(SA) End State Residency Requirements for Voluntary Assisted Dying

Author: Christopher Noonan | Publish date: 01/09/2024

Problem Identification: 

To be eligible to receive Voluntary Assisted Dying (VAD) in South Australia, one must have been ordinarily resident in the state for at least 12 months.

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

This means that patients who have been ordinarily resident in South Australia 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 South Australia 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 South Australia in 2021 by the Voluntary Assisted Dying Act (VADA). VAD is currently legal in all other states, and will likely be available in both territories soon. 

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

These requirements have faced criticism. There are reports of patients who visit 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 Australia already requires eligible patients to be Australian citizens/permanent residents, preventing international death tourism. They also 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 The American states of Vermont and Oregon have repealed their state-residency requirements for VAD, and the Ministers for Health in Western Australia and Queensland have both shared that they are open to reviewing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 South Australian Voluntary Assisted Dying Act 2021 to remove section 26 (1)(b)(iii), which states that patients be residents of South Australia for 12 months before being eligible for VAD. 

This could allow patients who have been in South Australia for less than 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 South Australia to receive VAD.

Advice:

The South Australian Health and Wellbeing Minister should seek to amend the South Australian Voluntary Assisted Dying Act 2021 to remove s 26 (1)(b)(iii) 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: 

Appointed NSW Department of Climate Change, Energy, the Environment and Water - Animal Ethics Committee member.

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