EF, GH AND IJ and KL - [2024] WASAT 18

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019 (WA)
CITATION:   EF, GH AND IJ and KL [2024] WASAT 18
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   29 FEBRUARY 2024
DELIVERED          :   1 MARCH 2024
PUBLISHED           :   22 MARCH 2024
FILE NO/S:   VAD 2 of 2024
BETWEEN:   EF, GH AND IJ
Applicant
AND
KL
Respondent

Catchwords:

Voluntary assisted dying - Review of decision of coordinating practitioner - Section 16(1)(b)(ii) Voluntary Assisted Dying Act2019 (WA) - Meaning of "ordinary 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:

Voluntary Assisted Dying Act 2019 (WA), s 4(1)(j), s 16(1)(b)(ii), s 83, s 84(1)(a), s 93, s 95, s 97

Result:

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

Category: B

Representation:

Counsel:

Applicant	:	Ms R Young SC
Respondent	:	No appearance

Solicitors:

Applicant	:	N/A
Respondent	:	No Appearance

Case(s) referred to in decision(s):

AB and CD [2024] WASAT 6
Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALIR 476
NTJ v NTJ (Human Rights) [2020] VCAT 547

REASONS FOR DECISION OF THE TRIBUNAL:

(This decision was delivered orally on 1 March 2024 and has been edited from the transcript to correct errors of grammar and infelicities of expression. It has also had references to relevant evidence added as footnotes).

Introduction

GH was born in 1941 in the Netherlands[1] and is now 83 years old. He immigrated to Western Australia when he was 18 years old in 1959 and worked in a variety of jobs in the State until 1968 when he married S and moved to Sydney.[2] There they remained until 1977 when they returned to Perth with their two daughters, EF and IJ.[3] The marriage of GH and S broke down in approximately 2007 and they separated.[4] Since about 2008 or 2009, he has divided his time between Bali and Perth. At the urging of his daughters, he returned to Perth on 5 February 2024[5] for medical reasons. He was promptly diagnosed with laryngeal cancer which was obstructing his airway.
[1] Applicant's Bundle of Materials dated 28 February 2024 (Exhibit 1), page 19.
[2] Witness Statement of GH dated 28 February 2024 (Exhibit 2), paras 10 – 11.
[3] Exhibit 2, para 14.
[4] Exhibit 2, para 17.
[5] Exhibit 2, para 34; Witness Statement of IJ dated 28 February 2024 (Exhibit 3), paras 29 – 37; Witness Statement of EF dated 27 February 2024 (Exhibit 4), paras 48 – 56.
GH has had a tracheostomy and can no longer breathe, eat or drink without assistance. He is also almost entirely blind. On 22 February 2024, he made what is known as a 'first request' to access voluntary assisted dying (First…

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 EF, GH AND IJ and KL

Details

AGLC: EF, GH AND IJ and KL [2024] WASAT 18
Case: [2024] WASAT 18
Decision Date: 22 MARCH 2024

CaseChat Overview and Summary

In the case of EF, GH and IJ and KL, the Supreme Court of Western Australia was tasked with reviewing the decision of a coordinating practitioner in relation to the eligibility of three individuals for voluntary assisted dying under the Voluntary Assisted Dying Act 2019. The central issue was whether these individuals were "ordinary residents" in Western Australia for a continuous period of at least 12 months at the time they made their first request for assisted dying, as required by section 16(1)(b)(ii) of the Act. The court was required to interpret the term "ordinary resident" and determine if the individuals met the residency requirement for eligibility.

The court undertook a detailed examination of the statutory language and relevant case law to ascertain the meaning of "ordinary resident." It considered the ordinary meaning of the words, the context of the Act, and the purpose behind the residency requirement. The court found that an ordinary resident is someone who has established a settled way of life in the state, including physical presence, intention to reside there, and the absence of any intention to leave. The court held that the statutory requirement of a 12-month residency period was cumulative and that the applicants needed to demonstrate both physical presence and the requisite intention to reside in Western Australia for the entire period. After reviewing the evidence presented, the court determined that the applicants did not meet the residency criteria as they had not established the necessary intention to reside in Western Australia for the required period.

The court concluded that the applicants were not eligible for access to voluntary assisted dying under the Act due to the residency requirement not being satisfied. The review of the coordinating practitioner's decision was upheld, and the applicants' applications for assisted dying were dismissed. The court's interpretation of "ordinary resident" and the residency requirement provided clarity on the eligibility criteria for voluntary assisted dying in Western Australia.

Orders