(VIC) End State Residency Requirements to Access Voluntary Assisted Dying

Author: Christopher Noonan | Publish date: 02/08/24

Problem Identification: 

In VIC, to be eligible to receive Voluntary Assisted Dying (VAD), one must have been a resident of the state for at least 12 months.

Victoria’s Voluntary Assisted Dying Act states that eligible patients must, ‘at the time of making a first request, have been ordinarily resident in Victoria for at least 12 months’. 

This means that patients who have been ordinarily resident in Victoria for less than 12 months, and who are unable to return to their home-state, cannot receive VAD. It also places an additional administrative burden on patients in Victoria to prove their residency.

Context: 

VAD allows terminally ill patients to have a medical professional assist them in ending their life. VAD was legalized in Victoria in 2017 by the Voluntary Assisted Dying Act (VADA). VAD is currently legal in all other states, and will likely be available in both territories sometime soon. 

The mandatory 12 month residency requirement was initially introduced to stop residents of other countries, or states, traveling to Victoria specifically to receive VAD, a phenomenon also known as death tourism. 

These requirements have faced criticism. There are reports of patients who, in the process of visiting one state, are diagnosed with a terminal illness, and become too ill to travel back to their home state. The residency requirement then stops these patients from receiving VAD. This requirement also constitutes a further administrative burden for patients hoping to receive VAD, which has already been criticized as being insufficiently accessible to patients. 

Experts including Waller, Del Villar, White and Willmott, as well as organizations such as  Dying with Dignity Victoria, Go Gentle Australia, and Voluntary Assisted Dying Australia and New Zealand, have argued that these requirements are unnecessary and should be removed. They have argued that Victoria already requires eligible patients to be Australian citizens/permanent residents, preventing international death tourism. Furthermore, they claim the legality of VAD in all Australian states removes the potential for domestic death-tourism. 

There is precedent for removing state residency requirements. The American states of Vermont and Oregon have repealed their state-residency requirements for VAD, and the Ministers for Health in Western Australia and Queensland are both open to reviewing these requirements in Australia. 

Solution Identification: 

Omit section (9)(1)(b)(iii) of the Victorian Voluntary Assisted Dying Act 2017 (Cth), which states that patients be residents of Victoria for 12 months before being eligible for VAD. 

This could allow patients who have been in Victoria for under 12 months, and who are unable to return to their home-state, to receive VAD. It could also remove unnecessary administrative hurdles for  patients in Victoria to receive VAD.

Advice:

The Victorian Minister for Health should seek to amend the Victorian Voluntary Assisted Dying Act 2017, to remove s (9)(1)(b)(iii) at the next opportunity.

---

Public Support: 

1. Dr Katrine Del Villar

2. Katherine Waller

3. Dr Aidan Ricciardo

4. Dying with Dignity Victoria

5. Go Gentle Australia

6. Voluntary Assisted Dying Australia and New Zealand 

Where to go to learn more: 

1. Waller, K., Del Villar, K., Willmott, L. and White, B.P., 2023. Voluntary assisted dying in Australia: a comparative and critical analysis of state laws. https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2023/12/Issue-464-10-Waller-et-al.pdf 

2. Go Gentle Australia, Submission to the Centre For Evaluation and Research Evidence at the Victorian Department of Health (Feb 2024). https://assets.nationbuilder.com/gogentleaustralia/pages/3000/attachments/original/1708908681/Final_-_GGA_submission_to_Vic_Review_-_Feb23.pdf?1708908681

3. Keane Bourke, “Voluntary assisted dying almost universally available in Australia, but residency requirements block some from accessing it” (Jul 2024). https://www.abc.net.au/news/2024-07-12/residency-requirements-blocking-access-to-vad/104050352 

Human Perspective:

Marion’s Story: Marion lived in Western Australia for most of her life and then retired to Tasmania. While visiting WA, she was diagnosed with incurable lung cancer. She became too ill to travel back to Tasmania, and wanted to spend her final days with her family. Because she had not been living in Western Australia for 12 months, she was not eligible for VAD (even though she likely would have been if she was able to return to Tasmania). This meant that she did not have autonomy during her final days alive, which led to devastating mental health issues. ‘It was extremely harrowing, emotionally distressing and left me feeling very angry which has resulted in me suffering anxiety attacks for which I am now under medication’, she told the ABC through her lawyer. ‘My life should not be left in the hands of legislators as this decision should be entirely mine.’

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement: 

N/a.

Support 

If your organisation would like to add your support to this paper, or suggest amendments, please email Info@foreaustralia.com. 

Reference list: 

Cohen, I. G., Adashi, E. Y., & Pope, T. M. (2022). Traveling Across States for Prohibited Treatments: Medical Aid in Dying and Looming Battles Over Abortion. Journal of General Internal Medicine, 38. https://doi.org/10.1007/s11606-022-07898-3

Directorate, J. and C. S. (2023, February 7). Voluntary assisted dying laws in the ACT. Www.justice.act.gov.au. https://www.justice.act.gov.au/justice-programs-and-initiatives/voluntary-assisted-dying-laws-in-the-act

Go Gentle Australia. (2024). Submission to the Victorian review of the operation of the Voluntary Assisted Dying Act 2017.https://assets.nationbuilder.com/gogentleaustralia/pages/3000/attachments/original/1708908681/Final_-_GGA_submission_to_Vic_Review_-_Feb23.pdf?1708908681

K, W., K, D. V., L, W., & BP, W. (2023). Voluntary assisted dying in Australia: a comparative and critical analysis of state laws. UNSW Law Journal , 46(4).

Keane, B. (2024, July 11). Voluntary assisted dying almost universally available in Australia, but residency requirements block some from accessing it. ABC News. https://www.abc.net.au/news/2024-07-12/residency-requirements-blocking-access-to-vad/104050352

Submission to the Centre for Evaluation and Research Evidence at the Victorian Department of Health. (2024). Dying with Dignity Victoria . https://www.dwdv.org.au/wp-content/uploads/2024/02/DWDV-submission-to-Victorian-VAD-5-Year-Review.pdf

Voluntary Assisted Dying Act, 2017 (VIC). 

Voluntary assisted dying (VAD) in the Northern Territory | Have Your Say Northern Territory. (n.d.). Haveyoursay.nt.gov.au. https://haveyoursay.nt.gov.au/vad

Voluntary Assisted Dying Australia and New Zealand. (2024). Submission to Review of the operation of the Voluntary Assisted Dying Act 2017 (Victoria). https://www.vadanz.com.au/content/uploads/VIC-VAD-Review-VADANZ-submission.pdf

Voluntary Assisted Dying Review Board. (2020). Report of operations. Safer Care Victoria .

White, B., Jeanneret, R., Close, E., & Willmott, L. (2023). Access to voluntary assisted dying in Victoria: a qualitative study of family caregivers’ perceptions of barriers and facilitators. The Medical Journal of Australia, 219(5). https://doi.org/10.5694/mja2.52004