Voluntary Assisted Dying in NSW: The Law and Who It Excludes

Voluntary assisted dying in NSW: the law, the numbers, and who it categorically excludes

Voluntary assisted dying became available in New South Wales on 28 November 2023, under the Voluntary Assisted Dying Act 2022.

This guide sets out what the law requires, what the current numbers show, and the one feature of it that matters most for people with disability — which is that a very large proportion of them cannot access it, as a matter of law, regardless of their circumstances.

We are a disability provider. We do not take a position on whether voluntary assisted dying should exist, and this guide does not argue either way. People hold strong and considered views in both directions, including people with disability and the organisations that represent them, and we set out below what those positions are rather than adjudicating between them.

What we do have a position on is accuracy. People we support, and their families, encounter this subject at the worst possible moment and frequently with wrong information. Nothing here is legal or medical advice — eligibility is determined by trained practitioners under the Act, and NSW Health is the authoritative source.

What the law requires

To be eligible, a person must meet all of the following:

• Be an adult, 18 or over, who is an Australian citizen, a permanent resident, or has lived in Australia for at least three continuous years
• Have been ordinarily resident in New South Wales for at least 12 months at the time of making a first request, or hold a residency exemption from the Board
• Have at least one advanced, progressive disease, illness or condition that will likely cause death within six months — or within 12 months for neurodegenerative conditions — and that causes suffering that cannot be relieved in a way the person considers tolerable
• Have decision-making capacity in relation to voluntary assisted dying
• Be acting voluntarily and without pressure or duress
• Have an enduring request for access

Note two features of that list. The suffering test is subjective — it is suffering the person considers intolerable, not suffering a clinician considers intolerable. And the prognosis window is longer for neurodegenerative conditions, which is directly relevant to motor neurone disease and similar conditions.

The process runs through a first request, a first assessment by a coordinating practitioner, an independent consulting assessment by a second practitioner, a final request, and an administration decision — with oversight by the NSW Voluntary Assisted Dying Board. Practitioners must have completed specific training to participate. The substance must be prescribed by a doctor eligible to provide voluntary assisted dying services. The detail of the process, the forms and the timeframes are set out by NSW Health and in the Act itself.

Administration can be either self-administered by the person or administered by a practitioner.

It is against the law to pressure somebody to request voluntary assisted dying.

The rule that closes the door

Here is the provision that determines this subject for most of the people this sector supports. NSW Health states it plainly:

“Only the person who wants voluntary assisted dying can ask for it.”

And the Board’s own material on the Act’s safeguards states: “No one can request voluntary assisted dying on someone’s behalf.”

There is no substitute decision-making pathway. A guardian cannot request it. A person responsible cannot request it. A parent cannot request it for an adult child. It cannot be included in an advance care directive for later activation. And capacity must be maintained throughout the process — a person who loses capacity partway through cannot continue.

The consequence is categorical. Anybody who cannot make and sustain this decision themselves cannot access voluntary assisted dying in New South Wales, however severe their illness, however intolerable their suffering, and however clear it may be to those around them what the person would have wanted.

That excludes, as a matter of law, people with moderate to profound intellectual disability who cannot meet the capacity threshold; people whose capacity has been lost to advanced dementia; people with severe acquired brain injury affecting decision-making; and anybody in the final stage of a condition where consciousness or cognition has gone.

And the Board’s figures show capacity doing exactly that work in practice. In the 2024–25 reporting year, capacity was a main reason for ineligibility: 37 of the 175 people found ineligible at first assessment, and 20 of the 35 found ineligible at consulting assessment. In a small number of cases — nine and four respectively — practitioners could not confirm that a person who had lost capacity was not acting under pressure or duress, and the Board reviewed each of those closely.

What the numbers show

From the NSW Voluntary Assisted Dying Board’s annual report for 1 July 2024 to 30 June 2025:

2,295 people made a first request. 2,146 had a first assessment.

1,028 people died after being administered the substance — 839 of them (81.6 per cent) following practitioner administration, and 189 (18.4 per cent) following self-administration.

The diagnoses at first assessment:

That distribution is worth noticing for a reason beyond this guide. Over 70 per cent had cancer — which reflects the broader pattern across all end-of-life services, where cancer has a recognisable terminal trajectory and non-malignant conditions and lifelong disability are consistently under-represented and under-served. The same structural bias that sends people with non-cancer conditions to palliative care later shows up here.

The report does not address disability specifically, and does not describe any supported or substitute decision-making arrangements — because under the Act there are none to describe.

The two positions, fairly stated

People hold strong views here, and a disability provider writing about this owes its readers both arguments rather than its own.

The case made by those concerned about voluntary assisted dying and disability, which disability advocacy organisations in Australia and internationally have put, runs broadly as follows. People with disability have historically had their lives systematically devalued, and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability documented how that devaluation operates in healthcare and elsewhere. In that context, a lawful pathway to an assisted death carries a risk that subtle pressure — a shortage of supports, a sense of being a burden, a clinician’s assumption about quality of life, a family under strain — shapes a decision that is formally voluntary. The concern is not usually that safeguards are absent but that they cannot detect pressure of that kind, particularly for somebody who has spent a lifetime being compliant with what services want. Some also argue that attention and resources directed at assisted dying should go instead to the palliative care, disability support and pain management that many people cannot currently access.

The case made by those who support access, including by people with disability who support it, runs broadly as follows. Autonomy is the principle disability rights movements have argued for most consistently, and a person with a disability who has decision-making capacity and a terminal illness has the same claim to control over their own death as anybody else. To exclude them, or to treat their choice as inherently suspect because of their disability, is itself a form of the paternalism the disability rights movement exists to oppose. The Act’s requirements — capacity, voluntariness, two independent assessments, an enduring request, a prohibition on pressuring anybody — exist precisely to address the coercion concern. And people with terminal neurodegenerative conditions, who are over-represented among those who access it relative to population, are frequently people with acquired disability.

Both of those arguments are made in good faith by people who care about the same population. We are not going to pretend to resolve them, and we would be suspicious of anybody who claimed to.

The corollary that matters most

Whatever view somebody holds, one practical conclusion follows from the capacity rule and it is the most important thing in this guide.

For most of the people this sector supports, voluntary assisted dying is not available. Which means good palliative care is not one option among several. It is the whole of what is available.

Symptom management that actually works. Pain assessment in somebody who cannot report pain. Advance care planning done early enough to carry the person’s voice. Anticipatory medications in the house. The capacity to die at home rather than in an emergency department. Somebody who knows them at the bedside.

If a person cannot access an assisted death, then the quality of everything else is the only thing that determines how their death goes. That is an argument for doing the rest of this library properly, and it applies regardless of where anybody stands on the Act.

What a disability provider’s position should be

This needs to be clear, because workers will encounter it and will not know what to do.

A provider does not facilitate and does not obstruct. Both are wrong. Our role is neither to advocate for access nor to prevent it.

A support worker does not advise. Not for, not against. A worker who tells a participant that voluntary assisted dying would be a reasonable option has stepped well outside their role, and so has one who tells them it would be wrong. Both are forms of influence on a decision that the law requires to be free of exactly that.

If somebody raises it, the right response is to take it seriously, not to answer it. That means: listen, do not shut the conversation down, do not express a view, and tell them you will help them speak to the right person. Then inform the appropriate clinician — the GP or palliative care team — and the person’s provider management, and document that the person raised it and what you said.

Do not treat it as a behaviour or a symptom. A person who says they want to die may be expressing despair, uncontrolled pain, fear, loneliness, or a considered position — and those need completely different responses. It is also, importantly, not automatically a safeguarding incident, and nor is it automatically a request for voluntary assisted dying. What it always is, is a signal that something needs attention from somebody qualified to assess it.

Where distress rather than a settled wish is the issue, that is what palliative care, pain management, psychological support and company are for — and the Lifeline number is 13 11 14, available 24 hours, with the NSW Mental Health Line on 1800 011 511.

The rules about who may raise the subject are set by the Act and differ between Australian states. Rather than paraphrase them, we would direct any clinician or provider to NSW Health and to the Act itself, because getting this wrong has consequences.

Conscientious objection. Individual practitioners, and in some circumstances organisations, may decline to participate, with accompanying obligations about what information must still be provided. Again, the specifics are in the Act and NSW Health’s guidance.

And the safeguarding obligation runs the other way too. If a worker has any reason to think somebody is being pressured toward requesting voluntary assisted dying — by family, by circumstance, by a service — that is a safeguarding concern and should be escalated. It is against the law to pressure somebody to request it, and the people most vulnerable to pressure are the people this sector supports.

What to do if a participant raises it

1. Stay in the conversation. Do not change the subject, and do not look alarmed.
2. Ask what prompted it, gently and without steering. Pain? Fear? Something they have read? A considered view?
3. Do not give a view. Not yours, not the organisation’s.
4. Say you will help them talk to someone who can answer properly — their doctor.
5. Tell the GP or palliative care team, and your manager.
6. Document it factually — what the person said, what you said, who you told, and when.
7. Check what is treatable. Uncontrolled pain, breathlessness, depression and loneliness are all treatable, and a wish to die that arises from any of them deserves treatment of the cause first.
8. Make sure they can get accurate information. NSW Health is the authoritative source, and NSW Health operates a care navigator service for voluntary assisted dying enquiries — ask them for the current contact details rather than relying on a third party.
9. Keep supporting them. Whatever they decide, and whatever you think.