NP and QR - [2024] WASAT 97

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: VOLUNTARY ASSISTED DYING ACT 2019 (WA)
CITATION:   NP and QR [2024] WASAT 97
MEMBER:   PRESIDENT GLANCY
HEARD:   9 AUGUST 2024
DELIVERED          :   9 AUGUST 2024
PUBLISHED           :   11 SEPTEMBER 2024
FILE NO/S:   VAD 6 of 2024
BETWEEN:   NP
Applicant

AND

QR
Respondent

Catchwords:

Voluntary assisted dying - Review of decision of coordinating practitioner - Statutory interpretation - Meaning of 'ordinarily resident' - When a person is ordinarily a 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 17, s 27(1), s 27(2)
State Administrative Tribunal Rules 2004 (WA), r 9
Voluntary Assisted Dying Act 2019 (WA), s 4, s 16(1)(b)(ii), s 18, s 83, s 84, s 84(1)(a)(i), s 84A(1), s 89(2)

Result:

Decision of the coordinating practitioner is set aside and substituted with decision that the applicant meets the ordinary resident eligibility requirement

Category: B

Representation:

Counsel:

Applicant	:	Mr T Pontre
Respondent	:	In Person

Solicitors:

Applicant	:	Francis Burt Chambers
Respondent	:	N/A

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

AB and CD [2024] WASAT 6
BMR, MTH and CJG and The Coordinating Practitioner for MHT [2024] WASAT 44
EF, GH and IJ and KL [2024] WASAT 18
HM and The Co‑ordinating Practitioner for HM [2024] WASAT 23
NTJ v NTJ (Human Rights) [2020] VCAT 547

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been edited from the transcript of the hearing to make necessary corrections or annotations, for the purposes of correcting grammatical errors or infelicity of expression, to add relevant authorities and to remove information which may tend to identify the people referred to in s 90 of the Voluntary Assisted Dying Act 2019 (WA).)

Introduction and outcome

NP was born in 1952. He was diagnosed with pancreatic cancer in April of this year. On 6 July 2024, NP requested access to voluntary assisted dying under the Voluntary Assisted Dying Act 2019 (WA) (VAD Act). That was a first request for the purposes of s 18 of the VAD Act.
The respondent, the coordinating practitioner, QR, decided that NP was ineligible to access voluntary assisted dying because he had found that NP was not ordinarily resident in Western Australia for a period of at least 12 months prior to making the first request. He formed that view because NP had only returned to Western Australia in June of this year following more than a year living elsewhere.
NP has applied for a review of that decision by the Tribunal in accordance with s 84 of the VAD Act.
I have concluded that the correct and preferable decision as at the date of the decision on review is that, at the date of the first request, NP had been ordinarily resident in Western Australia for a period of at least 12 months.
Accordingly, the decision of the coordinating practitioner must be set aside and substituted with the decision that the applicant is a person who was, at the time of the first request on 6 July 2024, ordinarily resident in Western Australia for a period of at least 12 months and that the applicant therefore meets the eligibility criteria in s 16(1)(b)(ii) of the VAD Act.

Procedural history

The review application was lodged with the Tribunal on 18 July 2024.
The Tribunal held a directions hearing on 22 July 2024 and made the following orders:
(i)joining the coordinating practitioner as the respondent, and that he will be referred to in any published matter relating to this matter as QR;
(ii)that either the Board or the Chief Executive Officer of the Department of Health, if they wish to be heard on a review, were to advise my Associate of that intention by close of business on 29 July 2024;
(iii)programming the filing of evidence and submissions;
(iv)provisionally listing the matter for hearing on either 5, 9 or 12 August 2024;
(v)asking QR to advise the Associate of which of those three days he was available to attend the hearing and that he do so by 23 July 2024;
(vi)that the Tribunal would seek to obtain the assistance of pro bono legal counsel for the applicant;
(vii)that, by 2 August 2024, NP was to indicate whether or not he required QR to be available for questioning at the hearing.
The Tribunal is grateful to QR for making himself available at short notice and to the NP's counsel for agreeing to act as pro bono counsel, both to assist NP and the Tribunal.

Nature of the review proceeding under the Voluntary Assisted Dying Act

The application for review comes within the Tribunal's review jurisdiction: s 17 of the State Administrative Tribunal Act2004 (WA) (SAT Act). The purpose of a review is to decide the correct and preferable decision as at the date of the decision on review: s 27(2) of the SAT Act.
The review is conducted by way of a hearing de novo. That means that we are not confined to considering the matters that were only before the original decision-maker but can consider new material, whether or not it existed at the time of the decision being reviewed or not: s 27(1) of the SAT Act.

Evidence on review

In determining the review application I had regard to the following material:
(i)the witness statement of NP dated 2 August 2024;
(ii)the witness statement of NP's wife, dated 2 August 2024;
(iii)a letter from NP's son dated 15 July 2024; and
(iv)a letter from QR dated 24 July, which expresses his reasons for his decision.
I also had regard to material that was also provided by QR in accordance with the orders that were made on 22 July 2024. They were:
(i)an NHMS End of Life Care Outward Referral form;
(ii)a letter from an Adelaide doctor to NP's oncologist, which was dated 22 May of this year;
(iii)a medical report dated 26 April of this year concerning NP's diagnosis;
(iv)Clinipath pathology results from testing of samples collected on the 26 April 2024;
(v)a letter from a medical oncologist at Sir Charles Gairdner Hospital;
(vi)a letter from a doctor dated 24 June 2024;
(vii)medical notes of 24 June 2024;
(viii)the first request report form; and
(ix)the first assessment report form.
In addition, I had regard to the documents which formed the Hearing Book:
(i)submissions of QR dated 24 July 2024 and the attachments thereto);
(ii)NP's submissions dated 2 August 2024;
(iii)NP's bundle of documents dated 1 August 2024;
(iv)witness statement of NP's wife dated 2 August 2024;
(v)witness statement of NP dated 2 August 2024; and
(vi)submission statement of QR dated 5 August 2024.

Standard of proof

The review application is to be determined to the civil standard. Accordingly, when in these reasons I say that I am satisfied of a particular matter of fact, I should be understood to mean that I am satisfied on the balance of probabilities as to the existence of the fact or matter.

Findings regarding the evidence

None of the evidence that I had before me has been the subject of any challenge. There was no basis upon which I could have found that any of the evidence was not truthful, accurate or reliable. The evidence given by NP was consistent with that given by his wife and son and, generally speaking, with the history that was recorded in the end-of-life referral form provided to QR and the other medical reports to which I have had regard. Therefore, I accept that all of the evidence given was honest, accurate and reliable.

Standing of the Applicant

Section 84 of the VAD Act provides that only eligible applicants can apply for a review of various decisions that are made under that Act. The term 'eligible applicant' is defined in s 83 to include a patient who is the subject of a decision made which is referred to in s 84(1) of the VAD Act.
A decision that person 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 is a decision which an eligible applicant is able to have reviewed by the Tribunal. I find that NP has standing to apply for a review as a patient who is the subject of a decision, the kind referred to in s 84(1)(a)(i) of the VAD Act.

Other criteria for application under s 84(1(a)(i) of the VAD Act

I am satisfied that s 84A(1) of the VAD Act which confers jurisdiction on the Tribunal to review the decision has been met. The application was brought within the 28 days of the decision having been made, which is a requirement of Rule 9 of the State Administrative Tribunal Rules 2004 (WA), that application having been brought to the Tribunal on 17 or 18 July 2024.

Construction of s 16(1)(b)(ii) of the VAD Act

The only issue in the review concerns whether NP was ordinarily resident in Western Australia for a period of at least 12 months prior to the making of the first request, as is required by s 16(1)(b)(ii) of the VAD Act. There is no other eligibility criteria in issue in this matter.
Whether NP has been ordinarily resident in Western Australia for a period of at least 12 months at the date of making the first request is to be judged at the time the first request was made. In this case, the assessment is to be judged as made at 6 July 2024.
Subject to one qualification, NP accepts the construction of the term 'ordinarily resident' as determined by the former President of the Tribunal, Pritchard JA, in AB and CD [2024] WASAT 6, and in other matters decided by the Tribunal since, those being EF, GH and IJ and KL [2024] WASAT 18, HM and The Co‑ordinating Practitioner for HM [2024] WASAT 23, and BMR, MTH and CJG and The Coordinating Practitioner for MHT [2024] WASAT 44.
In AB and CD, Pritchard JA, the then President of the Tribunal, considered the meaning of the phrase 'ordinarily resident' and said, at [22]:
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.
Her Honour also identified, at [26] of AB and CD, that the requirement is that the person have been ordinarily resident for a continuous period of at least 12 months prior to the first request. That is a period of time, when taken together, adds up to 12 months will not suffice.
In AB and CD at [29], Pritchard JA observed that the requirement that the person may have been 'ordinarily resident' in Western Australia for at least 12 months immediately prior to making the first request does not require that the person not have left Western Australia during that 12 month period. It is possible to meet the requirement even if a person has been absent from Western Australia for a period of time within the period of making the first request.
I respectfully agree with Justice Pritchard's observations as to the construction of s 16 of the VAD Act to which I have referred.
Drawing on the decision of Quigley J, who was then the president of the Victorian Civil and Administrative Tribunal, in NTJ v NTJ (Human Rights) [2020] VCAT 547, Pritchard JA summarised the principles which are derived from the authorities about the meaning of the expression 'ordinarily resident'. They are firstly, whether a person is ordinarily resident in a place is a question of fact and degree.
Secondly, to say that a person is ordinarily resident in a place means more than merely residing in a place, it is the settled and usual place of abode, a place where a person regularly or customarily lives.
Thirdly, there must be some element of permanence to be contrasted with a place where the person stays only casually or intermittently.
Fourthly, a person may be ordinarily resident in more than one place at the same time.
Fifthly, a temporary absence from a place may not prevent a person from being ordinarily resident in that place, it is a question of fact and degree at which point a temporary residence from a place might prevent it from being proper to regard the person as ordinarily resident in that place.
Sixthly, whether the person intended to return to the place after the temporary absence is relevant to determining whether they are ordinarily resident in the place during the absence.
Seventhly, it is not necessary that the person have real property ownership in the place or a fixed address to find that the person is ordinarily resident in the place.
Eighthly, the following considerations are relevant to the determination of whether a person is ordinarily resident in a place:
(a)the person's subjective opinion and intentions as to where or how they view themselves as ordinarily resident,
(b)whether the person is able to adduce evidence of common or usual attachment to the state by way of things such as a driver's licence, car registration, insurance, Medicare or Centrelink registration or otherwise;
(c)whether the person has a long association with the place as a permanent resident and who, despite absences, including lengthy ones, regularly returns home to the place and whether the person's close associations to the people in the state such as family continue.
While the meaning of that same phrase has been considered in other contexts, as Pritchard JA observed in AB and CD, the phrase 'ordinarily resident' must be understood in its context, which includes the legislative purpose for the limitation. That was identified by her Honour at [27] of her judgment in AB and CD where her Honour identified that the purpose was:
… to exclude those who might come to the state temporarily and briefly and only for purposes of accessing voluntary assisted dying.
In the same paragraph, her Honour observed that 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 for access to voluntary assisted dying.
As has been noted in each of the earlier cases decided in this jurisdiction, the context also includes the principles set out in s 4 of the VAD Act. Those principles emphasise the desirability of persons approaching the end of their life to be provided with high quality care and treatment and the benefit of therapeutic relationship.
Compliance with those principles would be difficult for a person who came to state only temporarily for the purpose of accessing voluntary assisted dying, and it is for that purpose that the VAD Act contemplates that a person be ordinarily resident in this state for a period of 12 months prior to making the first request.
NP submits that he generally accepts the construction of the statutory criteria as set out in previous decisions of this Tribunal, subject to one clarification. NP submits that the construction and conclusion of Deputy President Judge Vernon as to the meaning of the phrase placed perhaps too little weight on statutory purpose, which he submits is relevant when determining whether a person meets the test of ordinary residence.
Her Honour Judge Vernon in HM and The Coordinating Practitioner for HM, and in BRM, MTH and CJG and The Coordinating Practitioner for MTH found that each applicant was not medico-tourist and hence not a person the legislation intended to exclude from accessing voluntary assisted dying in Western Australia, and yet then found that that fact could not override the ordinary and natural meaning of the criteria the legislation had seen fit to apply in s 16(1)(b)(ii) of the VAD Act. The applicant submitted that that construction placed too little weight upon the statutory purpose.
In my view what the Deputy President was saying in those cases was that even a person who was not a medico-tourist and who had previously had a long association with Western Australia may nevertheless be found not to have been ordinarily resident in Western Australia for a period of 12 months prior to the first request when the ordinary meaning of those words are applied and that if the question was all that Parliament was concerned with it could have used words to that effect. I consider that she was right in that regard.
That does not mean, of course, that the purpose of the legislation is not relevant to an assessment of the eligibility criteria. I respectfully agree and adopt the construction of the provision which has been set out in all of the previous judgments of the Tribunal.

Factual findings

Based on the evidence before me, I am satisfied of and make the following findings of fact.
NP is not someone who came to Western Australia only for the purpose of accessing voluntary assisted dying here. In my view, NP can properly be regarded as a Western Australian, having lived in Western Australia for most of his adult life, despite having been born overseas. NP regards himself as a West Australian and has a long‑standing association with the state.
Between 1982 and 2021, NP was ordinarily resident in Western Australia. He and his wife made their home here and raised their family here. During that time, they purchased and lived in various properties in Western Australia. NP worked in Western Australia for 38 years before retiring. NP has held a West Australian driver's licence for around 40 years. In May of 2022, NP applied for and obtained a South Australian driver's licence, but that was because he understood the law required that someone who was living outside of the state for more than 90 days do so.
NP has never held a bank account in any branch of a bank outside of Western Australia. NP has held RAC membership in Western Australia since 1982.
NP has one son who now lives in Western Australia. NP and his wife have many friends in Western Australia. NP has held a West Australian Seniors card since he was eligible to do so.
But for the fact that between November 2021 and June 2024, NP and his wife were absent from Western Australia, except for two one-week trips back to Perth, I would have no difficulty in finding that NP had been ordinarily resident in Western Australia for a period of 12 months prior to 6 July 2024. The issue is whether the fact that they were absent for that period of time changes that conclusion.
About that question, I am satisfied of and make the following findings of fact.
NP and his wife sold their home in June 2021, following which they bought a caravan and a tow vehicle and embarked on a holiday of a lifetime. It was intended to be a trip around Australia, following which they would return to Western Australia in 2023, where they intended again to resume living permanently.
While NP and his wife would have liked to maintain a home in Western Australia during their extended holiday, it was not financially viable for them to do so. Accordingly, they sold their home and stored some precious items, such as pictures, family heirlooms, ornaments and plants with their eldest son at his home, and some more bulky items, such as beds, chest of drawers, tools, cleaning implements and the like with another friend. Their intention was that those items would all be available to them upon their return to Perth at the end of 2023.
NP and his wife initially travelled throughout Western Australia and, after a time, towards the end of November 2021, they travelled to South Australia, around which they travelled for some time. Although they intended to travel on to Victoria and then on to Queensland and the Northern Territory, they broke their journey for several weeks to stay in Adelaide to assist their younger son, who was then living in Adelaide.
In January 2022, they travelled to Melbourne, where they spent some time with another family member. While in Melbourne, they received a call from their younger son, who was still in Adelaide, asking for some urgent help. A decision was made to stay for a time in Adelaide so that they could assist their younger son through some difficult times he was then experiencing.

NP and his wife returned to Adelaide at the end of January 2022. Their plan was then that they would remain in Adelaide with their son until the end of 2022, travel some more and ultimately return to Western Australia in 2024. Rather than stay in the caravan, a decision was made to sell it and buy into a lifestyle village. I accept that that was a financial decision which was made to ensure that they were able to obtain Centrelink rental assistance payments and to maximise their financial position for when they returned to Perth.
In November 2022, NP and his wife sold their four-wheel drive vehicle when they received a very good offer for it and the caravan was sold in April 2022. They returned to Perth to visit in October 2022, and returned again to Perth in April 2023 to visit their elder son and friends, staying approximately three weeks at that time.
In early 2023, NP and his wife put the lifestyle village on the market and, in April 2024, after returning to South Australia from Perth NP was diagnosed with pancreatic cancer. As a consequence a decision was made to bring an end to their travels and to return immediately to Perth. NP and his wife returned to Perth as soon as possible, arriving in Western Australia on 10 June 2024.
I accept that at no time did either NP or his wife regard the move from Western Australia as permanent and that at all times they had a fixed plan to return to Western Australia at a reasonably specific time, albeit that that timeframe was adjusted somewhat as a result of decisions to defer travel in order to provide support to their son and a decision to bring their travel to an end earlier than anticipated to return to Western Australia permanently after NP's diagnosis. The reason for the return to Perth being that he regarded Western Australia as his home and wanted to be back here to spend his remaining time with family and friends in Western Australia.

Decision on review

In my view, the correct and preferable decision based on the evidence, recognising that the question to be determined is one of fact and degree, is that NP was, before 6 July 2024, a person who was ordinarily resident in Western Australia for a period of 12 months. I have reached that decision because the totality of the evidence demonstrates that between 1982 and 2021, NP lived, worked and raised his family in Western Australia on a permanent basis, had friends here, owned property here and had a driver's licence in Western Australia.
NP left Western Australia for an extended holiday but never intended to make any place other than Western Australia his home. NP had firm plans to return to Western Australia after a period of travel and a specific date of return in mind, even though it was extended when the need to provide support to his son arose. NP left property in Western Australia with friends and family to be returned to him and his wife upon their return, and he returned home in June of this year with the intention of living in Western Australia for the remainder of his life, close to family and friends.
The fact that at all times there was an intention to return home at a relatively specific point in time means that the facts in this case differ in an important way from that found by Deputy President Judge Vernon in HM and The Coordinating Practitioner.
I reach that conclusion, even though some of the facts point to the opposite conclusion, and, in particular, I refer to the change of the driver's licence and the purchase of the residence in South Australia.
However, in my view, the majority of the indicia point to NP meeting the test set out in s 16(1)(b)(ii) of the VAD Act, having maintained a physical and emotional connection to Western Australia while absent for it during his travel. The purchasing of the home in South Australia and the obtaining of a South Australian driver's licence may mean that NP might also be found to have been ordinarily resident in South Australia for some time. However, having a second place of residence does not preclude a finding that he was also ordinarily resident in Western Australia.

Orders

As the consequence of the decision, I will make the following orders:
The Tribunal orders that:
1.The application for review of the decision of the coordinating practitioner of 8 July 2024 is allowed; and
2.The decision of the coordinating practitioner of 8 July 2024 is set aside and, in substitution of that decision the Tribunal decides that the Applicant is a person who, at the time of the first request on 6 July 2024, had been ordinarily resident in Western Australia for a period of at least 12 months and that the Applicant, therefore, meets the eligibility criteria 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.
MS
Associate to the Hon Justice Glancy
11 SEPTEMBER 2024