In November 2023, the Voluntary Assisted Dying Act 2022 (the “Act”) came into effect allowing some people or “eligible persons” under the Act to access voluntary assisted dying.

What is voluntary assisted dying?

Voluntary assisted dying allows eligible persons to request medical assistance to end their life voluntarily and legally. Voluntary assisted dying is not a form of suicide.

Voluntary assisted dying is defined as “the administration of a voluntary assisted dying substance and includes steps reasonably related to the administration” (Schedule 1 of the Act).

The administration of a lethal substance is one of the last steps in the voluntary assisted dying process. To get to this stage, there is a strict eligibility criteria which must be met and several steps which must first be taken.

So, who is an eligible person?

To access voluntary assisted dying, a person must meet the eligibility criteria which is set out below. A person must:

1. Be an adult (18 years old) who:
   1. Is an Australian citizen; or
   2. Is a permanent resident of Australia; or,
   3. has been a resident in Australia for at least 3 continuous years.
2. Be a resident of NSW for at least 12 months.
3. Have at least one disease, illness, or medical condition that:
   1. Is advanced, progressive and will cause death, and
   2. Will, on the balance of probabilities, cause death within a period of 6 months (12 months for a condition that is neurodegenerative, for example, motor neurone disease); and
   3. Is causing suffering that cannot be relieved in a way that the person considers tolerable.
4. Have decision-making capacity. This is defined under section 6 of the Act which sets out a number of factors, for example, that the person can understand and remember the information or advice given to them about voluntary assisted dying.
5. Be acting voluntarily.
6. Not be acting under any pressure or duress.
7. Have an enduring request for voluntary assisted dying.

If a person only has a disability, dementia, or a mental health impairment, they will not be eligible for voluntary assisted dying.

If someone is an eligible person, what is the process involved with voluntary assisted dying?

There are 11 steps in the voluntary assisted dying process. Below is a summary of what will occur at each step.

1. The First Request: The patient makes a clear and unambiguous request for voluntary assisted dying to a doctor. No one can ask to undergo voluntary assisted dying on behalf of a patient. Only the patient can ask for medical assistance to die.
2. The First Assessment: If the doctor accepts the first request, they will coordinate the voluntary assisted dying process and assess the patient’s eligibility for voluntary assisted dying.
3. Consulting Assessment: After the first assessment, another doctor will provide a second opinion on whether the patient is eligible for voluntary assisted dying.
4. Written Declaration: If the patient is determined by both doctors to be eligible for voluntary assisted dying, they will write a declaration.
5. Final Request: This final request makes it clear whether the patient would still like to access voluntary assisted dying.
6. Final Review: A final review is then undertaken by the first doctor.
7. Administration decision: At this stage, the patient decides whether they would like to take the voluntary assisted dying substance by self-administration (taking the substance themselves) or by practitioner administration (a nurse or doctor will administer the substance to them).
8. Medication Authorisation: The patient’s doctor will apply for the medication and the Voluntary Assisted Dying Board will need to grant approval.
9. Medication prescription: The voluntary assisted dying medication is prescribed.
10. Take medication: The medication is taken or given to the patient, depending on their choice.
11. Notification of death: After the patient’s death, the relevant forms are completed.

The voluntary assisted dying process can be stopped at any time. Further, if at any stage throughout the process, the person permanently loses the capacity to make decisions in relation to voluntary assisted dying, i.e. they no longer have decision-making capacity, they are no longer eligible for voluntary assisted dying.

You can read more information about this process here: https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/process.aspx

If I am not happy with a decision, can I review it?

The Supreme Court of NSW can review decisions made at various stages of the process.

Can I make a direction for voluntary assisted dying in my appointment of enduring guardian?

No. Voluntary assisted dying cannot be prescribed through an enduring guardian or a power of attorney. The request for voluntary assisted dying can only be made by the patient, no one can request that it take place on their behalf.

Contact us

The Act has only recently come into force, and it is in the early stages of implementation.

If voluntary assisted dying is something you are considering, it is important to obtain current medical and legal advice about this issue. Uther Webster and Evans has extensive expertise in succession and estate matters and can provide you with advice and guidance. Please contact our offices on (02) 9290 1177.

Disclaimer: The contents of this article is for informational purposes only and does not constitute legal advice, nor is the contents of this article intended to be a substitute for legal advice or to be relied upon as such.