Voluntary Assisted Dying in NSW

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Written by James Kelly, Solicitor

From 28 November 2023 the Voluntary Assisted Dying Act 2022 (NSW) (the VAD Act) is enacted and commences operation. That means a person who is eligible may request medical help to end their life.

The VAD Act is lengthy and detailed.

The choice to access assisted dying is open to those “eligible”. The criteria for eligibility are set out in section 16 of the VAD Act. The section also includes those “not eligible” such as a person with a disability, dementia or mental health impairment.

Eligible persons must, for example, be at least 18 years old, be an Australian citizen or resident, have lived in NSW for at least 12 months and have at least one disease or illness or medical condition that is advanced. The medical issue must be likely to cause death within 6 months or 12 months if it is a neurodegenerative disease (such as motor neurone disease) and the person cannot be treated in a way that the person considers tolerable.

In summary, a person must have “decision-making capacity” to be eligible and to be acting voluntarily. The elements of decision-making capacity are set out in section 6 of the VAD Act.

The requirement to make an communicate requests and decisions about assisted dying is also required.

The VAD Act provides protection for certain persons, with a conscientious objection, to refuse to be involved. That can include, for example, a registered health practitioner, an aged care provider or a health care establishment.

The VAD Act sets out an assessment process with a number of steps for eligible persons.

This legislative reform is a reminder of the general importance for people of having their estate planning up to date and in order. Legal documents like an Enduring Guardianship appointment and Advance Health Care Directive are very important in preparing for the future.

The Elder Law team at Owen Hodge Lawyers understand the sensitive nature of these matters, and are here to support you by offering guidance and helping you prepare for the future.


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