Euthanasia and assistance to suicide became legal in New South Wales on 28 November 2023, when theVoluntary Assisted Dying Act 2022 came into operation.

The Act provides for the Voluntary Assisted Dying Board, which it established as an “agent of the Crown”, to issue a “a voluntary assisted dying substance authority” to a medical practitioner to prescribe a lethal poison either for the purpose of the patient named in the authority ingesting the poison in order to cause the person’s own death (suicide) or for the lethal poison to be administered to the person by a medical or nurse practitioner (euthanasia).

The patient may freely choose either suicide or euthanasia.

Numbers

An Interim Report covering 28 November 2023-29 February 2024 reports that 131 people had their lives ended under the Act – 91 (69.5 percent) by receiving a lethal injection from a medical or nurse practitioner and 40 (30.5 percent) by ingesting a lethal substance prescribed by a medical practitioner.

This represents 0.95 percent of all deaths in NSW in the three months December 2023-February 2024 – almost 50 percent higher (46.1 percent) than the rate in Victoria after four years of legalization. In 3 months, NSW has ended their lives of the same number of people (131) as Victoria did in the first year of legalisation.

The difference may be related to two factors.

Firstly, in Victoria medical practitioners cannot suggest assisted suicide or euthanasia to a patient – the request has to come from the person whereas in NSW the option of euthanasia can be offered by a medical practitioner with no initial suggestion from the person that are considering this

Secondly, in Victoria administration of a lethal injection by the practitioner is only available if there is an identified issue with self-administration. In NSW death by practitioner administration can be freely chosen. Only 15 percent of Victorian cases involve practitioner administration – compared to 69.5 percent so far in NSW. International evidence indicates that overall rates are higher when euthanasia is freely on offer compared to jurisdictions where assisted suicide is the only or default option.

Underlying condition

The Interim Report gives no details of the conditions involved in the 12 cases described as “other” conditions (that is, not cancer, neurodegenerative or respiratory conditions).

Prognosis

The eligibility criteria include a prognosis - determined by two medical practitioners neither of which need to have any specific qualification or experience in the relevant condition – on “the balance of probabilities” that death will occur within 6 months (or within 12 months for neuro-degenerative conditions).

The handbook prepared by NSW Health acknowledges that “predicting when a person is entering the final months of their life can be difficult”.

This means that there will inevitably be wrongful deaths of people who may have had years to live from errors in prognosis.

Curiously the NSW Health handbook states that a Board authority to prescribe will remain valid for six months (or 12 months in the case of a neurodegenerative disorder) but that the patient can wait a further six months from when the prescription is written to have it filled. So NSW Health is envisioning patients given a prognosis of six months to live still being alive 12 months after this prognosis has been given.

In the case of authority to suicide by prescribed poison there is no time limit on how long the supplied poison may be kept before it is ingested.

Decision-making capacity

The NSW Health handbook states “In the event that a coordinating practitioner becomes aware that a patient has permanently lost decision-making capacity after supply of the voluntary assisted dying substance for self-administration, the substance must be returned and disposed of as the patient is no longer eligible for voluntary assisted dying.”

This admission points to a serious risk in the scheme set up under the Act. Once the final review is completed before the coordinating practitioner applies for an authority to prescribe the lethal poison for self-administration there are no further checks on a person’s decision-making capacity and no requirement for any further contact between the coordinating practitioner and the patient.

The person may well lose decision-making capacity before ingesting the lethal poison. In this case there is simply no protection and no way of ever knowing if the person was subsequently cajoled, bullied, tricked or even physically forced to ingest the lethal poison.

Agents

The Act provides for the collection of the lethal poison for self-administration from the pharmacy by an “agent” of the patient, without imposing any restrictions or qualifications – not even an age restriction – on who can be designated by the patient. The agent is authorised by the Act to collect and store the poison, and also to prepare it and supply it to the patient to ingest – but not to actually administer it to the patient. As there is no witness required to be present at the time the lethal poison is ingested, we will never know if agents (or others) breach this provision.