NSW’s Right to Die: Understanding the Voluntary Assisted Dying Laws
The New South Wales Voluntary Assisted Dying Act 2022 has been in play since 28 November 2023, giving eligible terminally ill adults the legal right to end their lives with medical assistance under strict safeguards. The legislation positioned NSW alongside other Australian states that have legalised voluntary assisted dying (VAD), while also reigniting ethical debates about autonomy, suffering, and end-of-life care.
What Is Voluntary Assisted Dying?
Voluntary assisted dying allows a person who meets specific criteria to request and receive medication that will hasten their death. Importantly, under NSW law, a person who dies by VAD is not considered to have died by suicide.
The legislation outlines a five-step process to ensure patients are informed, willing, and medically eligible. It also includes strict penalties for practitioners who fail to comply with its provisions.
How the Process Works
The VAD pathway begins with a First Request, which must be made clearly—either verbally, through gestures, or via an interpreter—during a medical consultation. Practitioners can refuse the request for several reasons, including personal conscientious objection or the patient’s ineligibility.
If the request proceeds, the patient undergoes a First Assessment with a coordinating practitioner to confirm their eligibility and their understanding of the prognosis/diagnosis they have been given and the alternatives available, including palliative care.
Next is the Consulting Assessment, in which a second, independent practitioner must assess the patient’s eligibility and understanding. If both practitioners agree, the patient may make a Written Declaration which allows to patient to make a Final Request (which is to be made no sooner than five days after the first). If the Final Request proceeds, the patient will undergo a Final Assessment where, if approved, the patient can then legally access life-ending medication.
Who Is Eligible?
The Act limits eligibility to adults living in NSW who have been diagnosed with a disease, illness or condition that is:
- Advanced and progressive, and
- On the balance of probabilities will cause death within six months, or within 12 months for neurodegenerative conditions.
Crucially, individuals with disabilities, dementia, or mental health impairments are not eligible unless they separately meet the VAD criteria. This limitation, designed to introduce VAD with caution, has been criticised by advocacy groups for excluding people experiencing unbearable suffering but who fall outside the eligibility scope.
For now, those who don’t qualify may turn to unsafe, unregulated means of ending their lives—something end-of-life organisations argue underscores the need for expanded access and greater public awareness.
Furthermore, telehealth consultations for VAD are currently prohibited in Australia following the Federal Court ruling which has further limited the access to VAD for persons in regional and rural communities.
What About Doctors and Nurses?
The Act also sets clear boundaries for health professionals.
Doctors and nurses have the right to conscientiously object to participating in any part of the VAD process—including assessments, prescriptions, and administering medication.
They are also prohibited from initiating discussions about VAD unless certain conditions are met. If a patient has not asked about VAD, practitioners can only raise it if they also discuss:
- Standard treatment options,
- Likely outcomes of those options,
- Palliative care alternatives, and
- Expected results of palliative care.
Breaches of these rules carry serious consequences. For instance, failing to notify the Board of a VAD request or referral within five business days may result in penalties of up to 100 penalty units—and could also constitute unsatisfactory professional conduct and professional misconduct under national health laws.
What Comes Next?
As the law settles into practice, legal experts and advocacy groups are calling for ongoing review and refinement of the legislation. For example, the Victorian Parliament found that although their VAD law, which was introduced in 2017 is “working as envisioned”, some of the safeguards in the legislation still “impede access” to VAD.
For further advice on eligibility or your rights under the Voluntary Assisted Dying Act 2022 (NSW), please contact Gillis Delaney Lawyers.
By Ben Rudgley, Graduate at Law – Gillis Delaney Lawyers
