Voluntary Assisted Dying

03 NOV 2023


Later this month, on 28 November 2023, voluntary assisted dying will come into effect in New South Wales. 

The New South Wales Parliament passed the Voluntary Assisted Dying Act 2022 (‘The Act’) on 19 May 2022 which paved the way for an 18 month implementation period to establish how the process will work and to train health practitioners who are willing to be involved in the process.

To access voluntary assisted dying, you must be an eligible person under The Act.  To be eligible, you must:

  1. be over the age of 18;
  2. be an Australian resident who is residing in New South Wales;
  3. have been diagnosed with an disease/illness that will cause death within a period of 6 months (or 12 months if the disease is neurodegenerative in nature, such as motor neuron disease);
  4. have decision-making capacity; and
  5. be acting voluntarily and not because of pressure or duress.

The Act excludes people from accessing voluntary assisted dying if they merely have a disability, dementia or a mental illness.  Rather, the person must have a terminal disease and also must have decision-making capacity, meaning they are able to understand, remember and weigh-up the factors involved in making the decision to participate in voluntary assisted dying.  This means that a person would not be able to make this decision on behalf of another person using an Enduring Power of Attorney or Appointment of Enduring Guardian document.

Voluntary assisted dying in New South Wales will be a 6 stage process, where each stage with be assessed by the Voluntary Assisted Dying Board made up of a 5 person panel appointed by the Minister of Health and Attorney-General.

Step 1: You make a first request to your doctor who either accepts or refuses your request.

Step 2: Upon acceptance, your doctor undertakes a first assessment to confirm that you meet The Act’s eligibility criteria.  If there is any doubt as to your decision-making capacity or issues surrounding duress, you will also be referred to a psychiatrist for further assessment.

Step 3: You are referred to a second doctor who conducts a second assessment of your eligibility.

Step 4: You complete a written declaration declaring that you have made the decision to participate in voluntary assisted dying without any pressure or duress.  This declaration must be witnessed by two independent witnesses over the age of 18.

Step 5: You make a final request to your first doctor who then submits a final review to the Voluntary Assisted Dying Board.

Step 6: In consultation with your doctor, a voluntary dying substance is chosen.  You have the choice as to whether you wish to self-administer the substance or have the substance administered by your doctor.  Once the Voluntary Assisted Dying Board approves the choice of substance, the substance is prescribed and issued to you.

New South Wales is now the last state in Australia to implement voluntary assisted dying and we have seen a mostly successful introduction across the country so far.  We hope that New South Wales have utilised the 18 month implementation period to their advantage to ensure a smooth transition from 28 November onwards.

To discuss any Estate queries you may have, please contact our Estate Planning Department on 02 4626 5077 or via email at kwolthers@marsdens.net.au.


The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.


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