Voluntary assisted dying - WA’s first decision

Case study

Mr AB approached his general practitioner Dr CD on 13 October 2023, requesting access to VAD pursuant to the Voluntary Assisted Dying Act 2019 (WA) (the Act). Mr AB had been diagnosed with lung cancer in December 2019. In June 2022, he was diagnosed with brain cancer and given a life expectancy of 12 months.

At the time Mr AB was diagnosed with lung cancer, he was living in Western Australia (WA). He subsequently moved to New South Wales in July 2020, then relocated overseas in July 2023 to live with family. Mr AB returned to WA in September 2023 as he became seriously unwell. One month later, he saw Dr CD to make a first request for VAD.

Dr CD assessed Mr AB’s eligibility to access VAD. In Dr CD’s opinion, Mr AB met all eligibility criteria except for the requirement under section 16(1)(b)(ii) of the Act that he be ordinarily resident in WA for a minimum of 12 months before making a first request to access VAD. In interpreting this provision, Dr CD noted that Mr AB had only lived in WA for one month prior to making the request.

Dr CD discussed her views with the VAD Care Navigator who agreed with Dr CD’s interpretation of the ‘ordinarily resident’ requirement. Dr CD advised Mr AB that, in her opinion, the eligibility criteria wasn’t met, and she was unable to progress his application to the next stage.

Mr AB made an application to the Tribunal for a review of the decision of whether he had or had not been ordinarily a resident in WA for a period of at least 12 months prior to his first request to Dr CD.

Discussion

The Tribunal concluded that the correct and preferable decision was that Mr AB met all eligibility criteria. It found that, at the time of making the first request to Dr CD to access VAD, Mr AB had been ordinarily resident in WA for a period of 12 months and therefore satisfied the criteria under section 16(1)(b)(ii) of the Act.

The key question for the Tribunal to consider in this case was the meaning of ‘ordinarily resident’, which is not defined in the Act. The Tribunal considered each word in isolation. The word ‘ordinarily’ was interpreted using the ordinary and natural meaning “...in ordinary cases, usually; in the ordinary way; and to the usual extent…”.

The word ‘resident’ was also interpreted using the ordinary and natural meaning “…to dwell permanently or for a considerable time, to have one’s settled or usual home in or at a particular place…”

Applying the natural and ordinary meaning of ‘ordinarily resident’, the Tribunal interpreted this to mean a person who usually, commonly or habitually dwells, or has their settled or usual home, in a particular place. In Mr AB’s case, he was found to be ordinarily resident in WA.

The Tribunal also had to consider whether Mr AB was ordinarily resident for a period of at least 12 months prior to making the first request to Dr CD. The Tribunal found the term ‘period’ to mean “any specified division or portion of time”.

The Tribunal also found the reference to ‘at least 12 months’ is not confined to the 12-month period immediately preceding the first request to access VAD. Instead, the provision requires the person to be ordinarily resident in WA for a minimum of 12 months at any given time.

Mr AB had been ordinarily resident in WA from 1991 to 2021, and in the Tribunal’s opinion he therefore met the criteria under section 16(1)(b)(ii) of the Act. The Tribunal set aside Dr CD’s decision that Mr AB was not eligible to access VAD. There were no ramifications for Dr CD in declining Mr AB’s first request.

Take-home message

VAD laws can be difficult for medical practitioners to navigate. Given this is relatively new legislation, we will likely see the courts more frequently involved in interpreting the meaning of provisions in the legislation where they are ambiguous. For those practitioners working in the VAD area, it is important that you keep up to date with decisions made by the courts, as this may affect your assessment of a patient’s eligibility.

The health departments for the respective states have some excellent resources for practitioners wanting to know more about the VAD guidelines. MDA National also has an informative webinar on the relevant VAD laws, accessible through our new Learning Management System. If you have any questions about VAD, contact our Medico-legal Advisory Services team for advice.

Subscribe to MDA National’s biannual Member publication, Defence Update, for the latest medico-legal updates, articles and case studies.

Subscribe now