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Wills and voluntary assisted dying (VAD) law in NSW – Healthcare

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On 19 May 2022, NSW became the last state in Australia to pass
voluntary assisted dying legislation. It will not come into force
until late in 2023, as there is an 18-month implementation period
to establish how it will work and to train health practitioners who
are willing to be involved in the process.

Eligibility criteria for voluntary assisted dying in NSW

Voluntary assisted dying legislation has passed the NSW
parliament, which will make it legal for some patients with a
terminal illness to choose when to end their pain. (Please see

Voluntary Assisted Dying Bill 2022

It will be available to an adult with decision-making capacity
who has an advanced and progressive illness that will cause death,
likely within six months, or 12 months for neurodegenerative

Other eligibility criteria include that the patient is
suffering, their choice is voluntary and their decision is

Two senior doctors who have completed mandatory training will
each conduct a rigorous eligibility assessment. A voluntary
assisted dying board will be established to ensure the system is
operating safely.

Penalties under voluntary assisted dying legislation for
applying pressure or duress

The legislation includes stiff penalties of up to seven years in
jail for anyone applying pressure or duress to get a sick person to
apply for VAD. This includes coercion, intimidation, threats, elder
abuse and undue influence.

Family and any beneficiary of the patient’s will cannot be
involved in the mechanics of the process and must not unduly
influence the decision of the patient to proceed with ending their

Under the law the patient is required to sign a form declaring
they have not been pressured by family or someone who is a
beneficiary of their will to apply for VAD.

Who can be involved in the process?

Anyone considering ending their lives through the new euthanasia
laws in NSW should consult a legal expert on wills to determine
whether provisions in the VAD law may have a bearing on the way
their will is drawn up.

It may be that the patient wants a family member, a loved one
whom they trust or someone who is close to them to be involved in
the process of ending their lives, but under the NSW voluntary
assisted dying law that person may be ineligible.

This includes medical practitioners, psychologists,
interpreters, even a person who acts as a witness to the
patient’s signing of a written declaration that they wish to
proceed with ending their life.

Assisted dying legislation in other states

Similar VAD laws have been operating in Victoria and Western
Australia for a couple of years. Both states found training was
essential for both the medical practitioners willing to participate
in the process and for the role played by other health
professionals in supporting patients, families and doctors.

In WA, 50 terminally ill people chose to use the state’s
voluntary assisted dying law in its first four months. That number
is likely to be higher in NSW, but the 18-month delay in enacting
the law means it is unlikely to help patients who are terminally
ill now.

The Northern Territory and Australian Capital Territory were
barred from introducing VAD laws by the Howard government in

With a new Labor government in Canberra and a more progressive
senate being elected, the ban on the territories introducing VAD
may soon be overturned.

Joshua Crowther

Legal wills

Stacks Law Firm

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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