Introduction
Victoria was an early adopter of VAD, passing Australian-first legislation in November 2017 and with their VAD scheme commencing in June 2019.
Western Australia followed shortly after, passing legislation in December 2019, resulting in the scheme commencing in July 2021.
All Australian States, except the Australian Capital Territory (ACT) and Northern Territory (NT), now have an operational VAD scheme. The ACT has passed legislation and their scheme commences in November 2025, and the NT is currently considering the issue.
VAD schemes have now been operating in Australia for over five years. There is now a wealth of information available regarding the operation of schemes in participating jurisdictions, making it a perfect time to review the operation of the VAD schemes and to ponder their future.
Current state of voluntary assisted dying schemes
Go Gentle Australia (Go Gentle) have published its first annual ‘State of VAD: Voluntary Assisted Dying in Australian and New Zealand 2024 Report’ (2024 Report).
The 2024 Report found that 7,208 terminally ill people have sought access to VAD in Australia and New Zealand since the commencement of VAD schemes, with 3,242 people dying after using a VAD substance. 1,350 health professionals are currently assisting VAD applicants.
Go Gentle found high levels of compliance with VAD processes, with 100% or close to 100% compliance based on available data in most jurisdictions. The 2024 Report only identified one instance involving the misuse of a VAD substance, which was referred to the Coroner in Queensland by VAD authorities. The 2024 Report noted the importance of improving data collection across jurisdictions to allow for better analysis of differences and identification of areas of improvement.
One significant issue identified by Go Gentle related to remuneration of health practitioners for participation in VAD processes. The Medical Benefits Schedule (MBS) still states at Explanatory Note GN.13.33 that “euthanasia and any service directly related to the procedure” will not attract Medicare benefits.
Due to the nature of VAD, many practitioners are effectively providing services on a pro bono basis, which is significant given the heavy administrative and emotional burden of the process.
Go Gentle recommended that MBS funding be provided for VAD services and that the States also make funding available to support VAD practitioners. Some States, such as Western Australia and New South Wales, have put independent VAD funding models in place.
Another issue identified related to the ability to access VAD trained medical practitioners, particularly in regional and remote Australia. Statistics quoted in the 2024 Report indicate that there are relatively few medical practitioners who have completed the necessary VAD training and are actively participating in the scheme. This issue is compounded by restrictions on VAD services being provided by telehealth (discussed in greater detail below).
Several jurisdictions are considering ways to increase the capacity of the scheme, including by increasing the role of experienced nurses in the process and widening the eligibility criteria for participating medical practitioners. Increasing capacity in this manner will be key to the continued success of VAD in Australia on a long-term basis.
Application of Commonwealth Criminal Code to voluntary assisted dying consultations
One of the key areas for reform identified by Go Gentle in the 2024 Report was the limitation on VAD services being provided by telehealth due to the application of the Commonwealth Criminal Code (contained in Schedule 1 of the Criminal Code Act 1995 (Cth)).
Sections 474.29A and 474.29B of the Commonwealth Criminal Code make it an offence to use a ‘carriage service’ (such as a telephone, videoconference, email or other forms of electronic communication) to publish or distribute material that counsels or incites committing or attempting to commit suicide.
The application of these sections to VAD was considered by the Federal Court of Australia in Carr v Attorney‑General (Cth) [2023] FCA 1500. Her Honour Justice Abraham made the following declaration, confirming the offences applied to information provided as part of a VAD process:
The term ‘suicide’, as used in ss474.29A and 474.29B of the Criminal Code Act 1995 (Cth), does apply to the ending of a person’s life in accordance with, and by the means authorised by, the Voluntary Assisted Dying Act 2017 (Vic) and Voluntary Assisted Regulations 2018 (Vic).
Advocacy groups have noted that this declaration is inconsistent with some sections of State VAD legislation. For example, section 12 of the Voluntary Assisted Dying Act 2019 (WA) expressly provides that a person who dies as a result of the administration of a prescribed substance in accordance with this Act does not die by suicide.
However, Her Honour expressly considered this issue and noted that section 109 of the Commonwealth Constitution did not allow the State-based VAD legislation to supplant Commonwealth legislation.
Go Gentle stated this restriction has resulted in some terminally ill patients or health professionals being required to travel thousands of kilometres to provide VAD services. The 2024 Report noted the requirement to travel for in-person consultations is particularly problematic for patients, who are often very unwell and in pain.
Legislative amendment at the Commonwealth level will be necessary to allow VAD services to be provided by telehealth. Independent Member for Curtin, Ms Kate Chaney has introduced a private members bill to the House of Representatives seeking to do just that.
The Criminal Code Amendment (Telecommunications Offences for Suicide Related Material — Exception for Lawful Voluntary Assisted Dying) Bill 2024 (Cth) was introduced to the House of Representatives in February 2024 and is currently before Parliament. That Bill proposes to insert an amendment into the Commonwealth Criminal Code that clarifies a person who dies as a result of a lawful VAD process does not suicide for the purposes of the aforementioned sections.
The proposed amendment to the Commonwealth Criminal Code is said to be a logical and reasonable step, given the steps already taken by the Commonwealth Government to facilitate VAD across the country. Particularly for patients in regional and remote Australia, allowing telehealth consultations regarding VAD would significantly assist with current service availability issues.
Voluntary assisted dying in Western Australia
The Department of Health (WA) has published a number of resources to assist practitioners to understand their obligations under the Voluntary Assisted Dying Act 2019 (WA). This includes comprehensive guidelines about the process, which can be accessed at their website.
We recommend all health practitioners practising in Western Australia review these resources, as even practitioners who conscientiously object to involvement in VAD may have obligations under the Voluntary Assisted Dying Act 2019 (WA).
The Voluntary Assisted Dying Act 2019 (WA) provides that a contravention of a provision of that Act by a registered health practitioner is capable of constituting professional misconduct or unprofessional conduct for the purposes of the Health Practitioner Regulation National Law.
At least one failure to comply with VAD legislation has resulted in a practitioner being reprimanded by a Tribunal, and therefore we recommend all practitioners review their obligations in this area.
