Voluntary assisted dying eligibility criteria considered by State Administrative Tribunal

In AB v CD [2024] WASAT 6, the co-ordinating practitioner refused access on the basis that the Applicant was not ordinarily a resident in Western Australia (WA) as per section 16(1)(b)(ii) of the VAD Act. The SAT examined the wording of the section and formed the view that, in the circumstances of the case, the Applicant did meet the ‘ordinarily resident’ eligibility requirement.

Background

The Applicant, Mr AB, is a 67-year-old man living with lung cancer which metastasized to his brain about 2.5 years after he was first diagnosed.  The Applicant’s initial prognosis was a life expectancy of about 12 months.

On 13 October 2023 the Applicant made his first request to access VAD pursuant to the VAD Act (First Request). On 19 October 2023 the Respondent, Dr CD, who was the Applicant’s co-ordinating practitioner, conducted the first assessment and concluded that the Applicant met all of the eligibility requirements except for one, being the requirement that at the time of making the First Request, the Applicant had been ordinarily resident in WA for a period of at least 12 months. As a result, the Respondent concluded that the Applicant was not eligible to access VAD.

Issue for consideration

The SAT was tasked with considering the meaning of ‘ordinarily resident’ as per section 16(1)(b)(ii) of the VAD Act.

Section 16 of the VAD Act sets out a number of criteria that must be met before a person is eligible for access to VAD. Whether a person satisfies the criteria under section 16 is a decision for the person’s co-ordinating practitioner. If the co-ordinating practitioner is satisfied that the person meets all of the eligibility criteria under section 16, then the person’s request can proceed to the next stage.

Section 16(1)(b)(ii) of the VAD Act provides that the person seeking access to VAD “at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months”. The SAT noted that there are three components to section 16(1)(b)(ii):

1. whether the criterion is met is to be judged as at the time the person made a first request (in this case 13 October 2023);
2. the person seeking access to VAD must have been ‘ordinarily resident in WA’ prior to making the first request; and
3. the person must have been ordinarily resident for a minimum time, namely a period of at least 12 months.

The meaning of ‘ordinarily resident’ is not defined in the VAD Act, and therefore the SAT considered the ordinary meaning of the words, as well as the meaning of these words within their statutory context, including the legislative purpose. The SAT commented that the ordinary and natural meaning of the phrase ‘ordinarily resident’ directs attention to a person “who usually or commonly or habitually dwells in, or has their settled or usual home in a particular place”, in this case WA. That criterion imports an element of permanence in relation to where the person makes their home.

In the SAT’s view, the reference to ‘a period of at least 12 months’ in section 16(1)(b)(ii) contemplates a portion of time in which the person has been ‘ordinarily resident’. The SAT noted that the term ‘period’ means ‘any specified division or portion of time’ and an ‘indefinite portion, spell or interval of time; a portion of one’s life’. It was also noted that the reference to ‘at least 12 months’ signals the legislature’s intention that the focus of attention is not solely on the period of 12 months prior to the first request, but rather, the inquiry is whether, prior to the first request, the person had been ordinarily resident in WA for a period of at least 12 months.

The SAT commented that the reference to ‘a period’ in section 16(1)(b)(ii) is in the singular, in other words the criterion is that the person must have been ordinarily resident for a discrete portion of their life, of at least 12 months’ duration, rather than for period of time which, taken together, might add up to at least 12 months.

The SAT also noted that the criterion under section 16(1)(b)(ii) does not require that the person have been present in WA consistently during that period of at least 12 months, and ‘ordinarily resident’ permits the possibility that the person may have been absent for a portion of time within the period prior to making the first request, but notwithstanding those absences, WA remained the place where they have been ordinarily resident for at least 12 months.

Applicant’s evidence of residency in Western Australia

The Applicant was born in New South Wales (NSW) in 1956 and moved to WA in 1991. The Applicant lived in regional WA from at least 1998 and lived in one house that had been made available to him as a condition of his employment from 1998 to April 2021. The Applicant held a WA driver’s licence from about 1991 and had not held a licence from any other jurisdiction in that period.

In about March 2007 the Applicant purchased a run-down property in NSW with the intention of renovating it as an investment, and so that he had somewhere to stay when he visited his parents who lived in NSW. The Applicant did not move into the property on a permanent basis, and other than for when he was renovating it, the Applicant did not live there. At various times between 2007 and 2021 the Applicant would have holidays in NSW, during which time he would work on the renovation of the NSW property.

In about 2010 or 2011, the Applicant went to Cambodia where he met a woman, Ms K, who became his partner. The Applicant and Ms K had a son together, and the Applicant considers Ms K’s daughter as his adopted daughter. The Applicant’s intention was to visit Cambodia on a regular basis and eventually bring the children to WA. The Applicant has visited Ms K and their children in Cambodia and when he has done so, he has stayed with them, but he had not lived in Cambodia for any substantial length of time.

The Applicant was diagnosed with lung cancer in December 2019, and was subsequently diagnosed with brain cancer in about June 2022. The Applicant resigned from his employment in April 2021 as he was too ill to continue working, which meant that he had to leave the home in which he had been living. The Applicant decided to travel to NSW with the intention of completing the renovations on his NSW property, and lived at the property on and off for about 18 months between April 2021 and November 2022. Between November 2022 and March 2023, the Applicant returned to WA to visit friends and also travelled to Cambodia. The Applicant then returned to NSW to ensure the NSW property was ready for sale, and he subsequently sold the property in July 2023.

In about June 2022 the Applicant decided to cease cancer treatment, and since then has been in palliative care. In late July 2023 the Applicant returned to Cambodia but became too unwell to stay, and with the assistance of friends and family he returned to WA in September 2023.

The Applicant had always intended to return to WA once he had sorted out the NSW property and had said his goodbyes in Cambodia. When he returned to WA, the Applicant lived with Ms S for a few weeks before finding accommodation at a palliative care provider, which is where he was living at the time of the First Request.

Respondent’s reasoning for decision

When determining whether the Applicant met the criteria under section 16(1)(b)(ii), the Respondent informed the SAT that she had been told by the Applicant’s palliative care team that he had only recently moved to WA, and the Applicant’s first admission to hospital approximately 6 weeks before the First Request recorded that the Applicant had only very recently arrived in WA to stay with his friend. The Tribunal noted that there was minimal evidence available to the Respondent in relation to where, in fact, the Applicant had been ordinarily resident prior to the First Request, in order for her to make her decision.

Decision of the SAT

The Tribunal noted that during the 12 months prior to the First Request, the Applicant had spent little time in WA, however it was satisfied that the Applicant could properly be said to have been ordinarily resident in WA for at least 12 months prior to the First Request. The Tribunal’s reasons for reaching this decision include:

1. the Applicant had lived in WA on a permanent basis between 1991 and April 2021, and had only left WA during this period for holidays or to see family;
2. from September 2023 the Applicant had returned to live in WA on what would clearly be a permanent basis until his death;
3. although the Applicant was not physically present in WA for most of the time between April 2021 until September 2023, that does not undermine the conclusion that overall, between 1991 and the First Request he was ordinarily resident in WA;
4. whilst the Applicant lived in NSW for substantial periods between April 2021 and September 2023, the evidence supported the conclusion that this was on a temporary basis, and for a specific purpose which was to renovate the NSW property so that he could sell it and provide funds for his family in Cambodia;
5. the Applicant had left his personal possessions in storage in WA while he went to NSW in April 2021 and he took his car with him but maintained its WA registration, considerations which the Tribunal held supported the conclusion that his time in NSW was only intended to be temporary; and
6. the evidence left no doubt that having got his life affairs in order and having seen his Cambodian family for the last time, the Applicant returned to WA to spend his final days with those closest to him.

The Tribunal also commented that to focus solely on the period of 12 months prior to the First Request, which it appears that the Respondent did, would in the Tribunal’s view, ignore the fact that section 16(1)(b)(ii) establishes the period of at least 12 months prior to making the first request as merely the minimum period of being ordinarily resident in WA. It is not the only period that the medical practitioner needs to have regard to.

The SAT was ultimately satisfied that the Applicant could properly be regarded as having been ordinarily resident in WA from 1991 to the First Request, and ordered that the co-ordinating practitioner’s decision be set side and substituted with the SAT’s decision that the Applicant met the eligibility criteria in section 16(1)(b)(ii) of the VAD Act.

Conclusion

This is the first case in which the SAT has considered the eligibility criteria under the VAD Act, and provides useful commentary on the SAT’s interpretation of the meaning of “ordinarily resident in Western Australia for a period of at least 12 months”.

When considering whether a person has been ordinarily resident in WA for at least 12 months prior to the first request under the VAD Act, the consideration is not simply whether they have lived in WA for the 12 months immediately preceding the date of the first request. Enquiry should be made as to where the applicant had been living before the 12 months preceding the first request, as well as the reasons why the applicant may have been living outside of WA for any periods of time.

It is unlikely that this will be the only application for review under the VAD Act, and it will be interesting to see if any applications are made in relation to the other eligibility criteria under section 16 and how the SAT will interpret these criteria, such as whether the person’s diagnosis is advanced and progressive, or whether the person has the decision-making capacity to agree to VAD.