(WA) End State Residency Requirements for Voluntary Assisted Dying

Author: Christopher Noonan | Publish date: 04/07/2024

Problem Identification: 

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

Western Australia’s Voluntary Assisted Dying Act 2019 states one is eligible for VAD only if the patient, ‘at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months’.

This means that patients who have been ordinarily resident in WA 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 WA to prove their residency. 

Context: 

VAD allows terminally ill patients to have a medical professional assist them in ending their life. In 2019, VAD was legalized in WA by the Voluntary Assisted Dying Act 2019 (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 specifically to receive VAD, a phenomenon also 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 an 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. 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 The American states of Vermont and Oregon have repealed their state-residency requirements for VAD, and the Ministers for Health in WA and Queensland have already shared that they are open to reviewing these requirements in their states.

Solution Identification: 

Amend the WA Voluntary Assisted Dying Act 2019 to remove section 16(b)(ii), which states that patients be residents of WA for 12 months before being eligible for VAD. 

This could allow patients who have been in WA 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 WA seeking VAD.

Advice:

The WA Minister for Health should seek to amend the Western Australian Voluntary Assisted Dying Act 2019 to remove s.16(b)(ii) at the next opportunity

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Public Support: 

1. Katherine Waller

2. Dr Aidan Ricciardo

3. Dying with Dignity Victoria

4. Go Gentle Australia

5. 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 could get back 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

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