NSW recently commenced its voluntary assisted dying (VAD) laws following the passage of the Voluntary Assisted Dying Act 2022. After an 18‐month implementation period, the legislation took effect on 28 November 2023, joining Victoria, Western Australia, Tasmania, South Australia and Queensland in permitting terminally ill adults to access life‐ending medication under strict conditions (NSW Government, 2023).
Eligibility and Criteria
Under NSW Voluntary Assisted Dying Laws, only adults aged 18 and over are eligible. They must be Australian citizens, permanent residents, or have lived in Australia continuously for at least three years. Applicants must have lived in NSW for at least 12 months unless they receive an exemption. Doctors must diagnose them with an advanced, progressive disease, illness, or medical condition expected to cause death within six months. For neurodegenerative conditions the timeframe extends to 12 months. The illness must cause suffering that the patient cannot tolerate despite available palliative care (NSW Government, 2023).
The law requires that the decision is made freely and that the patient maintains decision‐making capacity throughout the process. A disability or mental illness alone does not qualify a person for VAD. These eligibility criteria ensure that only those facing imminent death and enduring intolerable suffering may access the scheme.
Procedural Safeguards and the NSW Voluntary Assisted Dying Laws process
NSW Voluntary Assisted Dying Laws establish strict procedural safeguards to ensure the process is both voluntary and legally sound. The patient must initiate the request with their doctor, as health practitioners cannot suggest VAD. The patient must make three separate requests. First, they give an initial verbal request. Then, they complete a formal written declaration witnessed by two independent individuals. Finally, they provide a verbal confirmation after a mandatory five-day waiting period. Practitioners may waive this waiting period in urgent cases. (NSW Government, 2023).
The coordinating practitioner assesses the patient first. An independent doctor conducts the second assessment to confirm eligibility, ensure full informed consent, and verify voluntary decision-making. Both doctors must complete government-approved training and meet specific professional criteria. Those with conflicts of interest, such as family members or beneficiaries of the patient’s estate, cannot act in these roles (Legal Aid NSW, 2023).
After completing the assessments and signing the written declaration, the patient makes a final request following the waiting period. The coordinating practitioner then performs a final review and submits all documentation to the NSW Voluntary Assisted Dying Board for approval. Only after the Board confirms that all requirements have been met is the life‐ending medication prescribed. The patient then chooses whether to self‐administer the medication or to have it administered by a doctor or nurse practitioner. Once the medication is taken, death typically follows quickly and is recorded as due to the underlying terminal illness rather than as a suicide (NSW Government, 2023).
NSW Voluntary Assisted Dying Laws Compared to Other Australian States
A comparison with other Australian states shows that while core principles remain consistent, there are some differences. Most states require that the terminal illness is expected to cause death within six months, except for certain conditions such as neurodegenerative diseases where the period may extend to 12 months. Queensland, for example, applies a 12‐month criterion across all eligible conditions. NSW’s residency requirement is similar to that in Victoria, which also demands a minimum period of state residency and Australian citizenship or permanent residency. Waiting periods vary; NSW mandates a minimum waiting period of five days, compared to a nine‐day period in Victoria and several other states. This difference reflects NSW’s aim to balance sufficient reflection with the urgency experienced by some patients. Additionally, NSW offers both self‐administration and practitioner administration as equally available options. By contrast, Victoria originally limited practitioner administration to cases where self‐administration was not possible (Legal Aid NSW, 2023; NSW Government, 2023).
Regulatory and Oversight Mechanisms
NSW’s oversight mechanism is another distinguishing feature. The NSW Voluntary Assisted Dying Board plays an active role in pre‐authorisation by reviewing all documentation before the medication is dispensed. In other states the oversight bodies may primarily conduct a retrospective review. All jurisdictions maintain robust systems to ensure that VAD is conducted safely, ethically and legally.
The regulation also covers mandatory training and registration of participating practitioners. Doctors and nurse practitioners who assess or administer VAD must complete government-approved training and register as authorised VAD practitioners. Documentation and reporting requirements are key aspects of the legislative framework. Coordinating practitioners submit detailed records at each stage of the process. After a VAD death, the attending doctor completes a final report and issues the death certificate, noting the terminal illness as the cause of death. These records are vital for oversight and transparency (NSW Government, 2023).
Conclusion
NSW’s voluntary assisted dying laws provide a legally available option for terminally ill individuals seeking control over their end‐of‐life care. The legislation ensures that only those who meet strict eligibility criteria and who make an informed, voluntary decision can access VAD. The Voluntary Assisted Dying Board implements multiple safeguards, conducts independent assessments, and provides active oversight to balance compassion with rigorous legal control. While the NSW approach shares many features with other Australian jurisdictions, it introduces certain flexibilities that reflect local clinical and social perspectives, ensuring accessibility while maintaining strict regulation.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
References
NSW Government, Voluntary Assisted Dying Act 2022 (NSW) and related guidelines, 2023.
Legal Aid NSW, Overview of Voluntary Assisted Dying eligibility and process, 2023.
