Should voluntary assisted dying be legalised in NSW?

8th Jul 2021

Voluntary assisted dying (VAD) is the next controversial topic that could come up for legislation in NSW, after Victoria became the first state in Australia to legalise it.

The Victorian Voluntary Assisted Dying Act 2017 (the Act) came into effect on 19 June 2019. Under this Act, Victorians who are at the end of their life and are suffering from an incurable advanced disease or medical condition can now request access to VAD.

Western Australia has implemented similar legislation this month and Tasmania will follow suit, having passed relevant legislation in March 2021.

Victorian eligibility criteria for VAD

After initiating the process themselves, Victorians must pass strict eligibility criteria before being assessed by two medical practitioners, who would then need to confirm that the patient’s condition will cause death within 12 months.

Mental illness or disability are not grounds for access to VAD, and the Act applies only to people who have lived in Victoria for at least 12 months.

Is NSW likely to introduce a safe legal framework for VAD?

While there is currently no such law in NSW, there is a push for a plebiscite to be held alongside the next election so that voters can decide on whether to legalise VAD. Several NSW politicians are strong advocates for a public vote on this controversial matter.

However, after the political battle over decriminalising abortion, Premier Gladys Berejiklian seems determined that there will be no more conscience votes in this term of parliament.

Documenting preferences for care when nearing end of life

As a specialist in wills, I meet many people who are suffering from terrible pain and want to know whether they can insert a clause outlining their request not to be given life-saving medical treatment. Since a will operates only upon death, any clause relating to loss of capacity would be ineffective.

However, a person can sign an enduring power of attorney which allows them to appoint somebody else – usually a spouse or an adult child – to make financial decisions on their behalf.

There is also an enduring guardian document, also called a living will, which allows a person to appoint someone else to make health decisions on their behalf when necessary and to choose where they should live.

NSW residents can request no artificial life support

The enduring guardianship document can have an ‘advanced care directive’. This demonstrates a desire to turn off life support if a person is suffering from a terminal or irreversible illness, is permanently unconscious, is in a persistent vegetative state, or is so seriously ill that there is no real chance of recovery without artificial life-sustaining measures.

The guardian has the authority to direct the medical practitioner to such a request, which increases the chances of life support being turned off. This is not euthanasia, but is currently the closest thing to it under NSW laws. It is ultimately up to medical practitioners to make the decision.

Legal advice may be useful when appointing a guardian. In some cases, it may be best to appoint a single guardian; however, in the case of family members being appointed, it may be a better choice to appoint two or three adult children as guardians and instruct that no decision can be made without signatures from them all.

This is an edited version of an article that was first published on Stacks Law.

Joshua Crowther is a lawyer in the Taree office of Stacks Law Firm and an accredited specialist in wills and estates by the Law Society of NSW. He joined Stacks in 2011 and is now the practice manager of a very busy wills and estates practice. He holds a Masters of Applied Law (Wills and Estates) from the College of Law in addition to his Bachelor of Laws (First Class Honours) and a Bachelor of Arts Communications (Honours). Josh deals with both simple and complex estate matters. He is well-versed in making complex applications to the Supreme Court regarding contentious wills (eg. when people have limited capacity to make a will) and has made dozens of applications to the Supreme Court for statutory wills. Josh handles family provision matters, acting for executors when defending wills, or acting for claimants against wills. He conducts mediations and hearings in Sydney on a regular basis.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: NSW Wills and estates voluntary assisted dying