End of Life Law in Australia

Voluntary Assisted Dying

Voluntary assisted dying (VAD) is a major legal, ethical and social policy issue. In Australia, VAD laws have been passed in five of Australia's six States. Victoria's and Western Australia's VAD laws have commenced operation. VAD will commence in Tasmania on 23 October 2022, South Australia in early 2023, and Queensland on 1 January 2023.

This webpage discusses the laws on VAD both in Australia and internationally, and their intersection with palliative care and medical treatment decision-making.

What is voluntary assisted dying?

Voluntary assisted dying (VAD) refers to the assistance provided to a person by a health practitioner to end their life. It includes:

  • 'self-administration', where the person takes the VAD medication themselves (this is sometimes called physician-assisted suicide or dying), and
  • 'practitioner administration', where the person is given the medication by a doctor (or in some Australian States, a nurse practitioner or registered nurse) (this is sometimes called voluntary euthanasia).

‘Voluntary’ indicates that the practice is a voluntary choice of the person, and that they are competent (have capacity) to decide to access VAD.

The term 'voluntary assisted dying' evolved in Australia in recent years following inquiries and parliamentary debates of laws enabling a terminally ill person to seek medical assistance to die. This term is now commonly used in Australia, rather than euthanasia or physician-assisted suicide or dying. The definition of VAD in each Australian State with VAD laws is discussed below.

Different terms are used elsewhere in the world. For example, ‘physician-assisted suicide’ is used in Oregon and other States in the USA. ‘Medical Assistance in Dying’ is the term used in Canada, while ‘euthanasia’ is used in Belgium and The Netherlands. For further information see Legality of euthanasia and assisted dying outside of Australia.

Voluntary assisted dying in Australian States

Victoria 

Voluntary assisted dying (VAD) is legal in Victoria under the Voluntary Assisted Dying Act 2017 (Vic) ('the Act'). The Act provides for and regulates access to VAD, which is defined as 'the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration'.

Further information and factsheets about VAD are available from Victoria Health.

What is the eligibility criteria?

A person will be eligible to access VAD if he or she:

  • is aged 18 or over;
  • is an Australian citizen or permanent resident, ordinarily resident in Victoria, and, at the time of making a first request for VAD, has been resident in Victoria for at least 12 months;
  • has decision-making capacity, meaning the person can:
    • understand information relevant to the decision to access VAD, and the effect of the decision,
    • retain that information to the extent necessary to make the decision,
    • use or weigh the information as part of the decision-making process, and
    • communicate the decision and the person’s views and needs about the decision in some way; and
  • is diagnosed with a disease, illness or medical condition that is:
    • incurable;
    • advanced, progressive and will cause death;
    • expected to cause death within six months (or, in the case of a person with a neurodegenerative disease, illness or condition, within 12 months); and
    • causing suffering to the person that cannot be relieved in a manner that the person finds tolerable.

Disability or mental illness alone do not satisfy the eligibility requirements for accessing VAD. A person with a disability or mental illness may be eligible for VAD if they meet all the eligibility criteria.

A person is presumed to have capacity to make a VAD decision unless it can be shown otherwise.

A person who is considered ineligible for VAD because he or she:

  • is not ordinarily resident in Victoria;
  • was not a resident for at least 12 months prior to making the VAD request; or
  • does not have decision-making capacity to make a request

may apply to the Victorian Civil and Administrative Tribunal for a review of the decision.

How is a person's eligibility for VAD assessed?

A person’s eligibility to access VAD must be independently assessed by at least two medical practitioners - a coordinating medical practitioner and a consulting medical practitioner - who have completed mandatory training, and meet other eligibility requirements.

During the first assessment the coordinating medical practitioner will determine if the person meets the eligibility criteria, and also whether:

  • the person understands what VAD involves;
  • the person has made the decision to access VAD voluntarily; and
  • the request for VAD is enduring.

If the person is eligible, the consulting medical practitioner must carry out a further, independent assessment. If that practitioner confirms the person is eligible and the person wishes to continue, other legislative requirements must then be followed, including the person:

  • making a written declaration requesting access to VAD;
  • making a final request for VAD, in person, to the coordinating medical practitioner; and
  • appointing a contact person (who must return any unused or remaining VAD medication to a pharmacist at the dispensing pharmacy).

On receiving the person’s final request for VAD, the coordinating medical practitioner will conduct a final review, which involves reviewing and completing forms, and certifying that the request and assessment process (and legislative requirements) have been completed.

There are timeframes that apply to each of the steps in the process. A diagram of the VAD process can be viewed in Victoria Health's Voluntary Assisted Dying - Quick reference guide for health practitioners.

How and when is VAD administered? 

There are two types of administration: Self-administration, and practitioner administration.

Self-administration

Once the coordinating medical practitioner certifies in a final review form that the request and assessment process is complete, he or she may apply for a VAD permit for the person (a ‘self-administration permit’). The permit authorises:

  • the coordinating medical practitioner to prescribe and supply the VAD medication to the person for self-administration;
  • the person to obtain, possess, store, use and self-administer the medication; and
  • the contact person to possess, store, carry, transport and return the unused or remaining VAD medication to the dispensing pharmacy following the person’s death.

After a permit has been issued to the coordinating medical practitioner the person may access VAD.

In most cases the VAD medication will be self-administered by the person at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes but cannot assist the person with self-administration. There is no requirement for a medical or other health practitioner, or a witness, to be present however a person may choose to have a health practitioner present. The person may change their mind at any time and choose not to take the medication.

Practitioner administration

If the person is physically incapable of self-administering or digesting the medication (e.g. those with physical disabilities that limit their ability to self-administer) the coordinating medical practitioner may apply for a practitioner administration permit authorising them to administer the medication to the person.

During practitioner administration, the VAD medication will be administered by the practitioner either intravenously or subcutaneously to the person. It must take place in the presence of a witness, who must certify that the person appeared to have decision-making capacity at the time of making the administration request; the person appeared to be acting voluntarily, without coercion; and the person’s request appeared to be enduring. The witness must also confirm the coordinating medical practitioner administered the VAD medication to the person.

Anyone the person chooses may also be present during practitioner administration.

Do health practitioners have to participate in VAD?

Health practitioners with a conscientious objection to VAD have the right to choose not to participate in VAD. They are under no obligation to:

  • provide information about VAD to a person; or
  • participate in any part of the VAD process, including assessing the eligibility of a person; or supplying, prescribing, administering, or being present prior to, during or following administration of a VAD medication.

Is it lawful for a health practitioner to discuss VAD with a person?

A registered health practitioner is prohibited from initiating a discussion about VAD or suggesting VAD to a person, but can provide information about VAD at a person’s request.

What are the safeguards around VAD?

The Act contains a range of safeguards including:

  • Health practitioners are prohibited from initiating a discussion about VAD. This is designed to ensure that the person’s request for VAD is voluntarily made.
  • A family member or carer cannot request VAD on somebody’s behalf.
  • A person must make at least three separate requests for VAD.
  • The person must be provided with information about their diagnosis and prognosis, available treatment and palliative care options, and risks associated with taking the lethal medication (i.e. death). The person must also be advised that they may decide at any time not to continue the VAD process.
  • VAD medication cannot be administered without a permit authorising self-administration or practitioner administration.
  • Regulations governing the prescription, dispensing and disposal of VAD medications. The VAD medication must be stored in a locked box after it has been dispensed. A contact person appointed by the person accessing VAD must return any of the medication unused or remaining after the person’s death.
  • Mandatory reporting requirements for health practitioners and employers where they believe another practitioner’s conduct breaches the Act.
  • Offences (punishable by up to 5 years imprisonment) for anyone who induces another person to request VAD or take the VAD medication.

To provide VAD medical practitioners must have the necessary expertise and experience as set out in the legislation, and successfully complete the accredited training.

The Voluntary Assisted Dying Review Board is responsible for monitoring, reporting, compliance, safety and research functions.

Western Australia 

Voluntary assisted dying (VAD) is legal in Western Australia under the Voluntary Assisted Dying Act 2019 (WA) (the Act), which commenced on 1 July 2021.

The Act provides for and regulates access to VAD, which is defined as 'the administration of a voluntary assisted dying substance, and includes steps reasonably related to such administration'. A ‘voluntary assisted dying substance’ is medication used for the purpose of causing a person’s death (referred to on this website as ‘VAD medication’).

Further information and factsheets about VAD are available from the Western Australian Department of Health.

What is the eligibility criteria?

A person will be eligible to access VAD if the person:

  • is aged 18 or over;
  • is an Australian citizen or permanent resident, and at the time of making a first request for VAD was ordinarily resident in Western Australia for at least 12 months;
  • is diagnosed with at least one disease, illness or medical condition that:
    • is advanced, progressive and will cause death;
    • will, on the balance of probabilities, cause death within 6 months (or, in the case of a neurodegenerative disease, illness or condition, within 12 months); and
    • is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable;
  • has decision-making capacity for VAD, meaning they can:
    • understand any information or advice that must be provided to the person about a 'VAD decision' (meaning a request for access to VAD, or a decision to access VAD),
    • understand the matters involved in a VAD decision,
    • understand the effect of a VAD decision,
    • weigh up those factors in order to make the VAD decision, and
    • communicate the VAD decision in some way;
  • is acting voluntarily and without coercion; and
  • has an enduring request for VAD.

Disability or mental illness alone will not satisfy the eligibility requirements for accessing VAD. A person with a disability or mental illness may be eligible for VAD if they meet all the eligibility criteria.

A person will be presumed to have capacity to make a VAD decision unless it can be shown otherwise.

Where either of the medical practitioners assessing the person’s eligibility for VAD decide that the person:

  • has, or has not been ordinarily resident in Western Australia for at least 12 months at the time of making the VAD request, or
  • has or does not have decision-making capacity for VAD, or
  • is or is not acting voluntarily and without coercion,

the State Administrative Tribunal will be able to review the decision.

How is a person's eligibility for VAD assessed?

A person’s eligibility to access VAD must be independently assessed by at least two medical practitioners - a coordinating  practitioner and a consulting practitioner - who have completed mandatory training and meet other eligibility requirements.

The first assessment must be performed by the coordinating  practitioner, who must decide whether the person meets each of the eligibility criteria. That practitioner must also be satisfied that the person understands information about the person’s diagnosis and prognosis, treatment options, palliative care and treatment options, risks of having the VAD medication, and the VAD process.

If the person is eligible, a consulting practitioner must carry out a further independent assessment. If that practitioner confirms the person is eligible and the person wishes to continue with VAD, other legislative requirements must then be followed, including making a written declaration, and a final request to the coordinating practitioner.

There are timeframes that apply to each of the steps in the process. The Western Australian Department of Health has a produced a summary of the VAD process in Western Australia.

How and when can VAD be administered? 

A person can access VAD once the request and assessment process is complete, and the coordinating practitioner completes a final review form certifying that the person has decision-making capacity and an enduring request for VAD, and is acting voluntarily and without coercion.

The person, in consultation with and on the advice of the coordinating practitioner, may decide whether to self-administer the VAD medication, or whether it is to be given by an administrating practitioner. A person can only elect practitioner administration if the coordinating practitioner advises that self-administration would be inappropriate due to the person’s ability to self-administer; the person’s concerns about self-administering; or the method for administering the medication that is suitable to the person.

The administering practitioner may be either the coordinating practitioner, or another medical practitioner or nurse practitioner who is eligible for this role.

Self-administration

The VAD medication is able to be self-administered by the person at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes but cannot assist the person with self-administration. The person may change their mind at any time and choose not to take the medication.

A health practitioner or a witness is not be required to be present for self-administration but the person may choose to have a health practitioner present. The person must however appoint a contact person, who is required to return any unused or remaining VAD medication to an authorised disposer either after the person’s death, or if the person changes their mind about accessing VAD.

Practitioner administration

If the VAD medication is given by an administering practitioner, they must be satisfied at the time of administration that the person has decision-making capacity for VAD, is acting voluntarily and without coercion, and that the request is enduring.

Practitioner administration is required to take place in the presence of a witness, who must certify that the person’s request for access appeared to be free, voluntary and enduring; and that the medication was administered in their presence.

Do health practitioners have to participate in VAD?

Health practitioners with a conscientious objection to VAD have the right to choose not to participate in VAD. There is no obligation to:

  • participate in the request and assessment process,
  • prescribe, supply or administer VAD medication, or
  • be present at the time VAD medication is administered.

If a person makes a first request for VAD to a medical practitioner with a conscientious objection, the practitioner must immediately inform the person that they refuse the request. All medical practitioners (even if they object to VAD, or are not eligible to provide VAD) have to provide approved information to a person who makes a first request for VAD.

Is it lawful for a health practitioner to discuss VAD with a person?

A medical practitioner or nurse practitioner is able to initiate a discussion or suggest VAD to a person so long as they also inform the person, at the same time, about available treatment and palliative care options, and their likely outcomes.

Health care workers (a registered health practitioner, or another person who provides health or professional care services) are prohibited from initiating a discussion or suggesting VAD but can provide information about VAD on a person’s request.

What are the safeguards around VAD?

The Act contains a range of safeguards including:

  • Health care workers are prohibited from initiating a discussion about or suggesting VAD, unless they are a medical practitioner or nurse practitioner and provide information about treatment options and outcomes to the person at the same time.
  • A family member or carer cannot request VAD on somebody’s behalf.
  • The person requesting VAD must be given information about their diagnosis and prognosis, available treatment and palliative care options, and risks associated with taking the VAD medication (i.e. death).
  • The person must make at least three separate requests for VAD (a first request, a written declaration, and a final request).
  • The person’s decision to access VAD must be voluntary and made without coercion. This requirement will be confirmed at each stage of the request process, and prior to practitioner administration of VAD medication. If the medical practitioners who assess the person’s eligibility for VAD are unable to determine if the person is acting voluntarily and without coercion, they must refer the person to someone who has appropriate skills and training to decide. Health practitioners must also receive training about identifying and assessing risk factors for abuse or coercion as part of the mandatory training for VAD.
  • The person can change their mind about VAD, and discontinue a request for VAD at any time.
  • Regulations governing the prescription, dispensing and disposal of VAD medications.
  • Protection from criminal liability for persons who, in good faith, assist a person to access VAD, or are present when VAD medication is administered.
  • Protection from criminal and civil liability for health practitioners who act in accordance with the Act.
  • Offences (punishable by up to 7 years imprisonment) for anyone who induces another person to request or access VAD.

The Voluntary Assisted Dying Review Board is responsible for monitoring, reporting, and research.

Tasmania

In March 2021 the End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) was passed by the Tasmanian Parliament. Voluntary assisted dying (VAD) will commence in Tasmania on a date to be proclaimed, or on 23 October 2022, following an 18-month implementation period.

The Act provides for and regulates access to VAD, which is defined as 'the administration to a person, or the self-administration by a person, of a VAD substance'.

More information about VAD is available from Tasmania Health.

What are the eligibility criteria?

A person will be eligible to access VAD if they:

  • are aged 18 or over;
  • are an Australian citizen, permanent resident of Australia, or have been resident in Australia for at least 3 continuous years prior to making a first request, and have been ordinarily resident in Tasmania for 12 months before making the first request;
  • have decision-making capacity, meaning the person can:
    • understand information or advice that is reasonably required to be able to make the decision,
    • remember that information or advice to the extent necessary to make the decision,
    • use or evaluate the information or advice to make the decision, and
    • communicate the decision and the person’s opinions about the decision in some way; and
  • are acting voluntarily; and
  • are suffering intolerably in relation to a disease, illness, injury, or medical condition that:
    • is advanced, incurable and irreversible;
    • is expected to cause their death; and
    • will, unless an exemption is granted, cause death within 6 months (or in the case of a person with a neurodegenerative disease, illness or condition, within 12 months).

A person will be presumed to have capacity to make a VAD decision unless it can be shown otherwise.

A person who is suffering from a disability or mental illness alone will not be eligible for VAD. A person with a disability or mental illness may be eligible for VAD if they meet all the eligibility criteria.

A person may apply to the Commission for an exemption from the requirement that death occur within 6 months (or 12 months in the case of a person with a neurodegenerative disease, illness or condition). The Commission may grant an exemption if it is satisfied that the person's prognosis is such that this requirement should not apply. In reaching a decision, the Commission must examine the person's medical records, and seek advice from a medical practitioner with specialist knowledge about the person's medical condition.

The following decisions made by medical practitioners during the VAD process will be able to be reviewed by the Voluntary Assisted Dying Commission:

  • whether the person is, or is not, an Australian citizen or permanent resident; has not been resident in Australia for 3 years; or has not been ordinarily resident in Tasmania for 12 months;
  • whether the person does, or does not, have decision-making capacity; and
  • whether the person is, or is not, acting voluntarily.

How will a person's eligibility for VAD be assessed?

Two medical practitioners - a primary medical practitioner and a consulting medical practitioner - will assess wither a person is eligible for VAD. Both medical practitioners must have completed mandatory training and meet other eligibility requirements.

Before a person can request VAD, they must have been provided with approved information, including where the person can obtain information and advice about palliative care. If this information has been provided to a person they can make a first request, orally or in writing, to a medical practitioner. This starts the request and assessment process.

After receiving the person's first request, the primary medical practitioner must determine whether the person meets the eligibility criteria. If the person is eligible and wishes to continue with the process, they must make a second request, in writing, to the primary medical practitioner, who must determine for a second time whether the person is eligible for VAD.

If, after the second assessment, the person is determined to be eligible, a consulting medical practitioner will carry out a further independent assessment. If the consulting medical practitioner determines the person is eligible, other legislative requirements must be followed, including the person making a final request in writing to the primary medical practitioner.

After receiving a final request, the primary medical practitioner must again determine whether the person is eligible for VAD. Once this determination is made, the person must provide final permission, confirming that they want to access VAD.

There are timeframes that apply to each of the steps in the process. A flow chart of Tasmania’s VAD process is available from Tasmania Health.

How and when will VAD be administered?

A person will be able to access VAD once:

  • the request and assessment process (discussed above) is completed;
  • an administering health practitioner has been appointed (this may be either the primary medical practitioner, another medical practitioner, or a registered nurse who meets the eligibility criteria);
  • a VAD substance authorisation has been obtained from the Commission; and
  • the VAD substance has been prescribed.

For a person to be supplied a VAD substance, the administering health practitioner must check again that the person has decision-making capacity and is acting voluntarily. This must occur within 48 hours of the person giving final permission. The person can then give final permission for VAD in an approved form, which includes information about how the substance will be administered.

There are two types of administration: private-self administration, and administration that is not private self-administration.

Private self-administration

For this method of administration, the administering health practitioner must be satisfied that the person can self-administer (i.e. give themselves) the VAD substance. The administering health practitioner must complete and sign a private self-administration certificate. The person must then appoint an adult to be the contact person, who will be responsible for returning any unused or remaining VAD substance to the administering health practitioner, and notifying them of the person’s death.

The person may self-administer the VAD substance at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes. There is no requirement for a medical or other health practitioner, or a witness, to be present. The person may change their mind at any time and choose not to take the medication.

Where there is no private self-administration

If private self-administration is not appropriate due to the person's ability to self-administer, their concerns about doing this, or the method of administration, an administering health practitioner administration certificate can be issued.

This certificate enables the administering health practitioner to:

  • supply the VAD substance for self-administration by the person, while remaining in the same room or in close proximity to the person so the practitioner can assist the person if needed;
  • supply to and assist the person to self-administer the VAD substance (and remain in the same room or in close proximity to the person); or
  • administer the VAD substance to the person (and remain in the same room or in close proximity to the person).

Other people (e.g. family and friends) may be present when the person has the VAD substance.

Will health practitioners have to participate in VAD?

Health practitioners with a conscientious objection to VAD will have the right not to participate in VAD. There is no obligation for health practitioners to take on the role of primary medical practitioner, consulting medical practitioner, administering health practitioner, or (for pharmacists) to supply a VAD substance.

However, if a person makes a first request to access VAD, the medical practitioner must provide the person with the contact details of the VAD Commission, even if they have a conscientious objection.

If a medical practitioner refuses a person's first request, they must, as soon as is reasonably practicable (and within 7 days) advise the person that they refuse the first request; note the person's request (and the refusal to accept it) on the person's medical records; and notify the VAD Commission that they have refused the request.

Will it be lawful for a health practitioner to discuss VAD with a person?

It will be lawful for a medical practitioner to initiate a conversation about VAD if, at the same time, the medical practitioner also informs the person about the treatment and palliative care options available to the person, and the likely outcomes of those.

Other registered health practitioners (including nurse practitioners and registered nurses) can initiate conversations about VAD, but only if they inform the person during the conversation that a medical practitioner would be the most appropriate person with whom to discuss VAD and the person’s care and treatment options.

If a person requests information about VAD, nothing prevents another person (e.g. a health care worker) from providing information about the VAD process.

What will be the safeguards around VAD?

The Act contains a range of safeguards including:

  • There are limits on when medical practitioners and other registered health practitioners can initiate a discussion about VAD.
  • A family member or carer will not be able to request VAD on person's behalf.
  • The person requesting VAD must be provided with information about their diagnosis and prognosis, available treatment and palliative care options.
  • The person must make at least three separate requests for VAD (a first request, a second request, and a final request). The person also needs to give final permission before a VAD substance can be administered.
  • The person’s decision to access VAD must be voluntary and made without coercion. This requirement will be confirmed at each stage of the request process, and again prior to the person giving final permission.
  • A VAD substance authorisation must be issued by the Commission before any person is able to access VAD.
  • The person is able to change their mind about VAD at any time.
  • Medical practitioners, nurse practitioners and registered nurses participating in VAD must complete mandatory training and meet certain eligibility criteria.
  • Offences (punishable by fines or imprisonment of up to 5 years) for anyone who induces a person to access VAD.
  • Protections from liability for persons assisting a person, in good faith, to access VAD.

The Voluntary Assisted Dying Commission will be responsible for monitoring, reporting, research, reviews of eligible decisions, and issuing the VAD substance authorisation.

South Australia

In June 2021 the Voluntary Assisted Dying Act 2021 (SA) was passed by the South Australian Parliament. Voluntary assisted dying (VAD) will commence in South Australia on a date to be proclaimed. SA Health advises that implementation of VAD is 'likely to span 18 - 24 months (up to approx. early 2023).

The Act provides for and regulates access to VAD, which is defined as 'the administration of a voluntary assisted dying substance and includes steps reasonably related to such administration'.

What are the eligibility criteria?

A person will be eligible for VAD if they:

  • are aged 18 or over;
  • are an Australian citizen or permanent resident of Australia, and have been ordinarily resident in South Australia for 12 months before making a first request;
  • have decision-making capacity in relation to VAD, meaning the person can:
    • understand the information relevant to the decision to access VAD and the effect of the decision,
    • retain that information to the extent necessary to make the decision,
    • use or weigh that information as part of the process of making the decision, and
    • communicate the decision and the person's views and needs about the decision in some way; and
  • have a disease, illness, or medical condition that is:
    • incurable, advanced, progressive, and will cause death;
    • expected to cause their death within 6 months (or in the case of a person with a neurodegenerative disease, illness or condition, within 12 months);
  • are suffering intolerably because of the disease, illness, or medical condition; and
  • are acting freely and without coercion.

A person will be presumed to have capacity to make a VAD decision unless it can be shown otherwise.

A person who is suffering from a disability or mental illness alone will not be eligible for VAD. A person with a disability or mental illness may be eligible for VAD if they meet all the eligibility criteria.

A person may apply to the South Australian Civil and Administrative Tribunal for a review of a decision by their coordinating medical practitioner or consulting medical practitioner that they:

  • are, or are not, ordinarily resident in South Australia;
  • were or were not ordinarily resident in South Australia for 12 months at the time of making the first request; or
  • do, or do not, have decision-making capacity in relation to VAD.

How will a person's eligibility for VAD be assessed?

Two medical practitioners - a coordinating medical practitioner and a consulting medical practitioner - will assess whether a person is eligible for VAD. Both medical practitioners must have completed mandatory training and meet other eligibility requirements.

After receiving the person's first request for VAD, the coordinating medical practitioner will determine whether the person meets the eligibility criteria. This involves assessing whether the person meets the eligibility criteria, understands certain information, is acting voluntarily and without coercion, and is making an enduring request.

If the coordinating medical practitioner determines that the person is eligible for VAD, a consulting medical practitioner will then carry out a further independent eligibility assessment. If the consulting medical practitioner determines the person is eligible, other legislative requirements must be followed, including that the person must make a final request for VAD.

The coordinating medical practitioner must certify in a final review form that the request and assessment process is complete. The person must then appoint a contact person (e.g. a family member or friend).

There are timeframes that apply to each of the steps in the process.

How and when will VAD be administered?

There are two types of administration: Self-administration, and practitioner administration.

Self-administration

The coordinating practitioner must apply for a VAD permit for the person (a ‘self-administration permit’). This permit authorises:

  • the coordinating medical practitioner to prescribe and supply the VAD substance to the person for self-administration;
  • the person to obtain, possess, store, use and self-administer the VAD substance; and
  • the contact person to possess, store, carry, transport and return unused or remaining VAD substance to the dispensing pharmacy.

After a permit has been issued, the person may self-administer the VAD substance, at a time or place or their choosing. There is no requirement for a medical or other health practitioner, or a witness, to be present for self-administration, but the person may choose to have a health practitioner present. Other people (e.g. family and friends) may be present if the person wishes, but cannot assist the person with self-administration.

Practitioner administration

If a person is physically incapable of self-administering or digesting the medication (e.g. those with physical disabilities that limit their ability to self-administer or swallow a substance) the coordinating medical practitioner may apply for a practitioner administration permit. This authorises that practitioner to administer the VAD substance to the person.

A witness must be present when the VAD substance is administered by a practitioner. The witness must certify that the person appeared to have decision-making capacity, was acting voluntarily and without coercion, and that their request appeared to be enduring. Other people may also be present if the person wishes.

Will health practitioners have to participate in VAD?

Health practitioners with a conscientious objection to VAD will have the right not to participate in VAD. They can choose not to:

  • provide information about VAD;
  • participate in the request and assessment process;
  • supply, prescribe or administer a VAD substance;
  • be present at the time of administering a VAD substance; and
  • dispense a prescription for a VAD substance.

Do health services and residential facilities have to provide VAD, or help a person access it?

Health services and residential facilities have the right to refuse to participate in VAD, but will still have some obligations.

Generally, health services (e.g. private hospitals and private institutions) who refuse to participate in VAD must ensure that patients are advised of the service’s refusal to permit VAD; have arrangements in place to transfer the person to other facilities so they can access VAD; and take reasonable steps to facilitate such a transfer.

Residential facilities (e.g. nursing homes, aged care homes and retirement villages) will also have specific obligations. Generally, residential facilities must allow all residents, whether temporary or permanent, to:

  • access information about VAD (including facilitating access in situations where a person requests information, but the facility does not provide it), and
  • make requests for VAD.

This includes providing access to a health practitioner or other person to provide this information or receive requests. For VAD requests, if the health practitioner is unavailable to attend, the facility must arrange the transfer of the resident instead.

Where a permanent resident (i.e. a person who lives at the facility on an ongoing basis) wishes to access VAD, facilities must:

  • allow a medical practitioner to access the resident at the facility to conduct an eligibility assessment, or
  • if the medical practitioner is unavailable to attend the facility, take reasonable steps to facilitate the resident's transfer elsewhere for an assessment.

If the person is not a permanent resident, the facility must facilitate the transfer of the person to a place where the first assessment can be carried out. However, if the transfer would not be reasonable (e.g. because it might cause the person serious harm, undue delay or prolonged suffering) the facility must allow a medical practitioner reasonable access to the person at the facility.

Will it be lawful for a health practitioner to discuss VAD with a person?

It is unlawful for a registered health practitioner to initiate a discussion about VAD with a person, or suggest VAD to them. However, they may provide information about VAD if a person requests it.

What will be the safeguards around VAD?

The Act contains a range of safeguards including:

  • Registered health practitioners are prohibited from initiating a discussion about VAD. This is designed to ensure that a person’s request for VAD is voluntarily made.
  • A family member or carer cannot request VAD on somebody’s behalf.
  • The person will need to make at least three separate requests for VAD (a first request, a written declaration, and a final request).
  • The person’s decision to access VAD must be made voluntarily, freely and without coercion. This requirement will be confirmed at each stage of the request process, and again prior to the person making an administration request.
  • During the first assessment and consulting assessment, the person must be provided with information, including information about their diagnosis and prognosis, available treatment and palliative care options.
  • The person is able to change their mind about VAD at any time.
  • A permit must be issued by the Chief Executive before any person is able to access VAD.
  • Medical practitioners participating in providing VAD must undergo mandatory approved training and meet certain eligibility criteria.
  • Offences (punishable by fines or imprisonment of up to 5 years) for anyone who induces a person to access VAD.
  • Protections from liability for persons assisting another person, in good faith, to access VAD.

The VAD Review Board will be responsible for monitoring, reporting, research, and reviews of eligible decisions.

Queensland

On 16 September 2021 the Voluntary Assisted Dying Act 2021 (Qld) was passed by the Queensland Parliament. Voluntary assisted dying (VAD) will commence in Queensland on 1 January 2023, following an implementation period.

The new laws provide for and regulate access to VAD, which is defined as 'the administration of a voluntary assisted dying substance and includes steps reasonably related to that administration'.

More information about VAD is available from Queensland Health.

What are the eligibility criteria?

In Queensland, a person will be eligible for VAD if they:

  • are aged 18 or over;
  • have a disease, illness, or medical condition that is:
    • advanced, progressive, and will cause death;
    • expected to cause their death within 12 months;
  • are suffering intolerably because of the disease, illness, or medical condition;
  • have decision-making capacity in relation to VAD, meaning the person is capable of
    • understanding the nature and effect of decisions about access to VAD,
    • freely and voluntarily making decisions about access to VAD, and
    • communicating decisions about VAD in some way;
  • are acting voluntarily and without coercion;
  • are an Australian citizen, permanent resident of Australia, have been ordinarily resident in Australia for at least 3 years prior to making the first request, or they are granted an Australian residency exemption; and
  • have been ordinarily resident in Queensland for 12 months before making a first request, or they are granted a Queensland residency exemption.

An Australian or Queensland residency exemption will be granted if the person has a substantial connection to Queensland and there are compassionate grounds for granting it.

A person will be presumed to have capacity to make a VAD decision unless it can be shown otherwise.

A person who is suffering from a disability or mental illness alone will not be eligible for VAD. A person with a disability or mental illness may be eligible for VAD if they meet all the eligibility criteria.

A person may apply to the Queensland Civil and Administrative Tribunal for a review of a decision by their coordinating practitioner or consulting practitioner that they:

  • are, or are not, ordinarily resident in Australia for 3 years prior to the first request;
  • were, or were not, ordinarily resident in Queensland for 12 months at the time of making the first request;
  • do, or do not, have decision-making capacity in relation to VAD; or
  • are, or are not, acting voluntarily and without coercion.

How will a person's eligibility for VAD be assessed?

Two medical practitioners - a coordinating practitioner and a consulting practitioner - will assess whether a person is eligible for VAD. Both medical practitioners must have completed mandatory training and meet other eligibility requirements.

After receiving the person's first request for VAD, the coordinating practitioner will determine whether the person is eligible for VAD. This involves assessing whether the person meets the eligibility criteria and understands certain information.

If the coordinating practitioner determines that the person is eligible for VAD, a consulting practitioner will then carry out a further independent eligibility assessment. If the consulting practitioner determines the person is eligible, other legislative requirements must be followed, including that the person must make a second request and then a final request for VAD.

There are timeframes that apply to each of the steps in the process.

How and when will VAD be administered?

A person can access VAD once the request and assessment process is completed, and the coordinating practitioner completes a final review form.

There are two types of administration: self-administration and practitioner administration. The person, in consultation with and on the advice of the coordinating practitioner, may decide whether to self-administer the VAD substance or whether it is to be given by an administering practitioner. A person can only choose practitioner administration if self-administration is inappropriate because of: the ability of the person to self-administer the VAD substance; their concerns about self-administering the VAD substance; and/or the method that is suitable for the person.

The administering practitioner may be either the coordinating practitioner, or another medical practitioner, nurse practitioner, or registered nurse to whom the role has been transferred. They must meet the eligibility requirements and have completed the mandatory training.

Self-administration

The VAD substance can be administered by the person at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes, but cannot assist the person with self-administration. The person may change their mind at any time and choose not to take the medication.

There is no requirement for a health practitioner or witness to be present for self-administration. However, the person must appoint a contact person who has responsibilities including notifying the coordinating practitioner when the person dies. The contact person may also be contacted by the Voluntary Assisted Dying Review Board for information.

Practitioner administration

If self-administration is inappropriate, the person may make a practitioner administration decision. This enables the administering practitioner to administer the VAD substance to the person if the person has decision-making capacity and is acting voluntarily and without coercion.

An eligible witness must be present when the VAD substance is administered by a practitioner. The witness must certify that the person appeared to be acting voluntarily and without coercion. Other people may also be present if the person wishes.

The person must appoint a contact person who must inform the coordinating practitioner if the person dies as a result of a cause other than the administration of the VAD substance. The contact person may also be contacted by the Voluntary Assisted Dying Review Board for information.

Will health practitioners have to participate in VAD?

Registered health practitioners with a conscientious objection to VAD will have the right not to participate in VAD. They can refuse to:

  • provide information about VAD;
  • participate in the request and assessment process;
  • participate in an administration decision;
  • supply, prescribe or administer a VAD substance; or
  • be present at the time of administering a VAD substance.

If a person makes a first request for VAD to a medical practitioner with a conscientious objection, the practitioner must immediately inform the person that they refuse the request. All medical practitioners (even if they object to VAD, or are not eligible to provide VAD) have to provide the following to a person who makes a first request:

  • information about other health practitioners, providers, or services that may be able to assist; and
  • the details of a VAD Care Navigator Service that is able to provide the person with information (including name and contact details) about a health practitioner, health service provider, or service who may be able to assist the person.

Speech pathologists who have a conscientious objection to VAD also have specific obligations, including that they must inform their employer and others of their conscientious objection, and must not impede the person’s access to speech pathology services in relation to VAD.

Do health services and residential facilities have to provide VAD, or help a person access it?

Facilities providing health services, residential aged care services or personal care services have the right to refuse to participate in VAD, but will still have some obligations. These obligations depend on the stage of the VAD process, and also whether the person is a permanent resident or a non-permanent resident at the facility.

Generally, facilities will be required to do the following:

  • VAD requests made by both permanent residents and non-permanent residents: Allow reasonable access into the facility by medical practitioners and witnesses so that the person is able to make a request, or facilitate a transfer of the person to a place where the request can be made.
  • VAD assessments for permanent residents: Allow reasonable access into the facility by a medical practitioner, or facilitate a transfer of the person to a place where the assessment can be carried out.
  • VAD assessments for non-permanent residents: Facilitate a transfer of the person to a place where the assessment can be carried out, or, if this would not be reasonable, allow reasonable access to the facility by the medical practitioner.
  • VAD administration for permanent residents: Allow reasonable access to the facility by a medical practitioner and witness (for practitioner administration), or not hinder access by the person to a VAD substance (self-administration).
  • VAD administration for non-permanent residents: Facilitate a transfer of the person to a place where the VAD substance can be administered. If it would not be reasonable to transfer the person, facilities must allow reasonable access to the facility by a medical practitioner and witness (for practitioner administration), or not hinder access by the person to a VAD substance (self-administration).

Will it be lawful for a health practitioner to discuss VAD with a person?

Medical practitioners and nurse practitioners may initiate a discussion with a person about VAD if, at the same time, they inform the person about the treatment options and palliative care options available, and the likely outcomes of treatment.

Health care workers (a registered health practitioner, or another person who provides health or professional care services) are prohibited from initiating a discussion or suggesting VAD, but can provide information about VAD on a person’s request.

What will be the safeguards around VAD?

The Act contains a range of safeguards including:

  • Health care workers are prohibited from initiating a discussion about VAD, except for medical practitioners and nurse practitioners (if certain information is provided at the same time). This is designed to ensure that a person’s request for VAD is voluntarily made.
  • A family member or carer cannot request VAD on somebody’s behalf.
  • The person will need to make at least three separate requests for VAD (a first request, a second request, and a final request).
  • The person’s decision to access VAD must be made voluntarily and without coercion. This requirement will be confirmed at each stage of the request process, and again prior to the person making an administration decision.
  • There is a waiting period of 9 days from the first request before a person can make a final request. This ensures the person’s request is enduring.
  • During the first assessment and consulting assessment, the person must be provided with information, including information about their diagnosis and prognosis, available treatment and palliative care options.
  • The person is able to change their mind about VAD at any time.
  • Medical practitioners, nurse practitioners, and registered nurses participating in providing VAD must undergo mandatory approved training and meet certain eligibility criteria.
  • Offences (punishable by fines or imprisonment of up to 7 years) for anyone who induces a person to access VAD.
  • Protections from liability for persons assisting another person, in good faith, to access VAD.

The VAD Review Board will be responsible for monitoring, reporting, research, and review of eligible decisions.

Legality of other practices involving dying

Is suicide legal in Australia?

Yes. Suicide and attempted suicide were originally crimes, but are now legal in Australia.

Is it legal to assist a person to commit suicide?

No. Though it is not a criminal offence for a person to take their own life, assisting or encouraging (i.e. aiding, abetting, procuring, counselling, commanding or inciting) another person to commit suicide is illegal in all Australian States and Territories. This is so even where the person requested assistance to die, and regardless of whether the assistance is provided by a relative, friend or medical professional. It is also an offence to take active steps to bring about the death of another person, even where the deceased requested the action causing their death.

The intentional killing of another person, whether at their request (e.g. assisting their suicide) or not technically amounts to the crime of murder. The alternative charge (or verdict) of manslaughter is possible where an unlawful killing occurs but an intention to kill cannot be proven, or there are mitigating circumstances.

Voluntary assisted dying in Victoria and Western Australia are an exception. In those States the legislation protects authorised health practitioners who provide VAD in accordance with the Act, and also protects others (including other health practitioners, family, or carers) who assist or facilitate a request for VAD.

What if the assistance is given for merciful reasons, or the person consents to their life being ended?

A person’s motives for assisting or causing another person to die, even if merciful or compassionate (such as to relieve pain) are not relevant to whether they have committed a crime. This is also the case where the person requests to die - for example, a person asks his or her doctor, or their spouse or partner, to end their life. In those situations, the person who causes the death may still be charged with and found guilty of murder or manslaughter.

However, the person’s motives are relevant in cases where the prosecution decides to charge a person with a lesser offence, or not to bring charges at all (this is known as the exercise of prosecutorial discretion. See for example the 2019 case of Police v O). Motives are also relevant in sentencing a person who acted out of compassion, at the request of another.

Have people been prosecuted for assisting someone to die?

Yes. Numerous prosecutions have been brought against family and friends for assisting with or causing the death of a loved one. Cases have also been brought against medical practitioners. Many of these cases are prosecuted as aiding and abetting suicide, while some cases have involved charges of murder or attempted murder.

The prosecution can choose whether they prosecute for assisted suicide or for murder or manslaughter. In some cases the prosecution may exercise its discretion not to prosecute e.g. on public interest grounds (see the 2019 case of Police v O). Factors that may be considered in deciding which charge to bring include:

  • the level of assistance provided by the accused (e.g. did they actually cause the death, or were they only involved in the preparation for the suicide);
  • whether the accused pleaded guilty early on, and assisted authorities;
  • the mental capacity of the deceased (if the deceased was not mentally competent, the appropriate charge is likely to be murder or manslaughter rather than assisting suicide); and
  • whether there was a suicide pact between the accused and the deceased, and the accused survived.

Some Australian cases involving prosecutions for assisted suicide are discussed below.

Intersection of the laws on assisted dying, medical treatment decision-making and palliative medication

Medical treatment decision-making

Is a health professional legally liable if he or she fails to provide medical treatment to a person?

Health professionals have a legal duty to provide a person in their care with the ‘necessaries of life’, including medical treatment. If a health professional breaches this duty, they may be criminally liable for any consequences to the person’s life, health or well being.

However, this duty will not apply where the person has capacity and refuses life-sustaining treatment either at the time the treatment is offered or in an Advance Care Directive, or where the treatment is considered by the doctor to be inappropriate in the circumstances (e.g. futile or non-beneficial). In these cases health professionals are under no duty to provide treatment, even though the person will likely die without it.

Is a health professional legally liable when he or she withholds or withdraws life-sustaining treatment?

No. A health professional does not unlawfully kill a person when he or she withholds or withdraws life-sustaining treatment in one of the situations outlined in the previous question. In those situations the person is considered to have died naturally from their medical condition or disease.

For more information visit our Withholding and withdrawing life-sustaining treatment from adults webpage.

Refusal of food and drink

Can a person refuse ordinary food and drink even it might lead to their death?

Yes. A person with capacity can lawfully refuse ordinary food and drink, as well as artificial nutrition and hydration (for example, given through a tube into the person’s stomach).

If the person dies as a result of refusing food or drink, the person will not have committed suicide. Rather, the person will have exercised his or her lawful right to refuse food or drink.

Does a health professional or other person assist dying by allowing someone to refuse food or drink?

No. If the person has capacity to refuse food or drink it is lawful to respect their refusal.

Providing pain and symptom relief

Does a health professional assist dying when he or she provides pain and symptom relief and a patient’s death follows?

No. Giving appropriate pain or symptom relief is legal so long as the health professional’s intention is to reduce or relieve the person’s pain and suffering, not hasten death. Health professionals are protected by the doctrine of double effect. For further information visit our Legal protection for providing pain and symptom relief webpage.

What is voluntary palliated starvation? Is it legal in Australia?

Voluntary palliated starvation (VPS) occurs when person with capacity refuses to eat or drink (known as voluntary stopping eating and drinking, or VSED) and receives palliative medication to relieve any pain, suffering or symptoms she or he experiences from dying due to a lack of food and water. In some situations it has been used by terminally-ill people as an alternative to assisted dying.

It is lawful for a person with capacity to refuse to eat or drink even if it will result in their death. While the legal status of providing palliative medication during this process has not been considered directly by the Australian courts, it is likely that providing palliative care to address pain and other symptoms caused by VSED would be lawful.

VPS is discussed further on our Legal protection for providing pain and symptom relief webpage.

Legality of assisted dying outside Australia

Is assisted dying legal outside Australia?

Yes. Assisted dying (generally physician-assisted suicide i.e. self-administration) is legal in a number of countries throughout the world. Different terminology is used in different countries:

  • New Zealand: Both self-administration and practitioner administration of VAD are legal for people 18 or over who have a terminal illness that is likely to end their life within 6 months, and is causing unbearable suffering. For more information visit the New Zealand Ministry of Health.
  • the United States: Physician-assisted suicide is legal in these States only:
    • Oregon, Washington, Vermont, California, Colorado, Hawaii, New Jersey, Maine, the District of Columbia, and New Mexico. In these States, lethal medication can be prescribed by a doctor to a person over 18 who is suffering from a terminal illness and will die from that condition within six months.
    • Montana: The Montana Supreme Court confirmed in the case of Baxter v Montana that:
      • Neither Montana law or public policy prohibit physician-assisted suicide; and
      • Doctors who assist a person to die (i.e. by prescribing lethal medication) are protected from prosecution for homicide offences, so long as the person consented to the doctor aiding him or her to die.
  • Canada: Medical Assistance in Dying (MAiD) is lawful if the eligibility criteria are met and safeguards are followed. Both physicians and nurse practitioners are able to provide MAiD. For more information about MAiD visit End-of-Life Law & Policy in Canada.
    • In Quebec only physicians are able to provide MAiD. They can only administer MAiD to individuals who are at the ‘end of life’.
  • Colombia: Voluntary euthanasia is legal for terminally ill people.
  • The Netherlands: Both self-administration and practitioner administration of VAD are legal where a person has lasting and unbearable suffering.
  • Belgium: Both self-administration and practitioner administration of VAD are legal for people who suffer untreatable, constant and unbearable physical or mental suffering.
  • Luxembourg: Both self-administration and practitioner administration of VAD are legal for people who suffer a terminal or incurable illness. Assisted suicide is also legal.
  • Switzerland: Practitioner administration of VAD and assisted suicide for selfish motives are illegal under Swiss criminal law. However, assisting a suicide for 'unselfish' motives is not a criminal offence, even if the person does not have a terminal illness. There is no legislation regulating the process.
  • Germany: Euthanasia is illegal. Assisted suicide is lawful, following a decision of the German Constitutional Court in 2020. As in Switzerland, there is no law regulating the process or restricting who may have access to assistance to die.
  • Spain: In March 2021 Spain's parliament passed a law to legalise both euthanasia and self-administered assisted dying. This law, which will come into effect in June 2021, allows a person who is suffering intolerably from a “serious or incurable illness” or a “chronic or incapacitating” condition to request help dying.
  • Austria: Both euthanasia and assisted suicide are currently unlawful. However, from 1 January 2022 assisted suicide will be lawful. This follows a decision of the Constitutional Court of Austria in December 2020, which declared that a criminal prohibition on assisting suicide is unconstitutional, because it allows for no exception in the case of assisted dying.

Is it legal to travel outside of Australia to seek assistance to die?

The legalisation of assisted dying in some countries has resulted in some people travelling overseas, in particular to Switzerland, to receive assistance to die. Whether or not it is lawful for Australians to accompany a person to travel overseas for this purpose has not yet been addressed in Australia.

In the United Kingdom case of Local Authority v Z [2004, High Court of Justice] the court considered whether a person suffering from cerebellar ataxia could travel from Britain to Switzerland to seek euthanasia. The local welfare authority sought an injunction to prevent the person from leaving Britain. The court found that the local authority had no duty to prevent the person travelling to Switzerland. The court also considered whether the person’s husband, who had agreed to help her travel to Switzerland, was assisting a suicide and should be prosecuted. The court decided it was a matter for the Director of Public Prosecutions (DPP) whether to prosecute the husband.

Following this case, the United Kingdom DPP created guidelines about when they will or will not prosecute a person who accompanies another overseas to commit suicide. The guidelines state that a person commits an offence under the United Kingdom’s Suicide Act 1961, punishable by up to 14 years imprisonment, if he or she encourages or assists the suicide or attempted suicide of another person. However, the consent of the DPP is required before a person can be prosecuted.

Although there are no similar guidelines in Australia, the United Kingdom’s guidelines may possibly be considered if a similar legal situation arose in Australia.

Key cases

Police v O (2019)

The deceased and her husband, O, had been in a loving relationship for over 25 years. At the time of the deceased’s death she was 68 years old, and O was 63 years old. They had both worked as nurses. In 2016 the deceased developed motor neurone disease, which leads to a loss of mobility, reduced respiratory function and ultimately death. In late 2018 the disease was advanced and the deceased had researched how to end her life. She attended an education evening run by an organisation which taught people suffering terminal illness how to end their life. In March 2019, O assisted her to commit suicide (by using an item that he had modified) while she was still able to physically take her own life. O was charged with aiding her suicide.

Though the evidence offered reasonable prospects of O’s conviction, the ACT Director of Public Prosecutions (DPP) decided to withdraw the charge against O on the grounds it was not in the public interest to prosecute him. The reasons for this included:

  • The deceased and O were in their sixties and had a long, loving and supportive relationship.
  • At the time of her death the deceased had lost all independent functioning (including walking, self-care and toileting). Her death was imminent (e.g. within months).
  • The deceased was of sound mind and had told a number of people over a period of time that she wished to end her life while she was still mobile and able to do so, to avoid a distressing death.
  • There was no financial gain to O from aiding the deceased’s suicide.
  • O’s assistance ‘was minimal, motivated wholly by love and compassion, and designed to ensure that the deceased’s death was quick and painless’.
  • O encouraged the deceased to delay ending her life and tried to dissuade her again on the evening she died. It was also noted that the deceased’s death caused him significant trauma.

The DPP considered the consequences of a conviction would ‘be unduly harsh and oppressive in the circumstances’, and exercised his discretion to withdraw the charge.

R v Dowdle [2018] NSWSC 240

Dowdle killed her 27-year-old son with a dose of sedatives combined with asphyxiation with a plastic bag. Her adult son had been severely injured in a car accident, and partially as a result of that accident had developed significant substance abuse problems. He was physically and verbally abusive to her, but Dowdle gave as the reason for killing him that she could not bear to see him continually in pain. Dowdle herself had been suffering a major depressive disorder at the time.

Dowdle was charged with murder but pleaded a defence of substantial impairment so that the charge was reduced to manslaughter. The judge took into account her extensive attempts to advocate for her son to receive appropriate treatment and facilities, albeit such facilities were not available. He sentenced her to three years’ imprisonment with a non-parole period of two years. She was released immediately as she had already served the two years.

R v Klinkermann [2013] VSC 65

Mrs Klinkermann was diagnosed with severe dementia and Parkinson’s disease in 2006.  In 2012 her condition had deteriorated and she could not chew of swallow food or liquid easily. She was assessed as requiring full-time palliative care, but her husband would not agree to this. Mr Klinkermann adored his wife, had been totally devoted to her care (looking after her most of the time), and wanted to continue caring for her.

In August 2012 (at which time Mrs Klinkermann was 84 years old and Mr Klinkermann was aged 73) Mr Klinkermann gave her a sleeping tablet and took several himself. He attempted to kill both of them by way of carbon monoxide poisoning in their home. This was not successful, and both husband and wife were found unconscious by a visiting nurse.

Mr Klinkermann was charged with the attempted murder of his wife. He was sentenced to an 18-month community corrections order, with the conditions that he receive medical and mental health treatment, and rehabilitation.

R v Justins [2011] NSWSC 568

Justins was the long-term partner of Wylie. Jennings was their friend. Wylie suffered from Alzheimer’s disease and six months prior to his death, he had attempted suicide by cutting his wrists. He stated he wanted to go to Switzerland to have assistance in committing suicide through an organization called Dignitas. However, Dignitas rejected Wylie’s application on the grounds Wylie may not have the capacity to make the decision to end his own life. Wylie then attempted suicide again.

Jennings then travelled to Mexico to source the drug Nembutal (which is illegal in Australia) for the purpose of ending Wylie’s life. Wylie was provided with the Nembutal, drank it voluntarily and died. Justins and Jennings then concocted alibis and denied any connection with Wylie’s death. Prior to Wylie’s death, and with Justins’ assistance, Wylie had changed his will to provide Justins with a much greater benefit, to the exclusion of Wylie’s daughters.

The jury found Justins and Jennings guilty of manslaughter. Justins received a sentence of 2.5 years imprisonment with a non-parole period of 22 months to be served by periodic detention. Justins’ conviction was overturned on appeal and she pleaded guilty to the lesser offence of aiding and abetting suicide. She received no further punishment as, by that time, she had served 22 months in prison. Jennings committed suicide prior to being sentenced.

R v Cox (1992) 12 BMLR 38

Boyes, an elderly lady, was in agonising pain from rheumatoid arthritis. She had known Dr Cox for 13 years and he said she would not suffer. After many unsuccessful attempts to control her pain Boyes begged Dr Cox to kill her. Dr Cox administered a large dose of potassium chloride and Boyes died shortly after. Dr Cox was charged with attempted murder.

During the trial the jury was instructed on the doctrine of double effect: Dr Cox could only be convicted if his primary intention was to cause her death. Significantly in this case, the potassium chloride did not have any curative or pain-relieving properties and was estimated to be twice the lethal dose. Dr Cox was convicted of attempted murder as his intention was not to relieve Boyes’ pain or symptoms through this medication.

R v Adams (Bodkin) (Unreported, Central Criminal Court, Devlin J, 9 April 1957)

Dr Adams was charged with the murder of an elderly female, Morrell. The Crown argued that the very large quantities of medication given to Morrell showed that Dr Adams must have intended to kill her. There was conflicting evidence about Morrell’s level of pain, and whether the doses of medication given could have been medically appropriate. Dr Adams was acquitted by the jury.

Justice Devlin famously stated: ‘if the first purpose of medicine – the restoration of health – could no longer be achieved, there was still much for the doctor to do, and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or perhaps even longer’.

Further resources

Publications

Ben White and Lindy Willmott, Voluntary assisted dying research: a policy briefing. Australian Centre for Health Law Research, Queensland University of Technology, 2021.

Ben White, Lindy Willmott, Katrine Del Villar et al. 'Who is eligible for voluntary assisted dying? Nine medical conditions assessed against five legal frameworks' (2021) University of New South Wales Law Journal. (In Press)

Lindy Willmott, Katrine Del Villar, and Ben White, 'Voluntary assisted dying in Victoria, Australia: A values-based critique' in Sue Westwood (ed), Regulating the End of Life: Death Rights (Routledge, 2021) 55-73.

Lindy Willmott, Ben White, Marcus Sellars and Patsy Yates, 'Participating doctors’ perspectives on the regulation of voluntary assisted dying in Victoria: a qualitative study' (2021) Medical Journal of Australia.

Rosalind McDougall, Ben White, Danielle Ko et al, 'Junior doctors and conscientious objection to voluntary assisted dying: ethical complexity in practice' (2021) Journal of Medical Ethics.

Lindy Willmott, Ben White, Rachel Feeney et al, 'Intentional hastening of death through medication: A case series analysis of Victorian deaths prior to the Voluntary Assisted Dying Act 2017' (2021) Internal Medicine Journal.

Ben White, Lindy Willmott,  Eliana Close et al, 'Legislative Options to Address Institutional Objections to Voluntary Assisted Dying in Australia' (2021) 3 University of New South Wales Law Journal Forum 1-19.

Jayne Hewitt, Ben White, Ben, Katrine Del Villar et al, 'Voluntary assisted dying in Victoria: Why knowing the law matters to nurses' (2021) 28(2) Nursing Ethics 221-229.

Ben White, Lindy Willmott, Marcus Sellars, Patsy Yates. 'Prospective oversight and approval of assisted dying cases in Victoria, Australia: a qualitative study of doctors’ perspectives' (2021) BMJ Supportive and Palliative Care.

Ben White, Lindy Willmott, Eliana Close et al. 'Development of voluntary assisted dying training in Victoria, Australia: A model for consideration'. (2021) 36(3) Journal of Palliative Care 162-167.

Jodhi Rutherford, Lindy Willmott and Ben White. 'Physician attitudes to voluntary assisted dying: a scoping review'. (2021) 11(2) BMJ Supportive and Palliative Care 200-208.

Katrine Del Villar, Eliana Close, Rachel Hews, et al. 'Voluntary assisted dying and the legality of using a telephone or internet service: The impact of Commonwealth ‘Carriage Service’ offences'. (2020) Monash University Law Review. (In Press)

Jodhi Rutherford, 'Conscientious participants and the ethical dimensions of physician support for legalised voluntary assisted dying' (2020) Journal of Medical Ethics.

Jodhi Rutherford, 'Doctors and the Voluntary Assisted Dying Act 2017 (Vic): Knowledge and General Perspectives' (2020) 27(4) Journal of Law and Medicine 952-966.

Ben White et al, 'Assisted dying and evidence-based law-making: A critical analysis of an article’s role in New Zealand’s referendum' (2020) 133(1520) New Zealand Medical Journal 83-90.

Ben White, Katrine Del Villar, Eliana Close and Lindy Willmott, ‘Does the Voluntary Assisted Dying Act 2017 (Vic) Reflect Its Stated Policy Goals?’ (2020) 43(2) University of New South Wales Law Journal.

Andrew McGee, 'Voluntary assisted dying: should conscientious objection be unconditional?' (2020) 50 Journal of Pharmacy Research and Practice 117-121.

Katrine Del Villar, Lindy Willmott and Ben White, ‘Suicides, Assisted Suicides and 'Mercy Killings': Would Voluntary Assisted Dying Prevent these 'Bad Deaths'?’ (2020) 46(2) Monash University Law Review.

Lindy Willmott et al, 'Restricting conversations about voluntary assisted dying: Implications for clinical practice' (2020) 10(1) BMJ Supportive and Palliative Care 105.

Ben White and Lindy Willmott, ‘A Model Voluntary Assisted Dying Bill’ (2019) 7(2) Griffith Journal of Law and Human Dignity 1.

Ben White and Lindy Willmott, ‘Evidence-based law-making on voluntary assisted dying’ (2019) Australian Health Review 1.

Bregie Onwuteaka-Philipsen, Lindy Willmott and Ben White, 'Regulating voluntary assisted dying in Australia: Some insights from the Netherlands' (2019) 211(10) Medical Journal of Australia 438.

Ben White, Lindy Willmott and Eliana Close, ‘Victoria’s voluntary assisted dying law: Clinical implementation as the next challenge’ (2019) 210(5) Medical Journal of Australia 207.

Ben White and Lindy Willmott, Voluntary Assisted Dying Bill 2019 (Unpublished, 2019).

Carmelle Peisah, Linda Sheahan and Ben White, ‘The biggest decision of them all - death and assisted dying: capacity assessments and undue influence screening’ (2019) 49(6) Internal Medicine Journal 792.

Andrew McGee et al, ‘Informing the euthanasia debate: Perceptions of Australian politicians' (2018) 41(4) University of New South Wales Law Journal 1368.

Ben White and Lindy Willmott, 'Future of assisted dying reform in Australia' (2018) Australian Health Review 616.

Cameron Stewart,  ‘Euthanasia, Suicide and Assisted Dying’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Law Book Co, 3rd ed, 2018) 526.

Lindy Willmott and Ben White, ‘Assisted dying in Australia: A values-based model for reform’ in Ian Freckleton and Kerry Petersen (eds), Tensions and Traumas in Health Law (Federation Press, 2017) 479.

Andrew McGee and Franklin Miller, 'Advice and care for patients who die by voluntarily stopping eating and drinking is not assisted suicide' (2017) 15(222) BMC Medicine 1.

Lindy Willmott et al, ‘(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics’ (2016) 39(1) University of New South Wales Law Journal 1.

Neera Bhatia, Ben White and Luc Daliens, ‘How should Australia respond to media-publicised developments on euthanasia in Belgium?’ (2016) 23(4) Journal of Law and Medicine 835.

Ben White, Lindy Willmott and Julian Savulescu, ‘Voluntary palliated starvation: A lawful and ethical way to die?’ (2014) 22(2) Journal of Law and Medicine 376.

Bob Douglas, Lindy Willmott and Ben White, The right to choose an assisted death: Time for legislation? (Report, January 2013).

Ben White and Lindy Willmott, 'How should Australia regulate voluntary euthanasia and assisted suicide?' (2012) 20(2) Journal of Law and Medicine 410.

Jocelyn Downie and Ben White, ‘Prosecutorial discretion in assisted dying in Canada: A proposal for charging guidelines’ (2012) 6(2) McGill Journal of Law and Health 113.

Ben White and Jocelyn Downie, ‘Prosecutorial guidelines for voluntary euthanasia and assisted suicide: Autonomy, public confidence and high quality decision-making’ (2012) 36(2) Melbourne University Law Review 656.