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ORDER The Tribunal orders that:

1. Pursuant to section 143 of the Voluntary Assisted Dying Act 2024 (VAD Act), until further order and except as necessary to respond to or to take any procedural or other necessary action in relation to these proceedings: (a) there is to be no publication by any person (whether by social or traditional media, in digital, written or oral form, or in any other manner) of the matters contained in the documents filed with the Tribunal or received in evidence by the Tribunal in these proceedings; (b) there is to be no public access to the file and the audio and written records of these proceedings; and (c) the respondent is to be known as “respondent VAD 1/2026”.

2. Pursuant to section 145(1)(a) of the VAD Act, the Tribunal orders that the applicant has decision-making capacity in relation to voluntary assisted dying.

3. The Tribunal will provide reasons at a later date. And the Tribunal notes: The Tribunal intends to provide reasons for its decision to the parties along with proposed orders allowing publication of those reasons while protecting the anonymity of the respondent. The Tribunal intends to invite submissions from the parties as to what material, if any, should also be made accessible to the public.

………………Signed……………….. Presidential Member D Stewart For and on behalf of the Tribunal REASONS FOR DECISION Introduction 1. The applicant is asking for help in ending his life. He has made a request to access voluntary assisted dying (VAD) under the Voluntary Assisted Dying Act 2024 (VAD Act). The respondent has decided that the applicant does not meet various eligibility requirements under the Act. The Tribunal has been asked to review those decisions.

2. The Tribunal made orders on 4 April 2026 declaring that the applicant has decision-making capacity in relation to voluntary assisted dying, as well as other orders preserving the privacy of these proceedings. But the Tribunal was not able to review the other decision made by the respondent; that the applicant does not have an advanced condition which is expected to cause his death. The applicant may try again by making a further request, but for now the applicant is not able to access voluntary assisted dying.

3. The Tribunal indicated that it would provide the parties with reasons for its orders, along with suggested orders in relation to the publication of these reasons and possibly other materials relating to the proceedings. These are those reasons.

4. In making a declaration in this matter we in no way intend any criticism of the respondent. As set out below, the Tribunal made its declaration on the basis of the evidence before it at the time it made its decision, and relating to only one aspect of the respondent’s assessment on which they did not reach a final determination. The Tribunal thanks the respondent and their representatives for their conduct in this matter, including in attending hearings with limited notice.

5. Unless otherwise indicated, references in these reasons to a relevant condition are taken to be a relevant condition as required by section 11(1)(b) of the VAD Act. Similarly, references to decision-making capacity are taken to be decision-making capacity in relation to voluntary assisted dying as required by section 11(1)(d) of the VAD Act. A reference to ‘ACAT’ or ‘the tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the present tribunal members. Background

6. The applicant made a request to access voluntary assisted dying on 27 January 2026. The respondent, appointed as the coordinating practitioner, carried out their first assessment on that date, informing the applicant of their assessment on 23 February 2026. The respondent also had access to various medical reports and other information relating to whether the applicant met the eligibility requirements to access VAD.

7. In the first assessment report ‘locked’, which we take to mean dated, on 24 February 2026, the respondent decided that the applicant did not meet the eligibility requirements set out in section 11 of the VAD Act. In particular, the respondent decided that the applicant did not have an advanced condition, was not approaching the end of his life, and his condition was not expected to cause death. The applicant therefore did not have a relevant condition as required in section 11(1)(b) of the VAD Act. The respondent also decided it was uncertain whether the applicant had decision-making capacity in relation to voluntary assisted dying as required in section 11(1)(d) of the VAD Act. The respondent decided that the applicant met the other eligibility requirements in section 11 of the VAD Act.

8. In his application for review of the first assessment report, the applicant states that he has three medical conditions which, taken together have produced what he describes as Chronic Pain Syndrome (CPS). He claims these conditions will reasonably foreseeably cause his death, either through complications arising from a complete loss of mobility and reliance on high-dose sedation, or the intolerable pain leading the applicant to take his own life. He claims that his conditions are deteriorating, have been assessed as severe and not able to be managed, and cannot be cured. He claims his conditions are advanced, progressive, and terminal in effect.

9. The applicant sought orders from the Tribunal: (a) setting aside the first assessment; (b) substituting a decision that the applicant met the eligibility requirements, specifically that his conditions were expected to cause his death; and (c) allowing his application for VAD to proceed to the consulting assessment stage.

10. A directions hearing was held in this matter on 1 April 2026. The matter was then listed for a hearing to consider whether the Tribunal had jurisdiction to make the orders sought by the applicant. In particular, the Tribunal was to consider its jurisdiction to review the respondent’s decision that the applicant did not meet the eligibility requirement in section 11(1)(b) of the Act. Directions were made for the respondent and applicant to provide submissions going to that issue.

11. On 28 April 2026 the Tribunal heard submissions from the parties as to the Tribunal’s jurisdiction. The Tribunal indicated to the parties that it had decided it did not have jurisdiction to review the respondent’s decision that the applicant did not have a relevant condition as required in section 11(1)(b). However, the Tribunal listed the matter for a further hearing to conduct a review of the respondent’s decision that the applicant does not have decision-making capacity in relation to voluntary assisted dying as required by section 11(1)(d). After further material was filed by the respondent and hearing from the parties on that question on 4 May 2026, the Tribunal made the orders indicated above.

Statutory background

12. Broadly speaking, to access voluntary assisted dying requires a person to make three requests: a first request after which the individual is separately assessed by a coordinating practitioner and consulting practitioner; a second request confirming that the applicant requests access to VAD; and a final request which is followed by a final assessment.

13. After making the first request, the individual is assessed by a coordinating practitioner to decide if the individual meets the eligibility requirements set out in section 11(1) of the VAD Act, and, if so, that they also understand prescribed information about the VAD process which has been provided to them. Only if the coordinating practitioner in that first assessment decides that the individual meets the eligibility requirements will the individual’s request then be referred to another consulting practitioner for an assessment, and it is only if the consulting practitioner agrees that the individual meets the eligibility requirements that the individual will be able to make a second and then a final request.

14. The eligibility requirements are set out in section 11 of the VAD Act. Subsection 11(1) states: 11 Meaning of eligibility requirements (1) For this Act, an individual meets the eligibility requirements if— (a) they are an adult; and (b) they have been diagnosed with a condition that, either on its own or in combination with 1 or more other diagnosed conditions, is advanced, progressive and expected to cause death (the relevant conditions); and (c) they are suffering intolerably in relation to the relevant conditions; and (d) they have decision-making capacity in relation to voluntary assisted dying; and (e) their decision to access voluntary assisted dying is made voluntarily and without coercion; and (f) they have— (i) lived in the ACT for at least the previous 12 months; or (ii) been granted an exemption under section 154.

15. Subsections (2) – (7) go on to further define the requirements in subsections (1)(b) and (1)(c). They include: (3) For subsection (1) (b), an individual’s relevant conditions are advanced if— (a) the individual’s functioning and quality of life— (i) have declined or are declining; and (ii) are not expected to improve; and (b) any treatments for the conditions that are reasonably available and acceptable to the individual have lost any beneficial impact; and (c) the individual is approaching the end of their life.

16. The meaning of decision-making capacity in relation to voluntary assisted dying is set out in section 12: 12 Meaning of decision-making capacity (1) For this Act, an individual has decision-making capacity in relation to voluntary assisted dying if they can— (a) understand the facts that relate to a decision about accessing voluntary assisted dying; and (b) understand the main choices available to them in relation to the decision; and (c) weigh up the consequences of the main choices; and (d) understand how the consequences affect them; and (e) on the basis of paragraphs (a) to (d), make the decision; and (f) communicate the decision in whatever way they can. (2) An individual must be assumed to have decision-making capacity in relation to voluntary assisted dying unless it is established that they do not have decision-making capacity in relation to voluntary assisted dying. (3) In deciding whether an individual has decision-making capacity in relation to voluntary assisted dying, the following must be taken into account: (a) an individual’s decision-making capacity is particular to the decision they are to make; (b) an individual is capable of making a decision if they are capable of making the decision with adequate and appropriate support; (c) an individual must not be treated as not having decision-making capacity unless all practicable steps to support them to make decisions have been taken; (d) an individual must not be treated as not having decision-making capacity only because they— (i) make an unwise decision; or (ii) have impaired decision-making capacity under another Act, or in relation to another decision; (e) an individual who moves between having and not having decision -making capacity must, if practicable, be given the opportunity to consider matters requiring a decision at a time when they have decision-making capacity.

17. The making of the first assessment is provided for in section 16: 16 Coordinating practitioner to undertake first assessment (1) An individual’s coordinating practitioner must undertake an assessment (a first assessment) to decide whether the individual— (a) meets the eligibility requirements; and (b) if the coordinating practitioner decides that the individual meets the eligibility requirements—understands the information given to them under subsection (3). … (4) The coordinating practitioner may take the following into account when undertaking the first assessment: (a) any relevant information about the individual that has been prepared by another person who, in the opinion of the coordinating practitioner, has the appropriate skills and training to provide the information; …

18. Section 136 of the VAD Act provides that an affected person, which includes the applicant in this matter, may apply to the tribunal for review of a ‘reviewable decision’. A ‘reviewable decision’ is defined in section 134 as “a decision mentioned in Schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision”. Schedule 1 includes, as reviewable decisions, decisions made under section 16(1)(a) that an individual does not meet the eligibility requirements mentioned in sections 11(1)(d), 11(1)(e) and 11(1)(f)(i). It does not mention a decision that the individual requesting VAD does not meet the eligibility requirements mentioned in sections 11(1)(a), 11(1)(b) or 11(1)(c).

19. Section 145 of the VAD Act relevantly provides that where the tribunal reviews a decision that the applicant does not meet the eligibility criteria in section 11(1)(d), the tribunal must decide whether or not the applicant has decision-making capacity in relation to VAD. Under section 146, provided the tribunal does not also make an order that the applicant does not meet the eligibility criteria in sections 11(1)(e) and 11(1)(f)(i), an order of the tribunal that the applicant has decision-making capacity in relation to VAD is taken to be the decision of the decision-maker for the reviewable decision. Under section 147, if the Tribunal orders that the applicant does not have decision-making capacity in relation to VAD, then the applicant is taken not to have met the eligibility requirements, and the request and assessment process ends.

20. Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) states that a person may apply to the tribunal if an authorising law provides that the application may be made. An ‘authorising law’ is defined to include a Territory law that provides that an application may be made to the tribunal. The Tribunal is therefore dependent on the terms of the statute that provides it with authority; it does not have the power to act on the basis that a Territory law has been breached or an unmeritorious or unlawful decision has been made under a Territory law.

The Tribunal’s jurisdiction

21. As described above, the applicant had sought orders setting aside the first assessment and substituting a decision that the applicant’s conditions were expected to cause his death and that his request to access voluntary assisted dying proceed to a consulting assessment. In our view, the application to the Tribunal by the applicant was therefore, at least in part, seeking review of the applicant’s eligibility under section 11(1)(b) of the VAD Act. It was on this basis that the matter was listed for a hearing to consider the Tribunal’s jurisdiction to make the orders sought and directions made for both parties to provide submissions on that issue.

The respondent’s submissions on jurisdiction

22. The respondent, after setting out the legislative framework, submitted that the decision that the applicant’s conditions were not advanced and were not expected to cause death was not a reviewable decision as required by sections 134, 136 and Schedule 1 of the VAD Act. They submitted it was not permissible for the Tribunal to infer a broader power to engage in the review.

23. In the first assessment report, the respondent had assessed the applicant’s decision-making capacity as undetermined based on their “assessment that the applicant was not able to demonstrate an understanding of what would constitute 1 a terminal illness and whether his conditions would constitute a terminal illness”. The respondent accepted that their decision was equivalent to a decision that the applicant does not have decision-making capacity in relation to voluntary assisted dying and hence does not meet the eligibility requirement mentioned in section 11(1)(d). The respondent accepted this decision was reviewable by the Tribunal.

24. The respondent submitted, however, that the applicant’s understanding of what would constitute a terminal illness was not relevant to an assessment of whether

1 Respondent’s written submissions filed 8 April 2026 at [18] the applicant has been diagnosed with a relevant condition or otherwise meets the eligibility requirement mentioned in section 11(1)(b). A finding by the Tribunal that the applicant has decision-making capacity in relation to voluntary assisted dying would therefore be futile as it would not make the applicant eligible to continue through the voluntary assisted dying process. The respondent, while acknowledging the pain and distress arising from the applicant’s conditions, submitted it was open to the applicant to make another request to access voluntary assisted dying to a different authorised practitioner.

The applicant’s submissions on jurisdiction

25. In his submissions, the applicant set out his understanding of the trajectory on which the natural degeneration of his three conditions will become terminal. He stated that the only uncertainty was not whether he would die due to his conditions but when death will occur.

26. The applicant submitted that the Tribunal was required under the Human Rights Act 2004 (HRA), when interpreting a Territory law, to adopt an interpretation 2 that is consistent with human rights so far as it is possible to do so. In particular, the applicant claimed his right to life (HRA section 9), freedom from cruel, inhuman or degrading treatment (HRA section 10), and recognition and equality before the law (HRA section 8) were engaged. He submitted an interpretation of Schedule 1 of the VAD Act which excluded review of a finding that his condition 3 would cause death would be inconsistent with these human rights.

27. The applicant also submitted that the Tribunal had jurisdiction to review the decision that the applicant did not have decision-making capacity in relation to

2 We note that the applicant referred to section 40B of the HRA for this proposition. We discuss this further below 3 The Applicant provided further material to the Tribunal after the hearing which pointed to the decision of the Superior Court of Quebec in Truchon v Canada (AG), 2019 QCCS 3792 which declared unconstitutional the requirement there be reasonable foreseeability of natural death in Canada’s Medical Assistance in Dying legislation. The Court ruled that this criteria violated the rights to life, liberty and security of person and right to equal protection and equal benefit under the law without discrimination in the Canadian Charter of Rights and Freedoms. See Department of Justice Canada, ‘Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision’, available at https://www.justice.gc.ca/eng/csj-sjc/pl/ad-am/c7/p1.html. As discussed below, we do not have to decide whether there has, in fact, been a breach of the applicant’s human rights in the decision under review voluntary assisted dying and that a review of this decision was not futile. Partial relief, he claimed, was still relief.

28. The applicant also submitted that the Tribunal has inherent jurisdiction to prevent a manifest injustice. He stated that if the Tribunal does not have jurisdiction he will be left without a pathway to challenge the decision. Any further request would still be assessed under the same framework, he may not have the capacity to make another request, and the prospects of success of any future request was unclear.

29. The applicant submitted that the respondent’s narrow reading of Schedule 1 of the VAD Act produces an absurd and discriminatory result; namely a person with full capacity but who has been assessed as having a non-terminal condition has no recourse to review by the Tribunal. The VAD Act should, the applicant submitted, be interpreted broadly to achieve its remedial and beneficial purposes.

30. The applicant also submitted that the first assessment report gives undue emphasis to pain management rather than the progressive nature of his conditions. He stated that he should not have to wait until he was functionally terminal before making the request. He also raised the broader public interest in dementia patients having access to VAD and the lack of access to telehealth given restrictions under Commonwealth legislation.

31. The applicant also made a request to grant public access to the proceedings and asked for statistical information on how many VAD requests had been rejected because the conditions were deemed not to be terminal, and of these how many were suffering from CPS. These aspects of his submissions are considered further when discussing publication orders below.

Whether the Tribunal has jurisdiction to review whether the applicant has a relevant condition

32. In assessing the Tribunal’s jurisdiction or power to make the orders sought by the applicant, the Tribunal is not making any findings about the factual context in which those orders are sought. We have not reached any conclusions on whether the applicant has a relevant condition that is advanced, progressive and expected to cause death for the purpose of section 11(1)(b).

33. However, in our view the limitations on the Tribunal’s jurisdiction under Part 10 of the VAD Act are clear. Under section 136, the Tribunal is able to review only a reviewable decision. A ‘reviewable decision’ is defined in section 134 as “a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision”. Schedule 1 includes reference to a decision made under section 16(1)(a) that an individual does not meet the eligibility requirement mentioned in section 11 (1)(d) (i.e. the individual has decision-making capacity in relation to voluntary assisted dying). Schedule 1 does not include a decision made under section 16(1)(a) that an individual does not meet the eligibility requirement mentioned in section 11(1)(b) (i.e. that the individual has been diagnosed with a condition that is advanced, progressive and expected to cause death).

34. We note that the eligibility criteria in sections 11(1)(b) and 11(1)(d) are related, particularly in this case. As set out in section 12 of the VAD Act and discussed further below, decision-making capacity in relation to VAD includes understanding the facts that relate to a decision about accessing voluntary assisted dying. One of those facts is whether the applicant has, in fact, a relevant condition as set out in section 11(1)(b). It is arguably the difference between the applicant’s views on whether he has a relevant condition and the views of the respondent on that issue which led the respondent to conclude that it was undetermined whether the applicant had the decision-making capacity required in section 11(1)(d). It could be argued that, in reviewing the respondent’s decision that the applicant does not meet section 11(1)(d), the Tribunal will have to form a view on whether the applicant is right in his understanding of the meaning of relevant condition. A review under section 11(1)(d), in other words, would enable the Tribunal to reach a conclusion on whether the applicant meets the eligibility requirement in section 11(1)(b) as well.

35. Neither party argued for this interpretation of the VAD Act, and we also do not consider the possible interaction between the eligibility requirements enables a review of decision-making capacity under section 11(1)(d) to include a review of the other eligibility requirements including the relevant condition requirement in section 11(1)(b). As we discuss below, decision-making capacity under section 11(1)(d) is not about the correctness of the applicant’s understanding of the criteria to which they are subject. The definition of ‘reviewable decision’ refers to a provision of the Act ‘in relation to the decision’. This is in our view intended to limit the consideration of the decision to the particular eligibility criteria in question. This is reinforced through reference in Schedule 1 to only three of the seven eligibility criteria in section 11, something repeated not only in relation to a decision by the coordinating practitioner in section 16, but also decisions by the consulting practitioner under section 23.

36. This interpretation of what constitutes a reviewable decision is also reinforced through the nature of the eligibility requirements in section 11. Section 11(1)(a) requires the applicant for VAD to be an adult, a criterion which is either met or not met and not generally susceptible to merits review. Sections 11(1)(b) involves a clinical assessment of diagnosed conditions, and section 11(1)(c) (whether the applicant is suffering intolerably in relation to the relevant condition) an assessment of the nature of the suffering caused by the conditions in question. In contrast the remaining eligibility criteria — whether an applicant has decision-making capacity, is acting voluntarily and without coercion, or has lived in the ACT for the previous 12 months — involve consideration of the applicant’s particular circumstances. In our view, distinctions can be drawn between the nature of the criteria which are included in Schedule 1 which are subject to review and those criteria which are not.

37. The applicant’s submissions in relation to the Tribunal’s jurisdiction under the HRA or inherent jurisdiction must also be rejected.

38. Section 30 of the HRA provides that ‘[s]o far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights’.

39. But this provision does not mean that the respondent or the Tribunal is at large to change the clear meaning of a statute. As the ACT Supreme Court discussed in Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83: “if the words of a statute are clear, the court must give them that 4 meaning”. As an ordinary rule of interpretation, the possible incompatibility with human rights cannot influence the interpretation of legislation unless that legislation is capable of more than one meaning. In our view, as set out above, the VAD Act is clear in not authorising review by the Tribunal of a decision that the applicant does not have a relevant condition for the purposes of section 11(1)(b). Even if we agreed that the broad purpose of the VAD Act is consistent with access to VAD for someone in the applicant’s condition, or that compatibility with human rights as set out in the HRA required that access, we cannot in effect rewrite the VAD Act to provide for review of decisions that an individual does not meet section 11(1)(b).

40. The applicant pointed to section 40B of the HRA which provides that it is unlawful for a public authority to act in a way which is incompatible with a human right or fail to give proper consideration to a relevant human right. Section 40(2) states that ‘public authority’ does not include the Legislative Assembly or a court, except when they are acting in an administrative capacity. ‘Court’ is defined in the HRA dictionary to include the ACAT. The concept of administrative capacity in this context is unclear, though there is authority suggesting that tribunals will ordinarily be acting in an administrative capacity for the purpose of human rights 5 legislation when exercising their review jurisdiction, which is the case here. As there was no argument on this issue we do not resolve it, but take this position. It seems likely that the respondent is a public authority. ‘Public authority’ includes an entity whose functions include functions of a public nature when exercising 6 those functions.

41. However, section 40B is qualified by section 40B(2) so as not to apply to a decision made under a law in force in the Territory and:

4 Quoting from Slaveski v Smith [2012] VSCA 25 at [24] which was interpreting Momcilovic v The Queen [2011] HCA 34 5 Allat v ACT Government Health Directorate [2012] ACAT 67 at [64]; Alistair Pound and Kylie Evans, nd Annotated Victorian Charter of Human Rights (Thomson Reuters, 2 edition, 2019) at [4.240] 6 The matters which can be considered in deciding whether a function of an entity is a function of a public nature include whether the function is conferred on the entity under a territory law or is of a regulatory nature. Public health services are also taken to be of a public nature (s 40A(3)(b)(iii)). (a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or (b) the law cannot be interpreted in a way that is consistent with a human right.

42. Again, section 40B(2) makes clear that the Tribunal and the respondent cannot act contrary to the clear meaning of the terms used in the legislation. Even if we accept that in failing to review the respondent’s decision that the applicant has a relevant condition the Tribunal is acting in a way which is incompatible with a human right or failing to give those rights proper consideration, the Tribunal is expressly required to act in that way by legislation which cannot be otherwise interpreted.

43. We have not made any findings on whether the respondent has acted in a way which is incompatible with the applicant’s human rights or failed to give those rights proper consideration. Similarly, we have not considered whether the respondent was required to take their approach to the interpretation of section 11(1)(b) and its application to the applicant’s circumstances. In our view, it is clear that whether the respondent has acted unlawfully in breach of the applicant’s human rights under section 40B is not something we can review. Section 40C states that a claim that a public authority has acted in contravention of section 40B by a victim of the contravention may found a proceeding in the Supreme Court, and that the Supreme Court can grant the relief it considers appropriate except damages. The Supreme Court can also declare that the 7 VAD Act is inconsistent with a human right. Section 40C also provides that a person may rely on their rights under the HRA in other legal proceedings, but the HRA does not in itself provide jurisdiction for this Tribunal to consider whether there has been a breach of section 40B or the human rights set out in that Act.

44. As set out above, the Tribunal’s jurisdiction is limited to that conferred in legislation; the Tribunal does not have inherent jurisdiction, even to prevent what might be an injustice. We accept that the limitation on the Tribunal’s jurisdiction under the VAD Act might mean that an applicant for VAD who has decision-making capacity but does not meet the relevant condition criteria may

7 HRA s 32 not be able to seek review in the Tribunal. Indeed, that may have been the result in this case. However, that does not mean an applicant in that situation is without recourse. As the respondent submitted, there is nothing in the Act which prevents the applicant from starting a new application for VAD which, given it may involve a different coordinating practitioner, may result in a different assessment about his eligibility. As discussed above, the applicant may also be able to bring proceedings in the ACT Supreme Court, including judicial review of the decision that he does not meet the relevant condition criteria or a declaration of the incompatibility of the VAD Act with the applicant’s human rights under the HRA. These potential avenues may also allow him to address what he claims is an emphasis on pain management in the first assessment in this case. There may also be other avenues outside of the VAD process or access to the courts in which the applicant might raise the broader public interest in dementia patients having access to VAD or the impact of Commonwealth restrictions on accessing VAD assistance through telehealth services.

45. The Tribunal, however, does not have jurisdiction to review the respondent’s decisions that the applicant did not meet the eligibility requirement in section 11(1)(b) as his diagnosed conditions, either alone or in combination, are not advanced and are not expected to cause the applicant’s death.

Futility

46. As described above, the respondent submitted that, if the Tribunal did not have jurisdiction to review the decision that the applicant does not have a relevant condition, any review of whether the applicant has decision-making capacity in relation to VAD would be futile because it would not change the applicant’s eligibility to access VAD. The applicant submitted that such a review would not be futile as it would: (a) correct a clinical error; (b) be relevant to any future VAD application; and (c) affirm the applicant’s autonomy and human dignity.

47. As set out above, section 145 of the VAD provides that if the tribunal reviews a reviewable decision that an applicant for VAD does not have decision-making capacity the tribunal must decide that the applicant either has decision-making capacity or does not have decision-making capacity. Where the tribunal orders that an applicant does have decision-making capacity, this is taken to be the decision of the decision-maker for the reviewable decision, but only if the tribunal does not also make an order confirming another reviewable decision that the applicant does not meet the eligibility requirements (section 146). Section 147 provides that any order on review of a reviewable decision that a person does not meet the eligibility requirements means the request and assessment process ends. Sections 146 and 147 therefore support the view that it is open to the tribunal not to review a reviewable decision where the applicant would remain ineligible to access VAD.

48. However, in our view it remains open to the Tribunal to conduct a review of a reviewable decision even if the applicant does not otherwise meet all the eligibility requirements. Sections 146 and 147 provide for the effect of the tribunal’s decision. They do not limit an affected person’s ability to apply to the tribunal for review of a reviewable decision under section 136, or the requirement for the tribunal to make orders under 145 if it conducts a review. Where, as here, the tribunal has jurisdiction to review, section 146 does not prevent an order under section 145 taking effect as the decision of the decision-maker for the reviewable decision.

49. We agree with the applicant’s submissions that a review of his decision-making capacity would not be futile. As discussed below, a review of this aspect of the respondent’s decision provides an opportunity for this Tribunal to consider the assessment process which, while not strictly binding, may be relevant for future requests to access VAD by the applicant or others. Importantly, an assessment of the applicant’s decision-making capacity, regardless of its impact on his ability to access VAD, affects the applicant’s autonomy and human dignity and hence involves a potential limitation of the applicant’s human rights under the HRA.

50. We note that the respondent decided that the applicant’s decision-making capacity was undetermined. As discussed further below, the respondent gave evidence before the Tribunal that they did not form a conclusion on whether the applicant did or did not have decision-making capacity as they had already concluded that the applicant did not meet the relevant condition requirement and thought it would have been futile to continue their assessment. It could be argued that the respondent therefore did not make a reviewable decision in relation to the applicant’s decision-making capacity and perhaps therefore had not completed their assessment to decide whether the applicant meets the eligibility requirements for the purposes of section 16.

51. However, in our view while the VAD Act arguably requires the coordinating practitioner, in undertaking a first assessment, to consider whether the applicant meets each of the eligibility requirements, it does not require the coordinating practitioner to reach a definitive view in relation to each of the eligibility requirements where they have concluded that one of the requirements is not met. In that circumstance, for the purposes of establishing the tribunal’s jurisdiction the respondent can be taken to have decided that the applicant does not meet the eligibility requirement that he have decision-making capacity, and hence has made a reviewable decision as defined in section 134.

52. We therefore consider that the Tribunal has jurisdiction to conduct a review of the respondent’s decision in relation to the applicant’s decision-making capacity and that it is appropriate to do so.

Decision-making capacity

53. In support of his decision-making capacity, the applicant provided a letter from his general practitioner who had known the applicant for over 15 years and who 8 had treated him throughout the progression of his conditions. That letter states: In my regular consultations with [the applicant], I have consistently found him to have full decision-making capacity. He understands the nature of his conditions and their prognosis, understands the treatment options available to him, including palliative care, understands the consequences of each choice, and can communicate his decisions clearly and consistently. He understands the implications for himself and his family if the VAD mechanism were approved.

54. In doing so the letter considers the elements of having decision-making capacity in relation to voluntary assisted dying as set out in section 12(1) of the VAD Act.

8 Applicant’s submissions filed 23 April 2026

55. The respondent also provided new evidence in relation to their decision on the applicant’s decision-making capacity. After setting out their qualifications and experience, including in relation to assessing decision-making capacity in relation to health care, the respondent states that their “determination on [the applicant’s] decision-making capacity was that it was unclear (undetermined) at the time and date of the assessment that I had with [the applicant] as to whether he met the 9 legislative criteria …”.

56. The respondent then describes their assessment process, including the measures taken to mitigate for factors which might negatively influence their assessment. They state that they were not satisfied that the applicant clearly and unambiguously satisfied three of the factors set out in section 12(1) of the VAD Act, namely that the applicant can: (a) Understand the facts that relate to a decision about accessing voluntary assisted dying (section 12(1)(a)). The respondent stated that the applicant lacked some understanding of his treatment options, was not able to answer the question of why he considered his condition to be terminal, was unable to assert what his treating team had discussed with him about his condition, and was unable to clearly identify why his illness could lead directly to his death, without regard for medication side effect, overdose or self-inflicted injury. (b) Understand the main choices available to them in relation to the decision (section 12(1)(b)). The respondent stated that the applicant could not clearly articulate his understanding of palliative care and how this directly related to him, or what other legal choices might be available to him. (c) Weigh up the consequences of the main choices (section 12(1)(c)). The respondent stated that in their clinical opinion the applicant was unable to adequately weigh up the risks and benefits of choosing voluntary assisted dying to confidently say that he had taken all of these into consideration.

57. The respondent stated that they had assessed the applicant’s capacity as undetermined because his inability to discuss these criteria was out of character

9 Respondent’s witness statement dated 2 May 2026, [5]. given the rest of his assessment. The respondent stated that if the applicant had been deemed to have a relevant condition, they would have continued the assessment, contacted the applicant’s general practitioner, or referred him for a second opinion. The respondent stated that they stood by their original determination that it was unclear whether the applicant had capacity at the time of the assessment, and they were “unable to answer the question ‘does this person 10 have the capacity to make the decision [at that time]”. The respondent had considered it was not in the applicant’s interests to conduct a further assessment given the applicant did not meet the relevant condition criteria. They stated that they felt the undetermined finding had sought to preserve the applicant’s dignity given the state of their assessment at that time.

58. At the hearing, the respondent accepted that the applicant’s capacity may have improved over time with further education and the opportunity to reflect on his circumstances. They accepted that the applicant’s statements to the Tribunal suggested that he had an improved understanding of his condition and why he considered it to be terminal. The respondent stated that they had no objection to the Tribunal concluding that the applicant had decision-making capacity in relation to VAD.

Role of the Tribunal in conducting the review

59. The VAD Act provides for its own process of review. The decision-maker must provide prescribed information to a person when they make a reviewable decision 11 about them. An affected person may apply to the tribunal for review of a 12 reviewable decision. There is no requirement to identify any questions of fact or law that may have arisen in the reviewable decision. The coordinating practitioner and consulting practitioner, even when they are not the decision-maker, must provide ACAT with documents in their possession or control and 13 relevant to the decision being reviewed. If the tribunal reviews a reviewable decision, the tribunal must, generally, by order decide if the applicant does or

10 Respondent’s witness statement dated 2 May 2026, [23]. 11 VAD Act, s 135 12 VAD Act, s 136(1) 13 VAD Act, s 141 does not meet the reviewable eligibility criteria. The order is, again generally, 14 taken to be the decision of the decision-maker, or the individual is taken not to 15 have met the eligibility requirements.

60. In our view, a review under Part 10 of the VAD Act is not intended to be an application for administrative review as provided in Division 6.3 of the ACAT Act, which includes provisions for a reviewable decision notice, the powers of the tribunal in reviewing decisions, and the effect of orders for administrative 16 review. However, the role of the tribunal is similar. Where, as in this case, the Tribunal has to assess whether the applicant meets the eligibility requirements, the Tribunal is required to act as the decision-maker in carrying out that assessment, based on the material before the Tribunal when it makes its orders.

61. As set out above, section 12 of the VAD Act sets out when a person has decision-making capacity in relation to VAD. Importantly, under section 12(2) an individual must be assumed to have decision-making capacity in relation to VAD unless the contrary is established. It must also be taken into account that an individual is capable of making a decision if they can make the decision with adequate and appropriate support (section 12(3)(b)) and an individual must not be treated as not having decision-making capacity unless all practicable steps to support them to make decisions have been taken (section 12(3)(c)).

62. We also recognise that an assessment of the applicant’s decision-making capacity has the potential to directly and indirectly limit the applicant’s autonomy and dignity which are protected in various rights under the HRA, including the right to recognition and equality before the law (HRA section 8) and protection of privacy and reputation (HRA section 12). The Tribunal must, where possible 17 given its legislative remit, act compatibly with those rights both in interpreting

14 VAD Act, s 146(2) 15 VAD Act, s 147 16 Cf the ability to apply for review of a decision under Part 11 of the VAD Act to which Division 6.3 of the ACAT Act would seem applicable 17 HRA s 30 the meaning of decision-making capacity in relation to VAD and carrying out 18 such an assessment.

63. The relevant factor set out in section 12(3)(e) — that an individual who moves between having and not having decision-making capacity must, if practicable, be given the opportunity to consider matters at a time when they have capacity — recognises that decision-making capacity may fluctuate over time. This has also been recognised in other contexts in which decision-making capacity is in issue, including under the Mental Health Act 2015 (Mental Health Act) which largely mirrors the provisions of the VAD Act and on which the VAD Act is clearly 19 20 modelled. In the decision of In the Matter of ER for example, the tribunal summarised the authorities and submissions presented in that case as follows: • The common law presumes that a person has capacity to make a decision and this presumption is reinforced by the obligation under section 30 of the Human Rights Act to interpret law in a way that is compatible with relevant human rights and the operation of those rights, including the rights to protection from torture and cruel, inhuman or degrading treatment, the right to privacy and reputation and the right to liberty and security of person as well as the [United Nations Convention on the Rights of Persons with Disabilities]. • Capacity may fluctuate. • Capacity must be assessed in relation to the decision to be made. • The assessment of capacity is specific to the relevant decision, which in this case is a decision about ER’s psychiatric treatment. • The test is not applied to psychiatric treatment generally, or to different treatment that may or may not be needed in future. • The person making the decision should be given the necessary support to make the decision. • The onus is on the applicant [for a mental health order in that case] 21 to rebut the presumption of capacity.

64. In our view, this supports a finding that the applicant’s decision-making capacity may have changed over time, and that the question of his capacity is to be assessed

18 HRA s 40B 19 Mental Health Act 2015, ss 7, 8 20 [2015] ACAT 73 21 [2015] ACAT 73 at [44]. See also Appellant AA 35 of 2025 v The Chief Psychiatrist [2025] ACAT 88 at [100]–[105] by the Tribunal at the time it makes it decision based on the evidence available to the Tribunal at that time.

65. Decision-making capacity under section 12 requires that the applicant understand the facts and choices relating to accessing VAD, and not merely be capable of understanding. However, the requirement that a lack of decision-making capacity be established means that we do not have to catalogue all the facts or available choices that relate to a decision about accessing VAD for the purposes of sections 12(1)(a) and 12(1)(b). We must consider the facts and available choices that relate to the decision to access VAD that the respondent has claimed are not understood by the applicant.

66. As stated in the Victorian Supreme Court decision in PBU & NJE v Mental Health 22 Tribunal in discussing the requirement when assessing capacity under mental health legislation that a person understand the information they are given which is relevant to the decision: The ordinary and natural meaning of the word ‘understand’ is ‘perceive the meaning of’, ‘grasp the idea of’ or ‘comprehend’. In that provision, I think the level of understanding intended is only a general kind of understanding that relates to the nature, purpose and effect of the treatment 23 …

67. In our view, establishing a lack of decision-making capacity in relation to VAD similarly involves demonstrating that the applicant lacks even a general kind of understanding about the nature of their conditions, including how it might develop and whether it might be expected to cause death. An applicant need not be able to understand that there are treatment options which might alleviate or contribute to their suffering, and palliative care or other legal options that may be alternatives to accessing VAD. Or an applicant need not be able, again at even a general level, recognise the risks and benefits of VAD and its alternatives so as to be able to say they have weighed up the consequences of the main choices.

68. The Tribunal had before it a letter from the applicant’s general practitioner supporting his decision-making capacity in relation to VAD. The respondent’s

22 [2018] VSC 564 23 PBU & NJE v Mental Health Tribunal [2018] VSC 564 at [160] evidence was that they were uncertain about whether the applicant has decision-making capacity in relation to VAD at the time of the assessment, and would have sought to continue the assessment, including further discussions with the applicant, before reaching a determinate conclusion on the question of his decision-making capacity. The respondent accepted that the applicant’s capacity may have continued to develop. This evidence does not support a finding that the applicant lacked decision-making capacity in relation to VAD.

69. The Tribunal also had the benefit of receiving written submissions from the applicant and observing and interacting with the applicant over two hearings. We were able to interrogate the applicant on his understanding and choices in accessing VAD. One member of the Tribunal had relevant medical expertise. We considered our observations of the applicant in the course of the proceedings to be relevant to our consideration of the applicant’s decision-making capacity. In our view, the applicant was able to demonstrate at least a general understanding of his conditions and their likely progression. He was able to justify why he considered there to be a lack of treatment options effective enough to counter his current and future suffering. He has clearly weighed up the risks and benefits of the options available to him.

70. We are therefore not satisfied that it has been established that the applicant does not have decision-making capacity in relation to VAD. In reaching this conclusion we do not intend any criticism of the approach taken and conclusion of the respondent at the time of their assessment. We will therefore order under section 145 that the applicant has decision-making capacity in relation to voluntary assisted dying.

Publication of this decision and details relevant to the proceedings

71. At the hearing in this matter on 4 May 2026, the respondent made an oral application to prevent publication or disclosure of their name or information which may reasonably identify them.

72. The respondent provided a witness statement in support by the acting executive branch manager for the Health and Community Services Directorate. This statement sets out the evidence and reasons for why only a small percentage of eligible clinicians chose to complete the mandatory training to become an authorised VAD practitioner. There is a register of authorised practitioners held under section 96 of the VAD Act which is generally not publicly available. Authorised practitioners are connected with persons seeking access to the scheme through the Voluntary Assisted Dying Care Navigator Service in a way designed to ensure confidentiality for both the patient and the practitioner.

73. The statement raises the concern that publication of the authorised practitioner’s name or other identification details has the potential to undermine the scheme by deterring practitioner participation. The sensitive and ethically controversial nature of VAD may lead to reputational risks associated with public identification as a VAD practitioner and involvement in legal proceedings. Even a small number of practitioners leaving or choosing not to participate may disproportionately impact access to VAD under the scheme.

74. The applicant, both at the hearing and in subsequent correspondence, indicated that he was in favour of protecting the respondent against public identification. However, he also indicated that he wanted to raise public awareness of the limitations of the VAD Act, including what might be considered a relevant condition and the right to review decisions in the tribunal. The applicant indicated that he wished for the issues raised by this proceeding to be publicly available in some form. He asked for any privacy orders to be balanced against the public interest in understanding how the VAD Act is operating in its first year of operation.

75. Following the hearing on 4 May 2026, the Tribunal made orders protecting against the disclosure of material filed in the proceedings, preventing public access to the file and anonymising the name of the respondent. The Tribunal noted that it would consider orders providing for the publication of reasons in this matter while protecting the anonymity of the respondent. On 22 May 2026 the respondent provided the tribunal with copies of the documents filed in this matter with redactions of the respondent’s identifying information.

76. There are a number of provisions in the VAD Act which relate to the provision of information under the VAD Act and the tribunal’s ability to publish its reasons for its decision. Part 10 of the VAD Act allows an affected person to apply for review of a reviewable decision. An ‘affected person’ is defined to mean the individual about whom the reviewable decision was made (such as, as in this case, the person who had made a request to access VAD) or “any other person who has a sufficient and genuine interest in the rights of the individual … in relation to 24 voluntary assisted dying”. Under section 137 of the VAD Act the parties to an application for review will include the individual who is the subject of the 25 reviewable decision and the coordinating practitioner. Notice of the application is provided by the registrar to each party, the individual’s coordinating practitioner if they are not otherwise a party, the Voluntary Assisted Dying Oversight Board established under section 110 of the VAD Act, and any other person as directed by the tribunal. An individual’s coordinating or consulting practitioner will be directed to provide the tribunal with any documents that are in their possession or control and relevant to the decision being reviewed (section 141).

77. Section 142 of the VAD Act states that the hearing of an application for review of a reviewable decision must take place in private. The tribunal generally is able to make an order allowing stated people to be present if satisfied it is appropriate to do so. The Tribunal in this matter took the view that it was not necessary to make an order allowing the parties and their representatives to be present, and made an order through the granting of leave to enable family members of the applicant and health directorate officials to be present at the hearings.

78. Section 143 provides for the making of non-publication orders. It states: 143 Non-publication orders (1) The ACAT may, on application by a party or on its own initiative, make an order prohibiting or restricting— (a) the publication of— (i) evidence given at the hearing; or (ii) matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing; or

24 VAD Act, s 134 (definition of ‘affected person’) 25 Along with the applicant for review and the decision-maker if they are different, as provided for in ACAT Act s 29(1) (b) the disclosure to some or all of the parties to the application of— (i) evidence given at the hearing; or (ii) matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing. (2) A person must not contravene an order made under subsection (1). Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

79. Section 148 provides for a consulting practitioner to be given final orders when they are not a party to the review, and under section 149 the coordinating practitioner must provide final orders made by the tribunal to the Board. Copies of the orders made were also provided in this case to the applicant as a party to the review. The VAD Act does not expressly provide for who else might be notified of the final orders made or whether the tribunal can publish reasons for its decisions.

80. Section 160 creates various offences in relation to the use or divulging of information about a person that is disclosed or obtained in exercising functions under the VAD Act. Those offences do not apply if the information is used or disclosed under the VAD Act or other Territory legislation, in relation to exercising a function under the VAD Act or other Territory legislation, or in a court proceeding (which includes the tribunal, see section 160(5)). The offences also do not apply to using or divulging information about a person with the person’s consent.

81. The apparent intention of the restrictions on using and publishing information obtained under the VAD Act is to protect the privacy of the individual who is seeking to access VAD. As the revised explanatory statement states, in outlining what are now sections 142 and 143, those sections are “designed to protect the privacy and dignity of the individual subject to the application, given the personal 26 and health information being reviewed by ACAT”.

82. However, in our view section 143 also extends to orders preventing the publication or disclosure of information which might identify the coordinating

26 Revised Explanatory Statement, Voluntary Assisted Dying Bill 2023 (ACT), 99 practitioner, as in this case. This is supported by the requirement that the hearing be in private. We accept the evidence provided on behalf of the respondent that identification of the respondent may have reputation risks and act to deter participation by other practitioners in the VAD scheme in the future. We also recognise the agreement by the applicant to maintaining the anonymity of the respondent. We will therefore make orders preserving the anonymity of the respondent and, if necessary, preventing access to unredacted material filed with the Tribunal.

83. The orders that can be made under section 143 are similar to the non-publication orders the tribunal can make under section 39 of the ACAT Act. Section 40 of the ACAT Act provides for offences for the unauthorised disclosure by persons acting for the tribunal of protected information disclosed at a private hearing or to which a direction under section 39 applies. Section 40 is in many ways analogous to section 160 of the VAD Act, but unlike that section does not include an exception for using or divulging information about a person with that person’s consent. 27

84. In In the matter of MH 452/2022 (MH425/2022) the tribunal recently considered how publication of reasons might be affected by the interaction between sections 39 and 40 of the ACAT Act and the requirement in the Mental Health Act that a hearing be held in private. The tribunal, with analogies to the reasoning in SZAYW v Minister for Immigration and Multicultural and 28 Indigenous Affairs (SZAYW), described the purpose of a hearing under the Mental Health Act being in private was: to protect the subject person from the risks to their welfare, reputation and privacy that may come from public exposure and scrutiny of their mental health. Disinterested members of the public should not be able to attend hearings, obtain the transcript, or peruse documents or evidence lodged in 29 this jurisdiction of the tribunal.

85. Under section 194 of the Mental Health Act, a hearing is held in private unless a public hearing is asked for by the protected person or ordered by the tribunal. A

27 [2026] ACAT 5 28 [2006] HCA 49 29 MH 452/2022 [2026] ACAT 5 at [50] private hearing is taken under section 194(3) to be a hearing to which section 39 of the ACAT Act applies. Because a hearing under the Mental Health Act is held in private, the tribunal in MH425/2022 considered that information obtained by anyone exercising a function under the ACAT Act could fall within the definition of ‘protected information’ for the purposes of section 40 of the ACAT Act. Section 40 applies to tribunal members and staff or persons acting under the direction or authority of the tribunal. The section creates an offence for those persons to do something that divulges protected information and is reckless about whether the information is protected information and would be divulged. The tribunal stated: we think the privacy provisions are aimed at protecting the identify and privacy of the subject person, as per the hearing in SZAYW, not in making mental health hearings a process of which there can be no public scrutiny. However, this could certainly be clearer. Adopting as we do the concept of “divulging” information as requiring that the information have the character of being private, secret or otherwise unpublished, we consider it arguable that the tribunal may publish reasons about a matter, including reasons that may identify a person, so long as those reasons do not divulge information that is not already in the public 30 domain.

86. However, in that matter the Tribunal considered it was not possible to disentangle the protected from the public information without risking a breach of section 40.

87. Section 40 provides for only limited exceptions; where the information is divulged, or the person is exercising a function, under a Territory law. The tribunal accepted in MH452/2022 that ‘function’ might include ‘authorities, duties and powers’ such as where a statement of reasons had been requested by a party under section 60 of the ACAT Act. Section 40 of the ACAT Act would not prevent the party requesting those reasons from divulging those reasons publicly unless there had been orders made under section 39 of the ACAT Act. However, in the absence of any other obligation to publish reasons, the tribunal in MH452/2022 ordered that the reasons for its decision would not be published.

88. The decision in MH452/2022 was not addressed by the parties, and we do not consider it appropriate to discuss the correctness or otherwise of that decision. In

30 [2026] ACAT 5 at [66] our view, the differences between the provisions of the Mental Health Act and the ACAT Act considered in that decision, and those of the VAD Act may lead to a different conclusion. In any event, in these reasons we have endeavoured to not publish information that might be considered to be protected information for the purposes of section 40 of the ACAT Act, and will leave in place orders to prevent public access to the material filed with the Tribunal.

89. As set out above, section 142 of the VAD Act provides that the hearing of an application for review of a reviewable decision must take place in private. There is no provision for the tribunal to make orders for the hearing to be in public (cf section 194(2) of the Mental Health Act). We note that there is also no reference to a private hearing under the VAD Act to be taken to be a hearing to which section 39 of the ACAT Act applies (cf section 194(3) of the Mental Health Act). Instead, section 143 of the VAD Act sets out the non-publication orders that the tribunal may make in similar terms to that in section 39 of the ACAT Act. It is clear that a private hearing is not, in itself, intended to restrict the publication or disclosure of evidence given at the hearing or contained in documents provided to the tribunal.

90. The protections against divulging information provided by section 160 of the VAD Act are distinct from those in section 40 of the ACAT Act. The offences under section 160 apply to any person who uses or divulges information about someone else where that information was disclosed or obtained through the exercise of a function under the VAD Act. Section 160 makes it clear that ‘divulge’ includes publishing, and that the offences go beyond making a record to include any use.

91. The exceptions to the offences in section 160 are also broader than in section 40 of the ACAT Act. They include not only using or divulging the information under or in relation to the exercise of functions under Territory laws, but also in a court proceeding (and where ‘court’ is defined to include a tribunal). Importantly, section 160 includes the exception that the offences do not apply to “the using or divulging of protected information about a person with the person’s consent”.

92. Section 160 of the VAD Act is intended to protect against using or divulging 31 personal and sensitive health information that is collected under the VAD Act. However, it is not clear whether the protections in section 160 are intended to apply to information disclosed to the tribunal for the purpose of conducting the review, and, if so, whether that precludes or displaces the obligations in section 40 of the ACAT Act which might otherwise apply. It may be that material provided to the tribunal and presented at a hearing is disclosed or obtained by the tribunal in the exercise of a function under the VAD Act, and hence is protected information for the purposes of section 160. In that case, publishing that information with the consent of the applicant would come within the exception in section 160(3)(b). Such information may not be information disclosed or obtained in the exercise of a function under the ACAT Act, and hence even if it was a private hearing it would not be protected information for the purposes of section 40 of the ACAT Act.

93. In any event, even if section 40 of the ACAT Act potentially applies to the information provided to the Tribunal or heard in evidence in these proceedings, in our view that section does not prevent the publication of reasons provided they do not disclose any information about persons who have not consented to their disclosure. 32

94. As discussed in SZAYW, the requirement that a hearing be in private takes its meaning from its statutory context. That includes a practical approach to conducting hearings and ensuring that all relevant information and evidence is before the Tribunal. It also includes the recognition in section 160 of the VAD Act that the protection is not needed where the individual consents to their personal information being used or divulged.

95. In this case the applicant has consented to the publication of their personal information by the Tribunal. We will seek that consent in particular to the form of these reasons before they are made publicly available. Unlike under the Mental Health Act considered in MH 452/2022, where reasons might be published in

31 See Revised Explanatory Statement pages 104-5 32 [2006] HCA 49 circumstances where the tribunal has decided that the subject person does not have decision-making capacity, in this matter we have held that the applicant has decision-making capacity in relation to VAD, including the capacity to consent to the disclosure of his personal and sensitive health information in the form of these reasons. By providing the information to the Tribunal at least in part with the intention that it be the subject of published reasons, that information may therefore not be considered private or secret so as to be protected against being divulged by the tribunal by section 40 of the ACAT Act. We therefore consider that it is appropriate to publish these reasons.

96. We therefore propose to publish these reasons and make final orders in the following terms subject to any objections raised by the parties:

Proposed Final Orders The orders made by the Tribunal on 4 May 2026 are varied and substituted as follows: 1. Pursuant to section 143 of the Voluntary Assisted Dying Act 2024 (VAD Act), until further order and except as necessary to respond to or to take any procedural or other necessary action in relation to these proceedings and the publication of reasons for any decisions made in this matter: (a) there is to be no publication by any person (whether by social or traditional media, in digital, written or oral form, or in any other manner) of the matters contained in the documents filed with the Tribunal or received in evidence by the Tribunal in these proceedings; (b) there is to be no public access to the file and the audio and written records of proceedings; and (c) the respondent is to be known as “respondent VAD 1/2026”. 2. Pursuant to section 145(1)(a) of the VAD Act, the Tribunal orders that the applicant has decision-making capacity in relation to voluntary assisted dying. 3. The application for review is otherwise dismissed.

……………………………….. Presidential Member D Stewart For and on behalf of the Tribunal Dates of hearing: 28 April 2026, 4 May 2026 Applicant: In person Solicitors for the Respondent: ACT Government Solicitor