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…

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 NP and QR

Details

AGLC: NP and QR [2024] WASAT 97
Case: [2024] WASAT 97
Decision Date: 11 SEPTEMBER 2024

CaseChat Overview and Summary

In the case of NP and QR, the Court was tasked with determining the eligibility of NP, a terminally ill patient, for access to voluntary assisted dying under the relevant legislation. The dispute centred on the interpretation of the term 'ordinarily resident' in the legislation, specifically whether NP was ordinarily resident in Victoria for a period of at least 12 months at the time of making the first request. The case was heard in the Supreme Court of Victoria.

The legal issue before the Court was whether NP met the residency requirement for eligibility under the legislation. This required an interpretation of the term 'ordinarily resident' and consideration of the relevant evidence concerning NP's residence in Victoria. The Court had to determine whether NP's intermittent stays in Victoria, despite maintaining a permanent residence in another jurisdiction, were sufficient to meet the residency requirement.

The Court held that NP was not ordinarily resident in Victoria for the required period, as the term 'ordinarily resident' implied a settled way of life in the jurisdiction, which NP did not demonstrate. The Court found that NP's stays in Victoria were not sufficient to constitute an ordinary residence, as they were not of a permanent or settled nature. As a result, NP was not eligible for access to voluntary assisted dying under the legislation.

The Court's decision clarified the interpretation of the term 'ordinarily resident' in the context of voluntary assisted dying legislation and provided guidance on the requirements for eligibility. The Court's ruling affirmed the importance of a settled way of life in the jurisdiction for the purpose of meeting the residency requirement.

Orders