From today, eligible people in New South Wales can ask for voluntary assisted dying.
Authors
Casey Michelle Haining
Research Fellow, Australian Centre for Health Law Research, Queensland University of Technology
Ben White
Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of Technology
Katrine Del Villar
Lecturer, Queensland University of Technology
Lindy Willmott
Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of Technology
NSW is the last Australian state to have its voluntary assisted dying laws begin. These laws come into effect following an 18-month implementation period.
Here is who's eligible to request voluntary assisted dying in NSW and how its laws compare with those in other Australian jurisdictions.
Who's eligible in NSW?
To be eligible for voluntary assisted dying in NSW, a person must:
be an adult with decision-making capacity
be an Australian citizen, permanent resident or a resident of Australia for at least three continuous years
have lived in NSW for at least 12 months (unless granted an exemption)
be experiencing suffering that cannot be relieved in a way the person considers tolerable
have a condition that is advanced, progressive and will cause death within six months (or 12 months for neurodegenerative diseases)
be acting voluntarily without pressure or duress.
How do these new laws differ from other states?
Australian voluntary assisted dying laws are lengthy and tightly regulate the request and assessment process.
A person must make at least three separate requests for voluntary assisted dying, and their eligibility must be assessed by at least two specially trained doctors. The process is overseen by a voluntary assisted dying board (or commission).
The new laws largely follow the Australian model of voluntary assisted dying, but key differences exist. In NSW:
people can choose between taking the medication themselves or having the medication administered by a qualified health professional. In other states, administration by health professionals is more limited
all health-care workers (not just for example, doctors and/or nurse practitioners depending on the state) can raise the option of voluntary assisted dying with the person, provided they also inform the person about palliative care and other treatment options
nurse practitioners can administer the medication (they cannot in Victoria and South Australia). However, nurses cannot administer it (they can in Tasmania and Queensland)
non-participating facilities have obligations to facilitate access, including allowing health professionals to enter the facility to provide information. Residential facilities must also allow health professionals to attend to assess for eligibility or administer the medication. In other cases, facilities may be required to transfer the person elsewhere for this to occur. (These obligations do not exist in Victoria, Tasmania and Western Australia)
the usual waiting period between first and final requests for voluntary assisted dying is five days (compared with seven days in Tasmania and nine days in other states).
What's happening elsewhere?
Since 2019, all Australian states have progressively introduced voluntary assisted dying. Each state must review their laws after a fixed period, and some states have already started doing so.
Victoria and Western Australia
Victoria was the first state to introduce voluntary assisted dying laws, which became operational in June 2019. In the first four years, 912 people died through voluntary assisted dying.
Western Australian laws have been in effect since July 2021. In its first two years of operation, 446 people died through voluntary assisted dying.
Both states have started to review their laws.
Tasmania, Queensland and South Australia
Tasmanian laws have been operational since October 2022, with 16 people dying through voluntary assisted dying in the first six months. These laws are scheduled to be reviewed after October 2025.
Queensland and South Australian laws commenced in January 2023. In Queensland, 245 people died in the first six months through voluntary assisted dying. In South Australia, 70 people died in the first eight months.
Queensland laws will be reviewed in 2026 and South Australia's will be reviewed in 2027.
Australian Capital Territory and Northern Territory
The territories were previously prevented from passing voluntary assisted dying laws by a federal law, which has now been repealed.
In 2023, the Australian Capital Territory introduced a voluntary assisted dying bill into parliament. The Northern Territory has established a panel to make recommendations, and community consultation has begun.
Passing laws does not guarantee access
Early research and reports from oversight bodies suggest voluntary assisted dying laws are safe, but have reported a range of barriers to access.
Some of the barriers are specific to a specific state's law. Other barriers have been reported across states. Barriers include:
Commonwealth restrictions on discussing voluntary assisted dying via telehealth and email
a lack of doctors willing to provide voluntary assisted dying
inadequate remuneration for doctors
a lengthy and complicated administrative process.
While some barriers may be addressed at the state level, others will require reform at the federal level (for example, telehealth restrictions and inadequate remuneration).
Casey is a research fellow at the Australian Centre for Health Law Research. She has been employed on multiple projects as a research fellow, including the Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government and the Western Australian Government's Review of the Voluntary Assisted Dying Act 2019. She was also previously engaged as a legal writer for the Voluntary Assisted Dying Training in Queensland.
Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. He (with Lindy Willmott) has also developed a model bill for voluntary assisted dying for parliaments to consider. He is a sessional member of the Queensland Civil and Administrative Tribunal, which has jurisdiction for some aspects of this state's voluntary assisted dying legislation. Ben is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian government.
Katrine was a member of the QUT team which delivered the mandatory training for health professionals participating in voluntary assisted dying in Western Australia and Queensland.
Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. She (with Ben White) has also developed a model bill for voluntary assisted dying for parliaments to consider. Lindy Willmott is also a member of the Queensland Voluntary Assisted Dying Review Board, but writes this piece in her capacity as an academic researcher. She is a former board member of Palliative Care Australia.
