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

Author: Christopher Noonan | Publish date: 28/08/24

Problem Identification: 

In NSW, to be eligible to receive Voluntary Assisted Dying (VAD), one must have been ordinarily resident in the state for at least 12 months, or be granted an exemption. 

The NSW Voluntary Assisted Dying Act 2022 (NSW) states that a patient is only eligible for VAD if, ‘the person has been ordinarily resident in New South Wales for a period of at least 12 months,’ but that a person, ‘may apply to the Board for an exemption’.

This requirement constitutes further administrative barriers for those patients hoping to receive VAD.

Context: 

VAD allows terminally ill patients to have a medical professional assist them in ending their life. VAD was legalized in New South Wales in 2022 by the Voluntary Assisted Dying Act (VADA). To be eligible for VAD, patients in New South Wales must have been diagnosed with a medical condition that will likely cause death within 6 months, or 12 months for neurodegenerative conditions. Residency requirements were introduced for VAD to stop residents of other countries, or states, traveling specifically to receive VAD, a phenomenon also known as death tourism. VAD is currently legal in all other states, and will likely be available in both territories sometime soon. 

Patients must provide documents to prove their residency in New South Wales, or that prove their eligibility for an exemption. The application process for VAD has been described by some patients as a ‘complicated and drawn out undertaking’, which risks them ‘missing the boat’ by dying before they are able to access VAD. A report by Go Gentle Australia found that around half of the patients who apply for VAD actually receive it, with one in five eligible patients dying before they had received VAD. Proving one’s residency in New South Wales, or applying for a residency exemption, is one step in this application process.

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 state-residency requirements are unnecessary and should be removed. They have argued that Australia 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 have both shared that they are open to reviewing these requirements in their state.  

Solution Identification: 

Amend the Voluntary Assisted Dying Act 2022 (NSW) to omit section 16(1)(c) and section 17,  to remove the state residency requirements for VAD.

This could remove unnecessary administrative hurdles for patients to receive VAD.

Advice:

The NSW Minister for Health should seek to amend the New South Wales Voluntary Assisted Dying Act 2022, to remove s 16(1)(c) and s 17 at the next opportunity. 

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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:

John’s Story: John was 73 when he was diagnosed with late-stage lung cancer in New South Wales. His condition progressed quickly, and he soon found himself with intolerable suffering that pain medications were unable to relieve. Doctors told John that he had less than six months to live, and that his suffering would only get worse. John felt passionately that he should have the autonomy to decide how his life should end, and asked his doctor to help him apply for Voluntary Assisted Dying. Part of this application process involved proving that John had been ordinarily resident in New South Wales for the last 12 months. Because John did not have a fixed place of residence, this proved to be especially difficult. Quickly, John became too ill to continue with the application process, and died in pain without having received VAD. This painful, undignified death could have been avoided if the application process for VAD was quicker, and if John was not required to prove his state-residency. 

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

First request patient information guide Voluntary assisted dying. (n.d.). https://www.health.nsw.gov.au/voluntary-assisted-dying/Publications/first-request-patient-guide.pdf

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

May, N., & Luca Ittimani. (2024, August 11). Too complex, too late: the guardrails acting as roadblocks to voluntary assisted dying across Australia. The Guardian; The Guardian. https://www.theguardian.com/australia-news/article/2024/aug/12/too-complex-too-late-the-guardrails-acting-as-roadblocks-to-voluntary-assisted-dying-across-australia

NSW Voluntary Assisted Dying Board - Voluntary assisted dying. (2024). Nsw.gov.au. https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/board.aspx#:~:text=seekers%20and%20refugees.-

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 exemptions. (2021). Qld.gov.au. https://www.qld.gov.au/health/support/voluntary-assisted-dying/explained/exemptions

Vermont Ethics Network (n. d.). Medical Aid in Dying, Act 39: Patient Choice and Control at the End of Life. www.vtethicsnetwork.org https://vtethicsnetwork.org/palliative-and-end-of-life-care/medical-aid-in-dying-act-39#:~:text=In%20May%20of%202023%2C%20Vermont,in%20which%20they%20legally%20reside.  

Voluntary Assisted Dying Act, 2022 (NSW). 

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 (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 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