment.
A review of all VAD legislation between two and five years after enactment on the effectiveness of the law will lead to more streamlined rules across Australia. Hopefully, these reviews will result in a more practical approach to the eligibility criteria and medical assessment processes.
Conclusion
The implementation of VAD in practice has just begun in NSW. The discussion about the application and potential misuse of VAD will likely persist. The critical point of concern is whether the expansion of VAD will occur in various ways.
Assisted dying is legally allowed for all age groups in the Netherlands, including infants and those above one year of age. Individuals suffering from severe depression and dementia can also access assisted dying, provided that they made the request when they were competent. The Dutch parliament implemented these changes after extensive public debates, during which the ‘slippery slope’ argument was a central concern in the discussions. The Netherlands’ adoption of such a tolerant approach to assisted dying resulted from careful consideration and thorough public deliberation.