The lesser-known setbacks of the Voluntary Assisted Dying Scheme and how to avoid them

Two recent cases passing through the Victorian Civil and Administrative Tribunal in 2020 have highlighted the importance of forward planning if a person is considering voluntary assisted dying (“VAD”). The requirement for Australian citizenship or permanent residence, together with being “ordinarily resident in Victoria” can be an unexpected obstacle for prospective applicants to the scheme.

Who can access the VAD scheme?

The Voluntary Assisted Dying Act 2017 (the Act) sets out several eligibility criteria for a person seeking to access the scheme, being:

  1. Age – the person must be over 18;
  2. Residence – the person must be ordinarily resident in Victoria, and at the time of the first request, have been ordinarily resident in Victoria for at least 12 months;
  3. Citizenship – the person must be an Australian citizen or permanent resident;
  4. Capacity – the person must have decision making capacity in relation to voluntary assisted dying;
  5. Diagnosis – the person must have a diagnosis of a disease, illness or medical condition which is:
    • Incurable
    • Advanced, progressive and will cause death
    • Is expected to cause death within weeks or months, not exceeding 6 months (or 12 months for neurodegenerative conditions)
    • Is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable

Provided a person meets the eligibility criteria, there are a number of further steps which must be taken in order for that person to be granted a permit for VAD, and ultimately prescribed the medication for themselves or their doctor to administer.

Understandably, commentary regarding the implementation of the Act has focused on striking the right balance between providing sufficient safeguards from abuse of the scheme and permitting access to the scheme for those who would seek it.

However, it is as a result of the citizenship and residency criteria that many applications have been denied, two of which resulted in legal proceedings.

Recent cases

The first case, NJT v NJT (Human Rights) [2020] VCAT 547, related to a “grey nomad” who, whilst “based’ in Victoria, had no fixed address. His initial application for access to VAD was put before VCAT due to the doubt surrounding whether he was “ordinarily resident in Victoria”.

The patient (“BTR”) lived in a caravan and regularly travelled to Queensland to escape the Victorian weather. He had no rental history since 2006 and did not own property (in Victoria or otherwise). He had physicians in Melbourne but also visited physicians in Queensland. There was no allegation that he would be ineligible for VAD on any grounds other than the residency requirement.

The evidence required to be submitted by BTR before VCAT ultimately determined that he was eligible for VAD was substantial. He provided his drivers license, passport, medical records, a statutory declaration, a timeline of his living arrangements and information as to his decision to return to Victoria for medical care. Even though BTR was ultimately granted a permit to access VAD, the process took over a month of his last few months of life and was undoubtably frustrating and traumatic.

The second case, YSB v YSV (Human Rights) [2020] VCAT 1396 dealt with the citizenship criteria. The patient in question (“UQL”) had migrated from England some 15 years earlier and had not left Australia in more than 10 years. He had owned a house in Victoria for 9 years. UQL was originally born in the UK and moved to New Zealand before settling in Australia. He did not hold Australian citizenship and his visa classed him as a temporary resident, although the period of stay was “indefinite”.

VCAT was asked to determine whether the initial decision that UQL did not meet the citizenship requirement could be challenged. Unfortunately, VCAT found that it did not have the jurisdiction to hear the question; the Tribunal did not have the jurisdiction to determine whether UQL was a permanent resident, nor could it waive the requirement. The Tribunal acknowledged the “disappointment and despair” that the decision caused, as the result left UQL with no practical avenue to access VAD despite meeting the medical criteria.

How we can help

Both of the situations in which the two patients found themselves in were born of administrative setbacks, rather than medical setback; this is reflected in commentary released by the VAD Board that the residence and citizenship requirements often catch prospective applicants unawares.

These setbacks can potentially be avoided by raising any queries in relation to potential future eligibility for VAD with an Estate Planning lawyer, particularly when considering medical directives and Powers of Attorney. Addressing the need for citizenship or residence as part of the Estate Planning process can provide substantial peace of mind and avoid a traumatic legal process in the final stages of a terminal illness. For more information and expert advice, please do not hesitate to contact us.