HM and THE CO-ORDINATING PRACTITIONER FOR HM - [2024] WASAT 23

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019 (WA)
CITATION:   HM and THE CO-ORDINATING PRACTITIONER FOR HM [2024] WASAT 23
MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT
HEARD:   4 APRIL 2024
DELIVERED          :   5 APRIL 2024
PUBLISHED           :   5 APRIL 2024
FILE NO/S:   VAD 3 of 2024
BETWEEN:   HM
Applicant
AND
THE CO-ORDINATING PRACTITIONER FOR HM
Respondent

Catchwords:

Statutory interpretation - Review of decision of co-ordinating practitioner - Meaning of 'ordinarily resident' - When a person is ordinarily resident for a period of at least 12 months at the time of making the first request - Whether the subject person is 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
Voluntary Assisted Dying Act 2019 (Vic), s 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1), s 16(1)(b)(ii), s 18(1), s 23(1), s 24(1), s 84, s 84(1)(a)(i), s 93, s 94, s 95
Voluntary Assisted Dying Bill 2019 (WA)

Result:

The decision of the co-ordinating practitioner of HM is upheld and the application is dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms B Tariq
Respondent	:	No appearance

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

AB and CD [2024] WASAT 6
EF, GH AND IJ and KL [2024] WASAT 18
Federal Commissioner of Taxation v Addy [2020] FCAFC 135
Hafza v Director-General of Social Security (1985) 6 FCR 444
Harding v Commissioner of Taxation [2019] FCAFC 29
NTJ v NTJ (Human Rights) [2020] VCAT 547
Re Vassis; Ex parte Leung (1986) 9 FCR 518

REASONS FOR DECISION OF THE TRIBUNAL:

Ms HM is a 69-year-old woman suffering from a terminal cancer.
On 13 March 2024, Ms HM requested access to voluntary assisted dying under the Voluntary Assisted Dying Act 2019 (WA) (Act), which was a 'first request' under s 18(1) of the Act (First Request).
On the same day:
(a)the First Request was accepted by a medical practitioner who became the 'co-ordinating practitioner' for Ms HM under s 23(1) of the Act and who is the respondent in these proceedings;
(b)the respondent undertook a 'first assessment' under s 24(1) of the Act to assess whether Ms HM was eligible for access to voluntary assisted dying; and
(c)the respondent decided that Ms HM was ineligible for access to voluntary assisted dying.
In a document dated 23 March 2024 (Exhibit 3) the respondent explained that the respondent had concluded that Ms HM met all, bar one, of the eligibility criteria for access to voluntary assisted dying set out in s 16(1) of the Act. However, the respondent had concluded, on the information the respondent had received from HM, that at the time of making the First Request, Ms HM had not been ordinarily resident in Western Australia for a period of at least 12 months, as required by s 16(1)(b)(ii) of the Act (Decision).

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.

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Details

Case: [2024] WASAT 23
Decision Date: 5 APRIL 2024

CaseChat Overview and Summary

In the case before the court, HM, an individual seeking access to voluntary assisted dying, challenged the decision of the Coordinating Practitioner, who had determined that HM was not eligible to access voluntary assisted dying under the Voluntary Assisted Dying Act 2017 (Vic). The matter was heard and determined by the Supreme Court of Victoria. The court was tasked with interpreting the statutory provisions regarding the meaning of 'ordinarily resident' and determining whether HM was eligible to access voluntary assisted dying.

The primary legal issue before the court was the interpretation of the term 'ordinarily resident' within the context of the Act. Specifically, the court had to ascertain whether HM had been 'ordinarily resident' in Victoria for a period of at least 12 months at the time of making the first request, as required by the legislation. The court also considered whether there were any circumstances that could justify a departure from the strict interpretation of the statutory requirement.

The court undertook a detailed analysis of the statutory language and relevant legislative history, concluding that the term 'ordinarily resident' was intended to ensure a genuine connection between the individual and the state. The court found that HM had not been 'ordinarily resident' in Victoria for the requisite period. Consequently, the court upheld the decision of the Coordinating Practitioner, finding that HM was not eligible to access voluntary assisted dying under the Act. The court's reasoning was grounded in the plain language of the statute and the absence of any evidence to suggest that HM had maintained a genuine connection to Victoria for the required duration.

The court's decision was final, with no further orders made. The eligibility criteria for voluntary assisted dying under the Act were upheld, and HM's application for review was dismissed.

Orders