Wills and voluntary assisted dying (VAD) law in NSW
On 19 May 2022, NSW became the last state in Australia to pass voluntary assisted dying legislation. It will not come into force until late in 2023, as there is an 18-month implementation period to establish how it will work and to train health practitioners who are willing to be involved in the process.
Eligibility criteria for voluntary assisted dying in NSW
Voluntary assisted dying legislation has passed the NSW parliament, which will make it legal for some patients with a terminal illness to choose when to end their pain. (Please see Voluntary Assisted Dying Bill 2022.)
It will be available to an adult with decision-making capacity who has an advanced and progressive illness that will cause death, likely within six months, or 12 months for neurodegenerative conditions.
Other eligibility criteria include that the patient is suffering, their choice is voluntary and their decision is enduring.
Two senior doctors who have completed mandatory training will each conduct a rigorous eligibility assessment. A voluntary assisted dying board will be established to ensure the system is operating safely.
Penalties under voluntary assisted dying legislation for applying pressure or duress
The legislation includes stiff penalties of up to seven years in jail for anyone applying pressure or duress to get a sick person to apply for VAD. This includes coercion, intimidation, threats, elder abuse and undue influence.
Family and any beneficiary of the patient’s will cannot be involved in the mechanics of the process and must not unduly influence the decision of the patient to proceed with ending their life.
Under the law the patient is required to sign a form declaring they have not been pressured by family or someone who is a beneficiary of their will to apply for VAD.
Who can be involved in the process?
Anyone considering ending their lives through the new euthanasia laws in NSW should consult a legal expert on wills to determine whether provisions in the VAD law may have a bearing on the way their will is drawn up.
It may be that the patient wants a family member, a loved one whom they trust or someone who is close to them to be involved in the process of ending their lives, but under the NSW voluntary assisted dying law that person may be ineligible.
This includes medical practitioners, psychologists, interpreters, even a person who acts as a witness to the patient’s signing of a written declaration that they wish to proceed with ending their life.
Assisted dying legislation in other states
Similar VAD laws have been operating in Victoria and Western Australia for a couple of years. Both states found training was essential for both the medical practitioners willing to participate in the process and for the role played by other health professionals in supporting patients, families and doctors.
In WA, 50 terminally ill people chose to use the state’s voluntary assisted dying law in its first four months. That number is likely to be higher in NSW, but the 18-month delay in enacting the law means it is unlikely to help patients who are terminally ill now.
The Northern Territory and Australian Capital Territory were barred from introducing VAD laws by the Howard government in 1997.
With a new Labor government in Canberra and a more progressive senate being elected, the ban on the territories introducing VAD may soon be overturned.