Introduction

Voluntary assisted dying, sometimes known as doctor-assisted dying, gives a chance for terminally ill people facing intense pain to peacefully leave life with medical help. Australia sees a varied legal scene with this practice, as each state and territory has its own collection of rules and regulations.

This guide aims to clarify the legal status of voluntary assisted dying throughout Australia. It will explain which Australian states have legalised voluntary assisted dying and outline the eligibility criteria a person must meet to be eligible for voluntary assisted dying. Furthermore, it will address the legal rights and obligations of health professionals involved with voluntary assisted dying.

Understanding Voluntary Assisted Dying

Defining Voluntary Assisted Dying

Voluntary assisted dying is defined as medical assistance to end a person’s life at their request. Assisted dying or voluntary assisted dying refers to a process where a medical practitioner provides eligible people with medication to end their life. This option is available for individuals in the final stages of a terminal illness, who are experiencing suffering that cannot be alleviated by treatment and palliative care. Euthanasia includes voluntary assisted dying to end life.

History and Background of Voluntary Assisted Dying in Australia

Voluntary assisted dying has been a topic of extensive debate and discussion in Australia for many years. Various attempts to legalise voluntary euthanasia law were made in the late 20th century. These attempts to introduce a voluntary assisted dying bill faced significant opposition from religious groups, medical associations, and ethicists. Despite the initial failures, the debate continued, reflecting evolving societal views on end-of-life choices.

The Intent and Purpose of VAD Legislation

The intent and purpose of voluntary assisted dying law is to provide a compassionate choice for individuals facing terminal illness and intolerable suffering. Voluntary assisted dying is designed to grant individuals control over their end-of-life decisions, allowing them to choose the timing and manner of their death. It is a voluntary choice for individuals suffering and dying to choose to end their life with dignity.

Voluntary Assisted Dying Laws in Each Australian State and Territory

Voluntary Assisted Dying Legal in New South Wales

Voluntary assisted dying is legal in New South Wales (NSW), with the Voluntary Assisted Dying Act 2022 (NSW) coming into effect on 28 November 2023.

To be eligible in NSW, a person must:

• Be an adult with decision-making capacity.
• Be diagnosed with at least one advanced and progressive disease, illness, or medical condition expected to cause death within six months (or 12 months for neurodegenerative conditions).
• Be experiencing suffering that cannot be relieved in a manner the person finds tolerable.

Individuals in NSW have two options to access voluntary assisted dying. They may self-administer the substance or opt for administration by a medical practitioner. Institutional objection provisions ensure that individuals in aged care or palliative care institutions can still access voluntary assisted dying despite facility objections. Furthermore, health professionals are permitted to initiate discussions about voluntary assisted dying but are required to also provide information regarding treatment and palliative care options.

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Voluntary Assisted Dying Legal in Victoria

Victoria was the first Australian state to legalise voluntary assisted dying, with the Voluntary Assisted Dying Act 2017 (VIC) taking effect on 19 June 2019.

Eligibility criteria in Victoria include:

• Being an adult Australian citizen or permanent resident.
• Being ordinarily resident in Victoria for at least 12 months.
• Having decision-making capacity.
• Being diagnosed with an advanced and progressive disease, illness, or medical condition expected to cause death within six months (or 12 months for neurodegenerative conditions), causing suffering deemed intolerable by the person.

Victorian law stipulates that the person must initiate the conversation about voluntary assisted dying, as health professionals are prohibited from suggesting it. While self-administration of the voluntary assisted dying substance is the primary method, practitioner administration is an option for individuals unable to self-administer. The law also includes strict safeguards to ensure the process is entirely voluntary and reserved for eligible individuals.

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Voluntary Assisted Dying Legal in Queensland

In Queensland, voluntary assisted dying became legal on 1 January 2023, with the Voluntary Assisted Dying Act 2021 (QLD) establishing the framework.

The eligibility criteria in Queensland include:

• Being an adult with decision-making capacity.
• Being an Australian citizen, permanent resident, or having ordinarily resided in Australia for at least three years.
• Being a resident of Queensland for at least 12 months immediately before the application.
• Having an advanced and progressive illness expected to cause death within 12 months, regardless of whether the condition is neurodegenerative or not.

Queensland’s legislation includes institutional objection provisions, ensuring individuals in care facilities can access voluntary assisted dying. Health professionals may bring up the option of voluntary assisted dying but must simultaneously discuss treatment and palliative care options. Conscientiously objecting practitioners are also obligated to provide details or contact information for voluntary assisted dying services.

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Voluntary Assisted Dying Legal in South Australia

South Australia legalised voluntary assisted dying on 31 January 2023, following legislation passed in 2021.

To qualify, individuals must:

• Be an adult Australian citizen or permanent resident.
• Have lived in South Australia for at least 12 months.
• Have decision-making capacity.
• Be diagnosed with an advanced and progressive disease, illness, or medical condition expected to cause death within six months (or 12 months for neurodegenerative conditions) and causing suffering they find intolerable.

In South Australia, as in Victoria, health professionals are not allowed to initiate conversations about voluntary assisted dying. The person must take the first step in requesting assistance. Self-administration is the primary method for accessing voluntary assisted dying substances, while practitioner administration is available in cases where self-administration is not feasible. Institutional objection provisions are also part of the legislative framework.

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Voluntary Assisted Dying Legal in Western Australia (WA) and Tasmania

Voluntary assisted dying is legal in both Western Australia (WA) and Tasmania.

• Western Australia: Laws took effect on 1 July 2021.
• Tasmania: The legislation became effective on 23 October 2022.

In Tasmania, eligibility requires having an incurable and irreversible illness. In both states, health professionals with conscientious objections must refer individuals to services equipped to provide voluntary assisted dying information and assistance.

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Voluntary Assisted Dying Not Yet Legal in the Northern Territory and Australian Capital Territory

The Northern Territory (NT) does not currently permit voluntary assisted dying. Although it was the first Australian jurisdiction to legalise euthanasia back in 1995, the Commonwealth Government overturned the law, and a subsequent ban prevented the territories from legislating on voluntary assisted dying decisions. However, this ban was repealed in December 2022, giving the NT the ability to potentially legalise voluntary assisted dying in the future.

In contrast, the Australian Capital Territory (ACT) has already taken its first steps toward legalisation. The Voluntary Assisted Dying Act 2024 (ACT) has passed, and voluntary assisted dying in the ACT will become legal on 3 November 2025. Until this comes into effect, voluntary assisted dying remains illegal in both territories, with individuals assisting in such actions at risk of charges ranging from murder to assisting suicide.

Legal Rights and Obligations of Health Professionals in Voluntary Assisted Dying

Rights of Health Professionals to Conscientious Objection

Health professionals are not legally required to participate in voluntary assisted dying. The law acknowledges the right of health practitioners to conscientiously object to providing euthanasia. No health practitioner or healthcare provider is obligated to participate in voluntary assisted dying if it conflicts with their personal beliefs. This ensures that health professionals can practice in accordance with their conscience regarding end-of-life decisions.

Obligations to Provide Information and Referrals

In some Australian states, health professionals who conscientiously object to voluntary assisted dying still have certain obligations. Specifically, in Queensland, Western Australia, and Tasmania, there is a requirement for conscientious objectors to provide information or contact details for voluntary assisted dying services. This may include passing on details of a Care Navigation Service. However, in other states like Victoria, health practitioners who conscientiously object may not be required to provide any information about voluntary assisted dying to patients.

Restrictions on Initiating VAD Discussions

There are restrictions on when health professionals can initiate discussions about voluntary assisted dying with patients. In Victoria and South Australia, health practitioners are specifically prohibited from initiating conversations about voluntary assisted dying. This means the onus is on the patient to first raise the topic. Conversely, in Western Australia, Tasmania, Queensland, and NSW, medical practitioners are permitted to bring up voluntary assisted dying. However, even in these states, when voluntary assisted dying is discussed, health professionals must also discuss treatment and palliative care options available to the patient.

Procedural Requirements for Health Professionals

Health professionals must adhere to specific procedural requirements before they can discuss end-of-life options like voluntary assisted dying. These requirements are part of the safety measures built into the framework of the Voluntary Assisted Dying Act 2024 (ACT). While the specifics may vary by jurisdiction, the ACT framework highlights the general principle that health professionals must meet certain obligations before speaking with a person about voluntary assisted dying. These measures ensure a structured and safe process for accessing voluntary assisted dying.

Conclusion

Voluntary assisted dying is a complex legal and ethical issue with varying laws across Australian states and territories. While voluntary assisted dying is now legal in all states, the Northern Territory and ACT are still progressing towards legalisation, with the ACT set to implement its law in late 2025. Each state has implemented its own Voluntary Assisted Dying Act, establishing specific eligibility criteria and processes that individuals must meet to access voluntary assisted dying. These laws aim to provide a compassionate option for terminally ill individuals experiencing intolerable suffering, while also incorporating safeguards to protect vulnerable people and respect the rights of health professionals.

Navigating the complexities of voluntary assisted dying law requires a clear understanding of the legal landscape in your state and the rights and obligations it entails. For personalised guidance and to explore your options in this area, contact our experienced team at PBL Legal today. We offer specialised knowledge to assist you in understanding voluntary assisted dying laws and ensuring your end-of-life choices are informed and respected.

Frequently Asked Questions About Voluntary Assisted Dying Laws in Australia