Australia: Is euthanasia legal in New South Wales?

New South Wales has become the last Australian state to legalise voluntary assisted dying, enabling terminally ill patients to choose to end their life.

The 'Voluntary Assisted Dying Bill 2022' was fiercely debated, receiving over 100 amendments, but was finally passed with 23 votes in favour and 15 against.

The bill was introduced by independent Alexander Greenwich and received the support of Labor and Liberal members.

The legislation will now come into effect within 18 months.

What is euthanasia? Euthanasia includes voluntary assisted dying to end a life.

The new laws outline that patients in the final stages of a terminal illness and those who are experiencing suffering that cannot be alleviated by palliative care will now be able to choose voluntary assisted dying.

To be eligible, the patient must be 18 years or older, and an Australian citizen.

The person must be likely to die from a disease within six months, or a year in the case of a neurodegenerative disease or condition, which is causing suffering that cannot be relieved.

The person must still have the capacity to make the decision for themselves and must be acting voluntarily without pressure.

Pursuant to section 6, this is assessed on the basis of whether the patient has the capacity to understand information and advice, remember information, weigh up the factors involved, and communicate a voluntary assisted dying decision in some way.

The decision will be assessed by at least two medical practitioners.

A person who dies as a result of a euthanasia procedure will not be considered to have died from suicide.

The legislation confirms that a person does not incur criminal liability if they, in good faith, assist another person to request access to, or access, voluntary assisted dying or are present when another person self-administers, or is administered, a prescribed substance, as per section 130.

The procedures will be conducted via prescribed substances.

A health care worker must not initiate a discussion with a patient about or suggest voluntary assisted dying to them.

However, it may be permitted in discussion with a patient, if they are also informing them of the treatment options available, palliative care options, and associated likely outcomes.

A contravention of this is capable of constituting unsatisfactory professional conduct or professional misconduct.

Offences are prescribed within Part 7 of the Act.

If an authorised supplier of a prescribed substance used in voluntary assisted dying is presented with a prescription that is not compliant, is not issued by a patient's coordinating practitioner, or is false in any aspect, they must cancel the document and give the Health Secretary written notice.

A maximum penalty of 12 months imprisonment applies if this is not complied with, as per section 124.

If a patient revokes a decision to proceed with voluntary assisted dying, they must as soon as practicable and not later than 14 days after the day on which the decision is revoked, give the prescribed substance back to an authorised disposer.

Furthermore, if a prescribed substance is ordered but not all of it is utilised, it must be returned accordingly.

If the above procedures are contravened, the applicable maximum penalty is 12 months imprisonment, as outlined in section 125.

A person must also not, directly, or indirectly, record, use or disclose information obtained by the person because of a function the person has or had under the Act, with respect to voluntary assisted dying.

A maximum penalty of 12 months imprisonment is applicable.

However, this does not apply to the recording, use or disclosure of information for the purpose of performing their function, as allowed, or required, under an order of a court, with written consent, or for the purpose of the investigation of a suspected offence.

All states have now approved laws enabling voluntary assisted dying.

Victoria: In June 2019, Victoria put an assisted suicide scheme in place, with Western Australia imposing a similar system in July 2021.

Tasmania: Tasmania passed voluntary assisted dying legislation in March 2021, which is to take effect from October 2022.

South Australia: South Australia passed similar legislation in June 2021.

Queensland: Queensland passed voluntary assisted dying legislation in September 2021, which will take effect from January 2023.

ACT/NT: The Australian Capital Territory and the Northern Territory have been unable to legalise euthanasia.

This is due to a long-standing Commonwealth ban on Australia's territories voting on the issue.

Despite the NT becoming the first place in Australia to pass euthanasia laws in 1995, Liberal MP, Kevin Andrews, put forward a bill to ban the territories from making their own laws on the matter,

This bill passed on a conscience vote.

The Commonwealth has retained this power to overrule any laws related to the topic passed by territory parliaments.

Whilst former Prime Minister Scott Morrison had stated that it would not allow the NT and ACT to vote on the issue, Anthony Albanese has previously provided support for the right of the territories to vote on it, signalling that change may be near.

Due to the previous inability to access lawful euthanasia services, many cases have been prosecuted in NSW where individuals have been charged with murder or manslaughter for assisting another, often a loved one, in committing suicide.

In 2011, a 66-year-old man was sentenced to a two-year suspended imprisonment sentence for facilitating the death of his long-term 78-year-old partner by helping her overdose on drugs, and then suffocating her.

In the case of R v Mathers [2011] NSWSC 339, the man was convicted of manslaughter.

The deceased had suffered severe pain arising from a spinal condition and had expressed a wish to die in a suicide note prior to her death, being unable to move by reason of pain.

The man was incredibly honest and frank with police, voluntarily admitting his involvement in her death, which afforded him a discount on sentence.