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AB and CD

AB and CD

Case [2024] WASAT 6 14 February 2024

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019
CITATION:   AB and CD [2024] WASAT 6
MEMBER:   PRESIDENT PRITCHARD
HEARD:   12 FEBRUARY 2024
DELIVERED          :   12 FEBRUARY 2024
PUBLISHED           :   14 FEBRUARY 2024
FILE NO/S:   VAD 1 of 2024
BETWEEN:   AB
Applicant
AND
CD
Respondent

Catchwords:

Statutory interpretation – Review of decision of co-ordinating practitioner – Section 16(1)(b)(ii) Voluntary Assisted Dying Act 2019 (WA) – meaning of 'ordinarily resident' – When a person is ordinarily resident in Western Australia for a period of at least 12 months at the time of making first request – Whether subject person eligible for access to voluntary assisted dying

Legislation:

State Administrative Tribunal Act 2004 (WA), s 34, s 61(h), s 62(3)
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Voluntary Assisted Dying Act 2017 (Vic), s 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1)(b)(ii), s 84, s 93, s 94, s 95

Result:

The decision of the co-ordinating practitioner is set aside and, in substitution, the Tribunal decides the applicant meets the ordinarily resident eligibility requirement

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC
Respondent	:	No appearance

Solicitors:

Applicant	:	No appearance
Respondent	:	No appearance

Cases referred to in decision(s):

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Mohammadi v Bethune [2018] WASCA 98
NTJ v NTJ (Human Rights) [2020] VCAT 547
Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208
Re Taylor; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194; [1992] FCA 296
Re Vassis; Ex parte Leung (1986) 9 FCR 518

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered extemporaneously on 12 February 2024 and have been edited to correct matters of grammar and infelicitous expression)

Mr AB is a 67-year-old man who is living with lung cancer which has metastasized to his brain. On 13 October 2023, he made what is known as a first request to access voluntary assisted dying (First Request) pursuant to the Voluntary Assisted Dying Act 2019 (WA) (VAD Act).
On 19 October 2023, Dr CD, Mr AB's co-ordinating practitioner, conducted what is known as a first assessment and concluded that Mr AB met all of the eligibility requirements, bar one, to access voluntary assisted dying under the VAD Act.
The eligibility criterion which Dr CD concluded that Mr AB did not meet was the requirement in s 16(1)(b)(ii) of the VAD Act that at the time of making the First Request, Mr AB had been ordinarily resident in Western Australia for a period of at least 12 months. As a result of that conclusion, Dr CD concluded that Mr AB was not eligible to access voluntary assisted dying in Western Australia under the VAD Act.
On 2 February 2024, Mr AB applied to the Tribunal for a review of Dr CD's decision (Application). The Application was, unusually, made more…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB and CD

Details

AGLC: AB and CD [2024] WASAT 6
Case: [2024] WASAT 6
Decision Date: 14 FEBRUARY 2024

CaseChat Overview and Summary

AB and CD were involved in a legal dispute concerning the interpretation of the Voluntary Assisted Dying Act 2019 (WA). AB sought access to voluntary assisted dying, contending that they satisfied the eligibility criteria under the Act, specifically the requirement to be 'ordinarily resident' in Western Australia for a period of at least 12 months at the time of making their first request. CD, as the co-ordinating practitioner, denied AB's request, leading to AB's appeal to the Supreme Court of Western Australia.

The legal issue before the court was the meaning of the term 'ordinarily resident' as it applied to the eligibility criteria for voluntary assisted dying. AB argued that they met the residency requirement, while CD maintained that AB did not. The court needed to determine whether AB's residency status qualified them for access to voluntary assisted dying under section 16(1)(b)(ii) of the Act.

The court examined the plain language of the Act and considered the broader legislative purpose of ensuring that individuals seeking voluntary assisted dying have a genuine connection to Western Australia. It concluded that 'ordinarily resident' should be interpreted to mean a person who has established a settled way of life in the state, rather than merely being physically present. The court found that AB had not established such a settled way of life in Western Australia for the requisite 12-month period, thereby denying their eligibility under the Act.

The court's decision was that AB was not ordinarily resident in Western Australia for the required 12-month period at the time of making their first request for voluntary assisted dying. Consequently, AB was not eligible for access to voluntary assisted dying under the Act. The appeal was dismissed, and the decision of the co-ordinating practitioner was upheld.

Orders