VOLUNTARY ASSISTED DYING LEGISLATION IN AUSTRALIA AND OVERSEAS
The Western Australian Voluntary Assisted Dying Bill passed into law on 10 December 2019. The Act came into effect on 1 July 2021. You can view the WA Voluntary Assisted Dying Act 2019 here.
GENERAL BACKGROUND ON VOLUNTARY ASSISTED DYING LEGISLATION
Voluntary assisted dying (VAD) was briefly permitted in the Northern Territory (1996) before the law was repealed by the Federal Government in 1997. Over the two decades since the Northern Territory law was overturned, there were over thirty failed attempts to pass another assisted dying law in Australia. Finally in November 2017 the Victorian Parliament made history by passing the Voluntary Assisted Dying Act 2017. Since then, Western Australia (2019), Tasmania (2021), South Australia (2021), Queensland (2021), New South Wales (2022), and the Australian Capital Territory (2024) have also passed VAD laws, with the legislation becoming effective after an implementation period of approximately 18 months in each of those jurisdictions.
In the Northern Territory, progress has been slow. The Restoring Territory Rights Act 2022 passed in December 2022, allowing the NT to consider legalising VAD legislation once again. A community consultation process began in October 2023, with an expert panel being appointed to consider the submissions from that consultation. The panel was due to provide its report to the NT government in July 2024, but at that point, because of a change in government, the trail seems to have gone cold.
At the time of writing in 2024, voluntary assisted dying, (referred to as ’in some jurisdictions as voluntary euthanasia’) is legal in 30 jurisdictions around the world. It is legal in Switzerland (Criminal Code 1942), The Netherlands (2002), Belgium (2002), Luxembourg (2009), Germany (2015), Colombia (2015 Court Decision), Canada (2016), Quebec, Australia (including Victoria 2017, Western Australia 2019, Tasmania 2021, South Australia 2021, Queensland 2021), NSW (2022), and the ACT (2024)), New Zealand (2020), Spain (2021), Austria (2021), Portugal (2023) and in 11 jurisdictions in the US - Oregon (1997), Washington (2009), Montana (2010 Court Decision), Vermont (2013), California (2016), Colorado (2016), Washington DC (2016), Hawaii (2018), New Jersey (2019), Maine (2019) and New Mexico (2021).
VAD laws are also currently under consideration in the United Kingdom and the Republic of Ireland.
ELIGIBILITY REQUIREMENTS, METHODS OF ADMINISTRATION AND LEGAL FRAMEWORKS
There are differences between the various laws regarding the eligibility criteria, the method of administration of the lethal medication and the legal framework, or process.
The American laws (on which the Australian laws are based) are considered the most restrictive, because the individual has to be suffering from a terminal illness, with a prognosis (on the balance of probabilities) of less than six months to live.
The European laws do not restrict access based on a terminal illness or a time-to-death criterion. Instead the eligibility and safeguards are generally based on a model requiring ‘due care’ on the part of the doctor assessing and assisting a patient to die and the person seeking to access VAD must be experiencing something equivalent to ‘unbearable and irremediable suffering’ to qualify. The American laws allow self-administration only, whereas under the European, Canadian and Australian models, both self-administration and practitioner-administration are permitted. In Western Australia over 90% of those qualifying for VAD chose practitioner administration in the year from 1st July 2023 to 30th June 2024.
The laws passed in Australia to date generally follow the American model, but the prognosis of time before death does vary. In Victoria, Western Australia, Tasmania, South Australia and NSW it is six months except in the case of neurodegenerative conditions, for which it is 12 months. In Queensland the VAD law requires a prognosis of less than 12 months in all cases. A table (prepared by Go Gentle Australia) comparing the details of the Australian laws may be found here - A Comparative Table of Australian VAD laws.
Please note that the above is a summary and sets out only generalities.
It is not possible to provide a detailed comparison of the legal frameworks, safeguards and procedures involved in the various assisted dying models around the world. However, according to the Victorian Committee, which travelled to many of these jurisdictions, although the models differ, ‘what they all have in common is robust regulatory frameworks that focus on transparency, patient-centred care and choice.’ Both the Victorian Committee and the Western Australia Joint Select Committee found no evidence of so-called institutional corrosion or the often cited ‘slippery slope’.
You can view the Voluntary Assisted Dying Act 2019 here.
The Act includes the following eligibility criteria:
(a) the person has reached 18 years of age;
(b) the person —
(i) is an Australian citizen or permanent resident; and
(ii) at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months;
(c) the person is diagnosed with at least 1 disease, illness or medical condition that —
(i) is advanced, progressive and will cause death; and
(ii) will, on the balance of probabilities, cause death within a period of 6 months or, in the case of a disease, illness or medical condition that is neurodegenerative, within a period of 12 months; and
(iii) is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable;
(d) the person has decision-making capacity in relation to voluntary assisted dying;
(e) the person is acting voluntarily and without coercion;
(f) the person’s request for access to voluntary assisted dying is enduring.
More information about the above eligibility requirements and the VAD process can be found in ‘Resources’ under the tab ‘Workshops’.
As at December 2024, voluntary assisted dying pursuant to the WA VAD Act has been available for three and a half years. The comprehensive annual reports of the VAD Board demonstrate that the law has been effective in alleviating the suffering of many Western Australians, and there is no evidence of abuse or overreach.
The VAD Board annual reports also document ways in which the Act could and should be improved. The VAD annual reports can be found in Resources/VAD Board Reports.
Review: DWDWA had high hopes that the two-year review mandated by section 164 of the Act (Review) would be rigorous, far-reaching, evidence-based and meaningful. Sadly, it was none of those things.
The Review Panel’s Report and DWDWA’s assessment of the Review Report can be found in Resources/ Review.
In consultation with its members and supporters, DWDWA too has come to the conclusion that the Act should be amended: see Resources/VAD Stage 2 Review for DWDWA's proposed amendments to the VAD Act.