Thinking | 24 May 2022

Voluntary assisted dying legalised in NSW

By James Whiley and Joel Whale

Voluntary assisted dying will be legalised in New South Wales, the last state in Australia to pass legislation to allow terminally ill adults to choose to end their lives. The bill[1] passed the Upper House last Thursday (19 May) after 10 hours of debate. We explain how the legislation will work once it comes into effect.

Who can access voluntary assisted dying?

Voluntary assisted dying will be available to adults in NSW with ‘decision-making capacity’ who have been diagnosed with at least one disease, illness or medical condition that is:

  • advanced and progressive and will cause death either within a period of 12 months (if neurodegenerative) or otherwise within six months; and
  • is causing suffering to the person that cannot be relieved in a way they consider tolerable.

A person must also satisfy residency and other eligibility criteria, including the person acting voluntarily and not under pressure or duress.[2]

What is ‘decision-making capacity’?

To have decision-making capacity, a person must understand and be able to weigh up the following factors:

  • information or advice about a voluntary assisted dying decision;
  • the matters involved in a voluntary assisted dying decision; and
  • the effect of a voluntary assisted dying decision.[3]

Decision-making capacity must be maintained throughout the entire decision-making process.

Who cannot access voluntary assisted dying?

A person is not eligible for access to voluntary assisted dying merely because they have a disability, dementia or a mental health impairment.[4] A person with such an illness or condition must still demonstrate they meet the eligibility criteria.

What happens now?

The legislation will not take effect until 18 months after the date of assent, to allow for the training of medical practitioners and other healthcare professionals.

If you would like further information, please contact a member of our Private Clients team (details below).

This article was written with the assistance of Kate Watson-Brown, Law Graduate.

[1] Voluntary Assisted Dying Bill 2022 (NSW).
[2] s 16.
[3] s 6.
[4] s 16(2).


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