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 Request) pursuant to the Voluntary Assisted Dying Act 2019 (WA) (VAD Act). On the same day, Dr KL, his coordinating practitioner, conducted what is known as a 'first assessment' and concluded that GH met all but one of the eligibility requirements to access voluntary assisted dying under the VAD Act. Dr KL was not satisfied that GH, at the time of making the First Request, had been ordinarily resident in Western Australia for a period of at least 12 months pursuant to s 16(1)(b)(ii) of the VAD Act.
As a result, Dr KL concluded that GH was not eligible to access voluntary assisted dying in Western Australia under the VAD Act. On 23 February 2024, EF, GH, and IJ jointly applied to the Tribunal for a review of Dr KL's decision (Application).
Having carefully considered all of the evidence available to me, together with the submissions of Ms Young SC, who appeared on behalf of the applicants, I have concluded that the correct and preferable decision is that at the date of the First Request, GH had been ordinarily resident in WA for a period of at least 12 months and he therefore met the criteria in s 16(1)(b)(ii) of the VAD Act.
Accordingly, Dr KL's decision should be set aside and the decision substituted for one with the effect that GH does meet that eligibility criterion. In what follows I deal with the following matters:
(a)Procedural history;
(b)Preliminary matters;
(c)The statutory regime and relevant legal principles;
(d)The evidence before the Tribunal and my findings thereon; and
(e)The correct and preferable decision.

Procedural history

As previously noted, the application was lodged by EF, GH, and IJ jointly on 23 February 2024.
Having regard to GH's circumstances and situation and the applicants' request on that date for an urgent ruling I satisfied myself that I had jurisdiction to hear and determine the matter. I did so because I was satisfied that, subject to satisfaction of the various criteria contained within s 84(1)(a) of the VAD Act, the application clearly falls within that subparagraph. I then made orders on that date to the effect that:
(a)Firstly, the matter was listed for directions at 2 pm on Monday, 26 February 2024.
(b)Secondly, Dr KL was required to file with the Tribunal, by close of business 27 February 2024, a statement of his reasons for the reviewed decision and any other documents and material in his possession or under his control and relevant to the Tribunal's review of the decision.
(c)That period was considerably less than the seven days provided by s 95 of the VAD Act, but Dr KL ultimately took no objection to it and filed four documents within that expedited timeframe, for which I am grateful.
(d)Thirdly, pursuant to s 94 of the VAD Act, notice was given to each of the applicants, Dr KL, the Voluntary Assisted Dying Board (VAD Board), and the CEO of the Department of Health.
(e)Fourthly, the matter was listed, on a provisional basis, for hearing at 2 pm on Thursday, 29 February 2024.
(f)Finally, pursuant to s 93 of the VAD Act, orders were made to the effect that the hearing would be held in private and that, pursuant to s 97 of the VAD Act, all identifying features would be anonymised.
At the directions hearing on 26 February, Dr KL was joined as the respondent and the VAD Board was given leave to observe the hearing, the matter was listed for final hearing at 2.15 pm on 29 February 2024, and orders were made for the filing of evidence and legal submissions in circumstances where the applicants advised that they had engaged Senior Counsel.

Preliminary matters

As noted above, I am satisfied that I have jurisdiction to hear and determine the matter[6] in which the applicants seek review of Dr KL's decision that, at the time of making first request, GH had not been ordinarily resident in Western Australia for a period of at least 12 months.
[6] Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALIR 476 at [17].
The application squarely falls within the parameters of s 84(1)(a) of the VAD Act, which provides that an 'eligible applicant' may apply to the Tribunal for a review of 'a decision of the coordinating practitioner for a patient in a first assessment that the patient at the time of making the first request, has or has not been ordinarily resident in Western Australia for a period of at least 12 months'.
Attending, in turn, to the various criteria contained in that subparagraph, it is uncontroversial, and I find, that:
(a)Firstly, on 22 February 2024, GH made a First Request for access to voluntary assisted dying.[7]
(b)Secondly, Dr KL accepted that request by which he became GH's coordinating practitioner and he assessed GH for eligibility for access to voluntary assisted dying.[8]
(c)Thirdly, by or during the first assessment, Dr KL determined that at the time of making the First Request, GH had not been ordinarily resident for a period of at least 12 months and was therefore not eligible for access to voluntary assisted dying.[9]
[7] Exhibit 1, pages 2 – 6.
[8] Exhibit 1, pages 5 – 6.
[9] Exhibit 1, pages 11 and 14.
I will turn briefly to the question as to whether each of EF and IJ is an eligible applicant.
Section 84(1) of the VAD Act restricts the ability to seek review of various decisions to an 'eligible applicant', which term is defined in s 83 of that Act as meaning –
(a)a patient who is the subject of a decision referred to in section 84(1); or
(b)an agent of a patient referred to in paragraph (a); or
(c)any other person who the Tribunal is satisfied has a special interest in the medical care and treatment of a patient referred to in paragraph (a).
GH clearly falls into the class of persons covered by paragraph (a) of that definition. At my invitation, Ms Young SC addressed the question as to whether EF and IJ fall into the class of persons covered by paragraph (c) of the definition. She submitted that 'a special interest in the medical care and treatment of a patient' required more than a 'prosaic' interest and submitted therefore that this would exclude, for example, a nurse involved in the care of a patient. I tend to agree, given that it seems reasonable to think that almost every patient will have several nurses associated with their care.
However, I do note that the Victorian Civil and Administration Tribunal (VCAT) in NTJ,[10] held that the coordinating practitioner in that case satisfied the criterion.
[10] NTJ vNTJ (Human Rights) [2020] VCAT 547 [15] (NTJ).
Ms Young SC submitted that both EF and IJ fulfil the criterion in paragraph (c) of the definition because of their close relationship with their father. She gave as an example that GH describes them as his 'support network'.[11] She also relied on what she said was their obvious interest in his medical care and treatment.
[11] Exhibit 2, para 40.
In that regard, I note the evidence that they are both nurses and they advised GH to have his difficult breathing investigated and later advised him to get a second opinion.[12] They also coordinated his return to Perth, including one of them flying with him for treatment.[13]
[12] Exhibit 3, paras 1 and 33 – 34; and Exhibit 4, paras 1 and 50 – 52.
[13] Exhibit 4, para 54.
Both the Second Reading Speech and the Explanatory Memorandum for the relevant Bill[14] expressed the view that 'merely being a member of the person's family or their primary caregiver is not, on its own, intended to be sufficient to constitute having a special interest'.[15] However, it is also clear that the definition in the statute does not, in fact, say anything like that at all.
[14] Voluntary Assisted Dying Bill 2019 (WA).
[15] Second Reading Speech, Voluntary Assisted Dying Bill 2019, page 15. The Explanatory Memorandum is in very similar, but not identical terms.
No other decision in Australia of which I am aware appears to address the issue.
In my view, a strict or narrow approach should not be taken to the question as to what amounts to a special interest in the medical care and treatment of the patient in question.
Amongst other things, the need to protect patients from potential abuse or coercion, which is expressed as a principle of the VAD Act at s 4(1)(j) supports the proposition that a broad view of a 'special interest' may need to be taken.
In my view, the review function provided by s 84 of the VAD Act provides a degree of protection for patients from those whose concern may not be the welfare of the patient, and the Tribunal should therefore be slow to find that an applicant lacks the necessary special interest. Having said that, plainly a person whose interest is no more than a philosophical opposition to voluntary assisted dying could not be said to have a special interest in the medical care and treatment of a particular patient.
In my view, no hard and fast rule should be formulated in this regard. Rather, each application must be considered on its merits in light of its own facts and circumstances.
Ultimately, it is not necessary for me to decide the issue in this case because I am satisfied that each of EF and IJ fall into the class of persons covered by paragraph (b) of the definition of the 'eligible applicant'.
The application for review states that GH '[i]s unable to make this application without our [that is, his daughter's] assistance due to his medical condition'. That statement appears supported by the terms of GH's witness statement, which explains that it [i.e. the witness statement] was obtained in circumstances that were, for GH, slow, difficult, and exhausting.[16]
[16] Exhibit 2, paras 5 – 8.
Further, I am satisfied that the application has not been brought to further the interests of EF and IJ. Amongst other things, the evidence is clear that there is no material benefit to be delivered to them upon the passing of their father and I have formed the view that they love their father.
Further, the material filed by Dr KL supports the view that he, Dr KL, is of the view that GH ought to be able to access voluntary assisted dying save for his concerns as to residency.[17] Accordingly, I am satisfied that GH's daughters acted as applicants in this proceeding to give effect to their father's wishes, not their own. Accordingly, while the application was also made in the name of GH, in reality it was made on his behalf by his daughters as his agents. In my view, therefore, all three applicants are eligible to bring the application.
[17] Statement of Reasons of Dr KL, filed on 27 February 2024.

Statutory regime and legal principles

The issue before me is whether, at the time of making the First Request, GH had ordinarily been resident in Western Australia for a period of at least 12 months.
That criterion is contained in s 16(1)(b)(ii) of the VAD Act.
Section 16 more generally sets out certain criteria that must be met for a person to be eligible for access to voluntary assisted dying. Dr KL, as GH's coordinating practitioner, is satisfied that each of the other eligibility criteria is met.[18] It is therefore unnecessary to address those other matters.
[18] Statement of Reasons of Dr KL, filed on 27 February 2024.
In any event, as should be evident from the above, the Tribunal's jurisdiction under an application under s 84(1)(a) of the VAD Act is limited to the question whether the patient has been ordinarily resident in Western Australia for the relevant period. No other eligibility criteria is in issue. Whether that criterion is met is to be judged as at the time that GH made the First Request, which, in this case, is 22 February 2024.
As was noted by her Honour, President Pritchard in the recent case of AB and CD:[19]
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, Western Australia. That criterion imports an element of permanence in relation to where the person makes their home.
[19] AB and CD [2024] WASAT 6, para 22 (AB and CD).
As her Honour also said, the phrase in question must be understood in its context which includes the legislative purpose identified by her Honour, being:
… to exclude those who might come to this State temporarily and briefly, and only for the purpose of accessing voluntary assisted dying.[20]
[20] AB and CD, para 27.
That is, Parliament was concerned:
… to confine access to voluntary assisted dying to persons living in Western Australia on a more permanent basis rather than to make it available to visitors who might come here solely to access voluntary assisted dying.[21]
[21] AB and CD, para 27.
The relevant context also includes the principles of the VAD Act which are set out in s 4 and emphasise the desirability for persons approaching the end of their life to be provided with high quality care and treatment and the benefit of a therapeutic relationship. As her Honour noted in AB and CD, compliance with those principles would be difficult for a person who came to this State only briefly or temporarily and for the purpose of accessing voluntary assisted dying. Her Honour held the reference to 'a period of at least 12 months' in s 16(1)(b)(ii) contemplates a portion of time that a person has been 'ordinarily resident'.[22]
[22] AB and CD, para 25.
Her Honour also held that the reference to 'at least 12 months' signals Parliament's intention that the focus of attention is not solely on the period of 12 months prior to the first request. Rather, the inquiry is whether, prior to the first request, the person had been ordinarily resident in Western Australia for a minimum of 12 months.[23] As her Honour noted, the reference to a period of at least 12 months 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 periods of time which, taken together, might add up to at least 12 months.[24] Her Honour also held that the criterion in s 16(1)(b)(ii) 'does not require that the person has been present in Western Australia consistently during that period of at least 12 months'.[25]
[23] AB and CD, para 25.
[24] AB and CD, para 26.
[25] AB and CD, para 29.
The requirement that the person be ordinarily resident in Western Australia –
… permits of the possibility that the person may have been absent for a portion, or portions, of time, within the period prior to making the first request, but that notwithstanding those absences, Western Australia remained the place where they had been ordinarily resident for at least 12 months.[26]
[26] AB and CD, para 25.
Should it not otherwise be apparent, I respectfully agree with and adopt for present purposes each of her Honour's findings, as previously described.

The evidence and my findings

I now turn to the evidence and my findings.
Each of the applicants gave evidence. GH's evidence was given by written witness statement. In his statement he explained how the statement was prepared by Ms Young SC asking him questions which he answered by writing on a whiteboard or by nodding to indicate his agreement.[27] Given his health and associated fatigue, the witness statement was necessarily brief.[28]
[27] Exhibit 2, paras 5 – 7.
[28] Exhibit 2, para 8.
EF and IJ also prepared written witness statements which they adopted at the hearing as their evidence.[29]
[29] Exhibit 4 and Exhibit 3.
They also supplemented that evidence by viva voce evidence by which they addressed two matters, which I will describe in more detail below.
The evidence of all three witnesses is largely consistent and covers much of the same ground. What follows amounts to my findings of fact based on the evidence of the three witnesses. The references to aspects of the evidence are not intended to be exhaustive.
GH immigrated to Australia from the Netherlands when he was 18 years old in 1959 and until 1967 lived in Western Australia performing various jobs around the State.[30]
[30] Exhibit 2, paras 10 – 11.
In 1967, he married S and moved to Sydney with her where they lived until 1977 during which time they had their two daughters.[31] In 1977, they returned to Perth and between then and approximately 2007, he and at least his wife lived together in one of three rental properties.[32] That is, since returning from Sydney in 1977, he has not owned any real property in Western Australia.
[31] Exhibit 2, paras 11 – 13.
[32] Exhibit 4, paras 16 – 18.
He held various jobs in Perth and Western Australia. He and his wife attended a local church and he was a member of a car club.[33]
[33] Exhibit 4, paras 19 – 20.
He and his wife separated in approximately 2007.[34] He describes himself as 'devastated' by that separation and says that it took him 'a couple of years to find himself'.[35]
[34] Exhibit 2, para 17; Exhibit 3, para 15.
[35] Exhibit 2, paras 18 and 21.
That separation seems to have been the catalyst for his decision to spend a considerable amount of time in Bali thereafter. He says that he decided to spend time in Bali for three reasons. First to, in effect, avoid family difficulties.[36] Second, he decided to teach Balinese children English.[37] And third, for financial reasons;[38] that is, it was cheaper to live in Bali on his Australian pension than in Australia.
[36] Exhibit 2, para 22.
[37] Exhibit 2, para 23.
[38] Exhibit 2, para 24.

From 2008 or 2009 until 2019, he spent several months each year in Bali. The precise amount of time is not particularly clear. EF's witness statement says that he spent four to five months at a time in Bali and would travel to Bali about twice a year.[39] IJ's witness statement said that he spent about six to nine months of the year there.[40]
[39] Exhibit 4, para 31.
[40] Exhibit 3, para 20.
In viva voce evidence, both daughters said they were doing their best to estimate an average cumulative amount across the 13 or so years that he travelled back and forth to Bali. I take no issue with that approach which seems reasonable in the circumstances. I find that, in some years, he would travel back and forth to Bali twice a year and sometimes three or more times a year. I find that he spent more time in Bali than in Perth throughout that period.
The evidence is, and I find, that he owns no real property in Bali. Neither does he own a car or belongings of any substance there.[41] When in Bali, he rents a furnished premises.[42] When he returns to Perth, he leaves nothing in Bali.[43] He lives a simple and frugal life. His only property of any value is a laptop.[44]
[41] Exhibit 2, para 38.
[42] Exhibit 4, para 36.
[43] Exhibit 4, para 37.
[44] Exhibit 4, para 34.
He does, or at least did, leave some possessions, which are described as clothes and tools, in Perth when he was in Bali.
He usually returned to Perth in January for his birthday and for the warmer weather.[45] Sometimes, he would stay for a few weeks, sometimes longer.[46] He would also return for medical appointments.[47]
[45] Exhibit 4, para 33.
[46] Exhibit 3, para 21.
[47] Exhibit 4, para 32.
In the first few years upon his return to Perth, he would stay with EF.[48] More recently, he has stayed with IJ after EF moved out of Perth.[49] He returned to Perth and stayed with his daughters often enough and for long enough to form a close relationship with his grandchildren.[50]
[48] Exhibit 4, para 33.
[49] Exhibit 4, para 33.
[50] Exhibit 3, para 22.
Throughout this period, he has retained all of his healthcare requirements and contacts in Perth. As previously noted, he would return to Perth for medical appointments. In particular, he suffers from glaucoma and he has retained an ophthalmologist in Perth throughout his time travelling to Bali.[51]
[51] Exhibit 4, para 32.
He has also retained a general practitioner in Perth. He has been a patient of a Dr C, with a practice in Perth's south, since the 1980s. And when that doctor retired last year he became a patient of another doctor in the same practice.[52] He has also retained an Australian Medicare card, the address for which is in Western Australia.[53]
[52] Exhibit 4, para 32.
[53] Exhibit 1, page 30.
He also receives an Australian pension, a Centrelink address for which is also in Perth.[54] Similarly, he banks with an Australian bank and bank statements are sent to a Perth address, that of IJ, which is where he has stayed in recent years when in Perth.[55]
[54] Exhibit 1, pages 20 – 21.
[55] Exhibit 1, pages 22 – 27.
He holds an Australian passport.[56] In order to take Australian citizenship, he renounced his Dutch citizenship.[57] He does not hold Indonesian citizenship.[58]
[56] Exhibit 1, page 19.
[57] Exhibit 4, para 9.
[58] Exhibit 2, para 39.
In early 2020, he returned to Bali just prior to the COVID pandemic.[59] As a result of subsequent travel restrictions, he did not return to Perth until January 2023.[60] He was only here for a few weeks before returning to Bali in February 2023.[61] He did not return again to Perth until 5 February 2024. He did not expect to stay in Bali for so long this most recent time.[62]
[59] Exhibit 4, para 40.
[60] Exhibit 2, paras 29 – 30.
[61] Exhibit 2, paras 31 – 32.
[62] Exhibit 2, para 35.
He stayed for so long due to a deterioration in his health which made travel difficult and was such that he required EF and her husband to fly to Bali and travel with him on his return on 5 February 2024.[63]
[63] Exhibit 4, para 47 – 54.
On his return, he was taken directly to Fiona Stanley Hospital where he was diagnosed with a malignant tumour on his larynx and a tracheostomy was performed.[64]
[64] Exhibit 4, paras 56 – 59.
The hospital notes from 5 February record in two places that he has been 'living in Bali'. One record is in the notes taken in the Emergency Department. The other record says that he 'lives in Bali (has been for > 20 years)' and is from the notes made by an ENT (ear, nose, and throat) consultant.
In viva voce evidence, both his daughters were unable to explain how those notes were taken. That is, both of them said that they did not remember telling hospital staff that their father lived in Bali. Nor do they remember anyone else doing so. One pointed out that the note to the effect that GH has lived in Bali for more than 20 years is, at least, factually incorrect, as he has only been travelling back and forth since about 2008 and 2009.
Both daughters said that Dr KL first raised the issue of GH 'living in' Bali when he discussed the first assessment on 22 February, more than two weeks after those notes were taken. Both said that they were not given an opportunity to discuss that issue. I do not understand them to have been critical of Dr KL when they gave that evidence.
Given the stress associated with bringing their father back from Bali, taking him to the Emergency Department and having him assessed, it is not surprising that there is no recollection of a matter the significance of which would become apparent only later.
However, the reality is that someone told Fiona Stanley Hospital staff that GH was 'living' in Bali even if the arithmetic as to how long that has gone on is plainly wrong.
Against those statements as to where he has 'lived' is the evidence as to where he calls home. GH's statement says that he does not consider Bali to be his home and that his home is in Western Australia.[65] He says that he has never considered Bali home and has always thought of himself as a guest there.[66] EF's evidence is that when her father travelled to Bali, he would say that he is 'going to Bali', and when coming back to Perth, he would say that he is 'coming home'.[67] IJ says that she does not think her father has an emotional connection to Bali and that living there merely gave him purpose after his separation from S.[68]
[65] Exhibit 2, para 36.
[66] Exhibit 2, para 37.
[67] Exhibit 4, para 64.
[68] Exhibit 3, para 61.
GH says that he has no wish to be buried in Bali.[69] All three applicants say that his support network is here in Perth: his two daughters, their husbands, children, and grandchildren. He says he has no partner and only 'casual friends' in Bali.[70]
[69] Exhibit 2, para 43.
[70] Exhibit 2, para 42.

The Correct and Preferable Decision

I am satisfied that between 1977, when he returned to Perth from New South Wales with his family, and about 2008 – 2009 GH was ordinarily resident in Western Australia. As Ms Young SC submits, during that time, he 'built a life for his family here'. It was his home. He lived and worked here. He raised his daughters. There is no suggestion that he was ordinarily resident anywhere else and there can be no suggestion that he was not ordinarily resident in Western Australia in that period.
Since then, he has moved between Bali and Perth. He has spent more time in Bali than in Western Australia. But I do not think that that time away from Western Australia is such as to mean that he was not ordinarily resident in Western Australia during that time.
The fact that he owned no real property in Western Australia is of no weight. Amongst other things, he has not owned real property in WA at all since 1977.
What is critical in my view is that he has always maintained both a physical and emotional connection to Western Australia. The physical connection is both by way of maintaining possessions in the home of his daughter, where he would stay when in Perth, as well as continuing personal and administrative ties associated with banking, Medicare, Centrelink and, significantly, medical assistance.
He does not appear to have had any real physical connection to Bali. He does not appear to have had a constant place of accommodation there. In any event, nothing stayed there when he returned to Perth.
Emotionally, it is clear that his entire support network is in Perth. He also says that he considers Perth home. In that regard, I place considerable weight on the evidence that he does not appear to have called Bali 'home' when returning to it, but called Perth 'home' when returning here.
Most critically, in my view, all of his healthcare needs are met in Western Australia and, as far as I can see, have always been met in Western Australia at least since 1977.
The evidence about his very recent health is that he was encouraged by his daughters to seek medical treatment in Bali. That appears to have been an exception and he does not appear to have had a doctor to go to. The evidence is that he went to a clinic. By contrast, he retained the same Perth based GP from the early 1980s through to the last year when the doctor retired and upon such retirement commenced with another GP from the same practice. Equally, he has continued seeing the same specialist ophthalmologist in Western Australia for many years.
In that regard, therefore, it cannot be said that he is taking advantage of this State's voluntary assisted dying scheme by simply visiting Perth for that purpose. His longevity of medical care in this State is entirely consistent with the principles set out in s 4 of the Act.
In my view, there is a considerable analogy to be drawn with the facts and circumstances of the VCATs decision in NTJ.
In that case, the patient had lived in country Victoria for 13 years and raised his son there. After his son left home, he retired, bought a caravan, and spent the following years travelling Australia looking for fishing destinations.[71]
[71] NTJ, para 54.
Between trips, he would return to Victoria and stay at a caravan park or with friends. That would appear to have gone on since 2006 in circumstances where the matter came before the VCAT in 2020. In that case, President Quigley held as follows:
In my view, the sort of circumstance and lifestyle that BTR adopted in his retirement would not be uncommon. A lifestyle where one's base is in Victoria and that is a place to which one returns, whether common unusual attachments to a place which have, in part, a physical association and the need for a home base address such as a driver's licence, car registration, and insurance, Medicare, or Centrelink registration but not necessarily require real property ownership or returning to a fixed address does not preclude a finding that a person is ordinarily resident in Victoria.
This is particularly so when one considers the clear intention that voluntary assisted dying under the VAD act is to be restricted to Victorians… I do not consider that an interpretation of 'ordinarily resident' is intended to preclude someone in the circumstances of BTR who has a long association as a permanent resident of Victoria, regularly returns home to Victoria, and has his nearest family resident in this state.[72]
[72] NTJ, paras 85 – 87.
Ms Young SC made a similar submission at the hearing to the effect that the legislative intent of the Western Australian VAD Act was not to deny someone in GH's position the right to choose voluntary assisted dying. GH was not, she submitted, a tourist with a home elsewhere but was, rather, someone who has come home to die peacefully with his family.
With respect, I agree. In my view, and I find that, GH has been ordinarily resident in the State for more than 12 months. Indeed, I find that he has been ordinarily resident in this State since 1977. That is, in my view, he remained ordinarily resident in this State throughout the period of his life from about 2008 to 2009 to earlier this year during which time he spent more time out of the jurisdiction than in it.
Throughout that time, with the exception of the COVID period during which travel was effectively impossible, he often returned to the place he called home. Western Australia is where all of his family reside with whom he obviously has a close and loving relationship, with whom he stayed, and where he kept his few possessions that did not otherwise travel with him. Most critically, as I have already said, in the current circumstances, Western Australia is where he received his medical care throughout that period. In my view, GH satisfies the criterion set out in s 16(1)(b)(ii) of the VAD Act.
I am satisfied, and I find, that as at the First Request GH had been ordinarily resident in this State for at least 12 months even if he had 'lived' in Bali for much of the time since 2008 or thereabouts. He therefore meets the eligibility criteria in s 16(1)(b)(ii) of the VAD Act. Accordingly, I will make the orders sought and set out in the Minute of Proposed Orders filed on behalf of the applicants on 29 February 2024.
Finally, I thank Senior Counsel and the three applicants for the assistance I have received and the manner in which this proceeding has been handled in obviously difficult circumstances and within very tight timeframes.

Orders

The Tribunal orders:

1.The application for a review of the decision of the coordinating practitioner of 22 February 2024 is allowed.
2.The decision of the coordinating practitioner of 22 February 2024 is set aside and, in substitution for that decision, the Tribunal decides that the second applicant, GH, is a person who, at the time of making the first request on 22 February 2024, had been ordinarily resident in Western Australia for a period of at least 12 months and the second applicant therefore meets the eligibility criterion in s 16(1)(b)(ii) of the Voluntary Assisted Dying Act 2019 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PN
Associate to Deputy President Judge Jackson
22 MARCH 2024