NSW has become the last state to legalise voluntary assisted dying (VAD) after a landmark bill passed the lower house yesterday morning. The bill will allow people with a terminal diagnosis to access voluntary assisted dying, subject to a set of legislated safeguards.
The passage of the bill saw a slew of amendments proposed by its opponents in the upper house. The filibuster attempt included a failed amendment to allow aged care facilities to ban residents from accessing voluntary assisted dying.
The bill was introduced to parliament by independent MP Alex Greenwich and co-sponsored by 28 MPs and MLCs, including independents and representatives from all parties. Both major parties allowed a conscience vote, with both party leaders, Dominic Perrottet and Chris Minns, having indicated their opposition to the legislation in 2021.
Labor MLC Adam Searle moved the second reading of the Bill in the Legislative Council, describing the bill as a “collective endeavour” that enjoyed broad, cross-party support.
Searle told the upper house that: “Whereas on earlier occasions New South Wales would have been a national leader, today every other State has already enacted voluntary assisted dying laws. In Western Australia and Victoria those laws are safely in operation today. New South Wales is a laggard in providing this compassionate choice for its residents and citizens.”
Who will the laws apply to?
The legislation contains a set of restrictions on who is eligible to access VAD.
VAD is only available to people who have been diagnosed with at least one condition that is advanced, progressive, and will cause death, either within six months, or twelve months if the condition is neurodegenerative. The condition must also be impossible to sufficiently relieve such that the patient can tolerate it.
Patients must have the requisite decision-making capacity, which means that they must be able to comprehend the implications of a voluntary assisted dying decision. As a result, patients must not be under duress and must have an ‘enduring’ request for VAD. A disability, dementia or other mental health impairment does not inherently disqualify patients from accessing VAD.
Additionally, patients must be adults who are either Australian citizens, permanent residents, or residents in Australia for at least three continuous years. They must have lived in NSW for at least a year.
What is the process for accessing VAD?
Patients can only access VAD if they have first made a ‘clear and unambiguous’ request for it, at which point they must be assessed as eligible by two medical practitioners.
If the coordinating or consulting practitioner is unsure whether the patient can consent, they must refer the patient to a psychiatrist or other qualified health practitioner.
The patient must then make a written declaration of their request which says that they are making the decision voluntarily and understand their choice. The declaration must be signed in the presence of two witnesses.
After a designated period of five days, a final request can be made by the patient, at which point a final review by the coordinating practitioner is conducted.
At no point are patients obliged to continue with the process if they change their minds.
Patients can choose between self-administering a VAD substance or having it administered by a practitioner. If the patient chooses to self-administer, a contact person is appointed to prepare and supply the VAD substance. A prescription system is used to manage the supply of VAD substances.
The bill provides for the establishment of the Voluntary Assisted Dying Board, which will be tasked with monitoring VAD in NSW, maintaining a list of health practitioners who will assist with VAD, and making decisions about applications for VAD, among other functions. The Board will consist of five members appointed by the Health Minister and Attorney General, two of whom must be medical practitioners.
Notably, the law includes provisions to allow conscientious objectors to refuse to participate in the VAD process.
Also, health care workers are not allowed to initiate discussions with a patient about voluntary assisted dying, or to suggest it, unless it is in the context of a broader discussion of a patient’s treatment and palliative care options and their likely outcomes.
Who supported the bill?
The bill’s passage through parliament, while fraught, was assisted by a broad, cross-party coalition of supporters. The parliamentary working group that investigated assisted dying was led by former Nationals MLC Trevor Khan, who has gone against the grain in his party on other progressive issues such as safe access zones for abortion clinics, with an assortment of MPs supporting and cosponsoring the bill.
The broad support for the bill reflects generally high support for euthanasia among the community, with a Sydney Morning Herald survey in late 2021 finding that almost two-thirds of NSW voters support VAD and only 11 per cent oppose it.
The right to access VAD has been endorsed by organisations like the Dying with Dignity NSW, Go Gentle Australia, the NSW Nurses & Midwives’ Association, the NSW Council on the Aging, ACON and the NSW Council for Civil Liberties.
The campaign for euthanasia has, for decades, centred around questions of bodily autonomy and the ability for terminally ill patients to exercise agency over the circumstances of their death.
Who opposed it?
Opposition to voluntary assisted dying, including within parliament, has often been tied to religious faith, with many religious individuals and organisations viewing euthanasia as undermining the dignity of human life.
Premier Dominic Perrottet and Opposition Leader Chris Minns both voted against the bill in the lower house last year; both politicians are Catholics, along with Labor’s Greg Donnelly, who has been outspoken in his opposition to VAD. Catholic Archbishop of Sydney Anthony Fisher described the legislation as “disturbing” to the media, while the General Synod of the Anglican Church of Australia called for MPs to oppose euthanasia.
Several religious organisations placed heavy emphasis on the demand for religious aged care homes to receive an exemption from having to provide voluntary assisted dying to patients. Catholic Health Australia, Anglicare and HammondCare, all major religious healthcare providers, wrote an open letter arguing against compelling religious organisations to participate in VAD on ethical grounds.
Opposition to religious exemptions pointed to the risk that access to VAD could be restricted geographically if providers could opt out of offering it. However, religious organisations expressed concern that religious providers might move out of the sector altogether if they were forced to provide euthanasia against their beliefs.
Religious communities are not the only opponents to euthanasia, with many disability activists also expressing concern about the ethical implications of legalisation. In particular, many disability activists have characterised euthanasia as failing to grapple with the ongoing poor quality of healthcare and social services for disabled people.
Narratives about ‘dying with dignity’ may also contain problematic narratives about disability and quality of life. In an article in Disabled Honi last year, Robin Eames wrote: “The ‘undignified’ factors that many ‘dying with dignity’ supporters emphasise are more about disability than they are about terminal illness.”
The late disability activist Stella Young wrote of these narratives: “Disability is often framed, in medical terms, as the ultimate disaster and certainly as a deficit.”
How does it compare to voluntary assisted dying laws in other states?
VAD has now been legalised in all Australian states.
Eligibility for VAD is broadly similar across Australia: patients must be adults with advanced fatal medical conditions. In all states except Tasmania, legislation requires that patients are experiencing deterioration and in Tasmania, the legislation requires that the condition is irreversible.
The process of accessing VAD is also common, with all states requiring multiple stages of requests for VADs and the approval of two medical practitioners.
Differences exist in whether practitioners can raise VAD with patients: in Victoria and South Australia, practitioners can only raise it if asked by a patient, while in other states it can be discussed in the context of other care options.
Conscientious objection for providers exists in the legislation of all states, however there are varying requirements about refusing providing information about VAD to patients. In Victoria, SA and Queensland a provider can altogether refuse to provide information about VAD.
While NSW provides for a 5-day cooling off period after the approval of a VAD request, that period varies between states. Victoria adopted a 10-day period, while in SA, there must be at least nine days between the initial and final VAD requests.
Currently, VAD laws have only come into operation in Victoria and WA.
According to the Victorian Voluntary Assisted Dying Review Board, as of June 2021, 597 VAD permits have been issued since the commencement of legalisation in 2019, and 331 people have died through VAD. Of those, the average age was 72 and 83 per cent of patients had a malignant diagnosis.
In WA, where VAD laws came into effect in 2021, 33 people had died as of September 2021.