Voluntary assisted dying (VAD) is when a terminally ill person with decision-making capacity cons... more Voluntary assisted dying (VAD) is when a terminally ill person with decision-making capacity consensually ends their life with assistance from an authorised professional. Many countries have legalised VAD, and health professionals’ roles within VAD frameworks are varied. Health professionals must be well informed of their legal obligations to ensure they practice within the legal boundaries, and those professionals with objections toward VAD should ensure that their eligible patients have equitable access. Given the current landscape of VAD, it is important to understand different health professionals’ attitudes toward VAD and what may underpin these attitudes. We explored (a) Australian health professionals’ attitudes toward VAD; (b) the psychological components that underpin those attitudes; (c) health professionals’ level of knowledge about VAD; (d) health professionals’ most common beliefs, emotions, and experiences related to VAD. A cross-sectional correlational survey design was used. A total of 182 Australian health professionals participated in the online survey based on a tripartite model of attitudes. We conducted a binomial logistic regression through a Generalised Linear Mixed Model and found polarised attitudes toward VAD between health professionals. Attitudes were accounted for by beliefs, emotions, education, and strength of religious beliefs. Knowledge of VAD was low, but not associated with overall attitude in our model. We highlight the importance of reflexive practice to help health professionals identify their values and feelings related to VAD, and to understand how these may affect their clinical practice. Low knowledge of VAD suggests that legislative and procedural training should be mandatory.
Objective
Futile treatment, which by definition cannot benefit a patient, is undesirable. This re... more Objective Futile treatment, which by definition cannot benefit a patient, is undesirable. This research investigated why doctors believe that treatment which they consider to be futile is sometimes provided at the end of a patient’s life.
Design Semi-structured in-depth interviews.
Setting Three large tertiary public hospitals in Brisbane, Australia.
Participants 96 doctors from emergency, intensive care, palliative care, oncology, renal medicine, internal medicine, respiratory medicine, surgery, cardiology, geriatric medicine, and medical administration departments. Participants were recruited using purposive maximum variation sampling.
Results Doctors attributed the provision of futile treatment to a wide range of inter-related factors. One was the characteristics of treating doctors, including their orientation towards curative treatment, discomfort or inexperience with death and dying, concerns about legal risk, and poor communication skills. Secondly, the attributes of the patient and family, including their requests or demands for further treatment, prognostic uncertainty, and lack of information about patient wishes. Thirdly, there were hospital factors including a high degree of specialisation, the availability of routine tests and interventions, and organisational barriers to diverting a patient from a curative to a palliative pathway. Doctors nominated family or patient request and doctors being locked into a curative role as the main reasons for futile care.
Conclusions Doctors believe that a range of factors contribute to the provision of futile treatment. A combination of strategies is necessary to reduce futile treatment, including better training for doctors who treat patients at the end of life, educating the community about the limits of medicine and the need to plan for death and dying, and structural reform at the hospital level.
Despite the fact that altruistic surrogacy arrangements occur in Australia, the law does not adeq... more Despite the fact that altruistic surrogacy arrangements occur in Australia, the law does not adequately regulate many important aspects of such arrangements. Failure to regulate surrogacy leaves infertile couples contemplating such treatment as well as clinics dealing with them in an unsatisfactory position. This article examines the law that operates in Australian States and Territories (and the problems associated with them) as well as in New Zealand, the United Kingdom and some United States jurisdictions, considers whether the argument against surrogacy arrangements can be legitimately sustained in modern times, and examines some regulatory regimes that seem to be working satisfactorily elsewhere in the world.
This article outlines the differences in state laws governing property distribution on the breakd... more This article outlines the differences in state laws governing property distribution on the breakdown of a de facto relationship. It argues in favour of a uniform position that applies to all de facto couples, heterosexual as well as homosexual.
For decades, various kinds of assisted reproductive technology ('ART') have been used to facilita... more For decades, various kinds of assisted reproductive technology ('ART') have been used to facilitate pregnancy for infertile couples. Techniques used include artificial insemination, in vitro fertilisation, gamete intra-fallopian transfer and zygote intra-fallopian transfer. Depending on the technique used and the circumstances of the couple, the parents may or may not be genetically related to their offspring. ART of the kind mentioned is now regarded as standard, mainstream medical intervention. While such treatment is now regarded by most as ethically and morally uncontroversial, our society is confronted with many ethical and moral dilemmas as a result of ART and the advances in scientific knowledge associated with reproductive techniques. Who should be entitled to access ART? Should prospective parents be able to select the sex or indeed any other physical characteristics of their child? Should pre-implantation genetic manipulation be permitted if this could have positive medical outcomes for an existing child of the parents? Should the offspring be entitled to information about their genetic origin? As scientific advances make more options available, these, and other, challenging issues will need to be addressed and resolved by our community and lawmakers.
The Australian Medical Association has recently adopted a policy position concerning advance care... more The Australian Medical Association has recently adopted a policy position concerning advance care planning, which is generally supportive of extending patient self-determination beyond the loss of decision-making capacity. It calls for uniform national legislation for legally enforceable advance health directives (AHD), and statutory protection for practitioners who comply with valid AHD, or who do not comply on several grounds. Analysis of the grounds for non-compliance indicate that they undermine patient autonomy, and aspects of the policy are inconsistent with current common law and statutory regimes that allow an adult to complete a legally binding AHD. The policy therefore threatens the patient self-determination, which it endorses, and places doctors who participate in advance care planning at legal risk.
The principle of autonomy is at the heart of the right of a competent individual to make an advan... more The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.
Legislation regulating advance directives exists in six Australian jurisdictions. In all of these... more Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.
The legal framework that operates at the end of life in Australia needs to be reformed.
• Volunt... more The legal framework that operates at the end of life in Australia needs to be reformed.
• Voluntary euthanasia and assisted suicide are currently unlawful.
• Both activities nevertheless occur not infrequently in Australia, in part because palliative care cannot relieve physical and psychological pain and suffering in all cases.
• In this respect, the law is deficient. The law is also unfair because it doesn’t treat people equally. Some people can be helped to die on their own terms as a result of their knowledge and/or connections while some are able to hasten their death by the refusal of life-sustaining treatment. But others do not have access to the means for their life to end.
• A very substantial majority of Australians have repeatedly expressed in public opinion polls their desire for law reform on these matters. Many are concerned at what they see is happening to their loved ones as they reach the end of their lives, and want the confidence that when their time comes they will be able to exercise choice in relation to assisted dying.
• The most consistent reason advanced not to change the law is the need to protect the vulnerable. There is a concern that if the law allows voluntary euthanasia and assisted suicide for some people, it will be expanded and abused, including pressures being placed on highly dependent people and those with disabilities to agree to euthanasia.
• But there is now a large body of experience in a number of international jurisdictions following the legalisation of voluntary euthanasia and/or assisted suicide. This shows that appropriate safeguards can be implemented to protect vulnerable people and prevent the abuse that opponents of assisted dying have feared. It reveals that assisted dying meets a real need among a small minority of people at the end of their lives. It also provides reassurance to people with terminal and incurable disease that they will not be left to suffer the indignities and discomfort of a nasty death.
• Australia is an increasingly secular society. Strong opposition to assisted death by religious groups that is based on their belief in divine sanctity of all human life is not a justification for denying choice for those who do not share that belief.
• It is now time for Australian legislators to respond to this concern and this experience by legislating to enhance the quality of death for those Australians who seek assisted dying.
The purpose of this paper is to provide a basis from which to start an informed and rational dial... more The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper:
How should Australia regulate voluntary euthanasia and assisted suicide?
In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation.
We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful.
There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered.
The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus.
We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues.
If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice.
We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?
Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who ... more Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases.
A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested.
There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests.
Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
Assisted death and voluntary euthanasia have received significant and sustained media attention i... more Assisted death and voluntary euthanasia have received significant and sustained media attention in recent years. High-profile cases of people seeking assistance to end their lives have raised, at least in the popular press, debate about whether individuals should be able to seek such assistance at a time when they consider their suffering to be unbearable or their quality of life unsatisfactory. Other recent developments include a number of attempts to legislate on the issue by the minor parties in Australia and the successful enactment of legislation in a few overseas jurisdictions. However, despite all of the recent attention that has focused on assisted death and voluntary euthanasia, a discussion of the adequacy of existing laws has not made it onto the political agenda of any of the Australian State or Territory governments. This is in spite of the fact that the private views of the majority of our elected Members of Parliament may be supportive of reform. This article explores the role of politicians' views and, as a case study, considers the opinions expressed by a number of Queensland Members of Parliament. In light of the views of these politicians and those of members of the public, as well as considerations arising from current medical practice, the article argues that there is a need for open political debate on assisted death and voluntary euthanasia. The article also suggests ways that such a debate may be achieved while minimising any political impact on governments that are prepared at least to consider this issue.
The principle of self determination in the context of medical decision making is an important one... more The principle of self determination in the context of medical decision making is an important one. For many years now, the common law has recognised that a person can give a directive about a health matter that may be effective if that person later loses capacity to make the decision. The importance of this autonomy was also recognised by the QLRC when it reviewed the law on substituted decision making. In addition to recommending the introduction of a statutory scheme that included advance health directives as one method of decision making for those with impaired capacity, it also recommended the retention of common law directives. Unfortunately, the way in which these recommendations were implemented seems to have defeated these intentions. To remedy this anomaly, it is suggested that the minor legislative amendment recommended in this article be adopted.
This article considers intervention in proceedings about withholding and withdrawing life-sustain... more This article considers intervention in proceedings about withholding and withdrawing life-sustaining medical treatment. Since the early 1990s, there have been a number of important decisions, both in Australia and overseas, about whether life-sustaining treatment should be withheld or withdrawn from an adult who no longer has capacity to make the decision for himself or herself. In almost all of these decisions, intervention by a non-party to the matter has been an issue. This article explores the rules of intervention in applications to appear as a party and as amicus curiae, and considers those rules in the context of decisions to withhold and withdraw life-sustaining medical treatment. The relevant cases are examined as are the advantages and disadvantages of intervention in these circumstances. The article concludes by suggesting a model for intervention that strikes the appropriate balance between ensuring all relevant issues are placed before the court while still respecting the intensely private nature of a decision to withhold or withdraw a life-sustaining measure in any given case.
Since the enactment in Queensland of the Powers of Attorney Act 1998 (Qld) and the Guardianship a... more Since the enactment in Queensland of the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld), a decision can be made to withhold or withdraw life-sustaining medical treatment from an adult who lacks capacity to make such decisions for herself or himself.
The Guardianship and Administration Tribunal of Queensland has been asked to consider the law in relation to these decisions on a number of occasions since the legislation was passed. This article explores the relevant provisions of these statutes and some of the difficulties that arise from how they are currently drafted. It also examines how the Guardianship and Administration Tribunal has dealt with applications to withhold or withdraw life-sustaining measures, and suggests a course that might avoid some of the difficulties that are inherent in Queensland's legislative regime.
This article considers the two streams of law that can lead to a conviction for manslaughter unde... more This article considers the two streams of law that can lead to a conviction for manslaughter under the Criminal Code 1899 (Qld). The first stream deals with acts or conduct that cause another's death in circumstances where that death is not an accident, while the second covers those deaths caused by criminal negligence. The article considers how the two streams of law interrelate and, in particular, the extent to which both are available in the same case. Some of the inconsistencies identified by judges in relation to these streams of law are considered and possible solutions are canvassed.
This paper explores the excuses upon which health professionals can rely at common law and under ... more This paper explores the excuses upon which health professionals can rely at common law and under Australian legislation to decline to follow valid advance directives that refuse life-sustaining medical treatment.
A decision to allow a patient's life to end by withdrawing or withholding medical treatment can b... more A decision to allow a patient's life to end by withdrawing or withholding medical treatment can be extremely difficult. In addition to making the appropriate medical and ethical judgments, there are also legal considerations to take into account, the most important of which is ensuring that the death is lawful. This paper addresses when it is legal to withdraw or withhold medical treatment that is needed to keep a patient alive. It draws on cases and legislation from the common law world (including Australia, England and New Zealand) and considers the various legal tests applied in the different jurisdictions -- Two of the most common tests employed in this situation are the "best interests of the patient" test and the "substituted judgment" test. Some jurisdictions also include other criteria as well, such as a requirement that withdrawing or withholding of medical treatment is "not inconsistent with good medical practice". This paper analyses these different legal tests, and after identifying the factors that are judged to be legally relevant to consider when deciding to withdraw or withhold treatment, outlines a preferred model. This model addresses who the relevant decision maker should be, and the criteria that should govern their decision. It suggests that family members are better equipped and more appropriate to act as decision makers than health professionals, and also questions the appropriateness of responsible medical opinion as the decisive factor in such cases, preferring instead an approach more consistent with the principles of self determination. The model also proposes a method for resolving any disputes that arise.
Voluntary assisted dying (VAD) is when a terminally ill person with decision-making capacity cons... more Voluntary assisted dying (VAD) is when a terminally ill person with decision-making capacity consensually ends their life with assistance from an authorised professional. Many countries have legalised VAD, and health professionals’ roles within VAD frameworks are varied. Health professionals must be well informed of their legal obligations to ensure they practice within the legal boundaries, and those professionals with objections toward VAD should ensure that their eligible patients have equitable access. Given the current landscape of VAD, it is important to understand different health professionals’ attitudes toward VAD and what may underpin these attitudes. We explored (a) Australian health professionals’ attitudes toward VAD; (b) the psychological components that underpin those attitudes; (c) health professionals’ level of knowledge about VAD; (d) health professionals’ most common beliefs, emotions, and experiences related to VAD. A cross-sectional correlational survey design was used. A total of 182 Australian health professionals participated in the online survey based on a tripartite model of attitudes. We conducted a binomial logistic regression through a Generalised Linear Mixed Model and found polarised attitudes toward VAD between health professionals. Attitudes were accounted for by beliefs, emotions, education, and strength of religious beliefs. Knowledge of VAD was low, but not associated with overall attitude in our model. We highlight the importance of reflexive practice to help health professionals identify their values and feelings related to VAD, and to understand how these may affect their clinical practice. Low knowledge of VAD suggests that legislative and procedural training should be mandatory.
Objective
Futile treatment, which by definition cannot benefit a patient, is undesirable. This re... more Objective Futile treatment, which by definition cannot benefit a patient, is undesirable. This research investigated why doctors believe that treatment which they consider to be futile is sometimes provided at the end of a patient’s life.
Design Semi-structured in-depth interviews.
Setting Three large tertiary public hospitals in Brisbane, Australia.
Participants 96 doctors from emergency, intensive care, palliative care, oncology, renal medicine, internal medicine, respiratory medicine, surgery, cardiology, geriatric medicine, and medical administration departments. Participants were recruited using purposive maximum variation sampling.
Results Doctors attributed the provision of futile treatment to a wide range of inter-related factors. One was the characteristics of treating doctors, including their orientation towards curative treatment, discomfort or inexperience with death and dying, concerns about legal risk, and poor communication skills. Secondly, the attributes of the patient and family, including their requests or demands for further treatment, prognostic uncertainty, and lack of information about patient wishes. Thirdly, there were hospital factors including a high degree of specialisation, the availability of routine tests and interventions, and organisational barriers to diverting a patient from a curative to a palliative pathway. Doctors nominated family or patient request and doctors being locked into a curative role as the main reasons for futile care.
Conclusions Doctors believe that a range of factors contribute to the provision of futile treatment. A combination of strategies is necessary to reduce futile treatment, including better training for doctors who treat patients at the end of life, educating the community about the limits of medicine and the need to plan for death and dying, and structural reform at the hospital level.
Despite the fact that altruistic surrogacy arrangements occur in Australia, the law does not adeq... more Despite the fact that altruistic surrogacy arrangements occur in Australia, the law does not adequately regulate many important aspects of such arrangements. Failure to regulate surrogacy leaves infertile couples contemplating such treatment as well as clinics dealing with them in an unsatisfactory position. This article examines the law that operates in Australian States and Territories (and the problems associated with them) as well as in New Zealand, the United Kingdom and some United States jurisdictions, considers whether the argument against surrogacy arrangements can be legitimately sustained in modern times, and examines some regulatory regimes that seem to be working satisfactorily elsewhere in the world.
This article outlines the differences in state laws governing property distribution on the breakd... more This article outlines the differences in state laws governing property distribution on the breakdown of a de facto relationship. It argues in favour of a uniform position that applies to all de facto couples, heterosexual as well as homosexual.
For decades, various kinds of assisted reproductive technology ('ART') have been used to facilita... more For decades, various kinds of assisted reproductive technology ('ART') have been used to facilitate pregnancy for infertile couples. Techniques used include artificial insemination, in vitro fertilisation, gamete intra-fallopian transfer and zygote intra-fallopian transfer. Depending on the technique used and the circumstances of the couple, the parents may or may not be genetically related to their offspring. ART of the kind mentioned is now regarded as standard, mainstream medical intervention. While such treatment is now regarded by most as ethically and morally uncontroversial, our society is confronted with many ethical and moral dilemmas as a result of ART and the advances in scientific knowledge associated with reproductive techniques. Who should be entitled to access ART? Should prospective parents be able to select the sex or indeed any other physical characteristics of their child? Should pre-implantation genetic manipulation be permitted if this could have positive medical outcomes for an existing child of the parents? Should the offspring be entitled to information about their genetic origin? As scientific advances make more options available, these, and other, challenging issues will need to be addressed and resolved by our community and lawmakers.
The Australian Medical Association has recently adopted a policy position concerning advance care... more The Australian Medical Association has recently adopted a policy position concerning advance care planning, which is generally supportive of extending patient self-determination beyond the loss of decision-making capacity. It calls for uniform national legislation for legally enforceable advance health directives (AHD), and statutory protection for practitioners who comply with valid AHD, or who do not comply on several grounds. Analysis of the grounds for non-compliance indicate that they undermine patient autonomy, and aspects of the policy are inconsistent with current common law and statutory regimes that allow an adult to complete a legally binding AHD. The policy therefore threatens the patient self-determination, which it endorses, and places doctors who participate in advance care planning at legal risk.
The principle of autonomy is at the heart of the right of a competent individual to make an advan... more The principle of autonomy is at the heart of the right of a competent individual to make an advance directive that refuses life-sustaining medical treatment, and to have that directive complied with by medical professionals. That right is protected by both the common law and, to an extent, by legislation that has been enacted in the United Kingdom and many jurisdictions in Australia. The courts have a critical role in protecting that autonomy, both in those jurisdictions in which the common law continues to operate, and in those jurisdictions which are now governed by statute, and in which judicial determinations will need to be made about legislative provisions. The problem explored in this article is that while the judiciary espouses the importance of autonomy in its judgments, that rhetoric is frequently not reflected in the decisions that are reached. In the United Kingdom and Australia, there is a relatively small number of decisions that consider the validity and applicability of advance directives that refuse life-sustaining medical treatment. This article critically evaluates all of the publicly available decisions and concludes that there is cause for concern. In some cases, there has been an unprincipled evolution of common law principles, while in others there has been inappropriate adjudication through operational irregularities or failure to apply correct legal principles. Further, some decisions appear to be based on a strained interpretation of the facts of the case. The apparent reluctance of some members of the judiciary to give effect to advance directives that refuse treatment is also evidenced by the language used in the judgments. While the focus of this article is on common law decisions, reference will also be made to legislation and the extent to which it has addressed some of the problems identified in this article.
Legislation regulating advance directives exists in six Australian jurisdictions. In all of these... more Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.
The legal framework that operates at the end of life in Australia needs to be reformed.
• Volunt... more The legal framework that operates at the end of life in Australia needs to be reformed.
• Voluntary euthanasia and assisted suicide are currently unlawful.
• Both activities nevertheless occur not infrequently in Australia, in part because palliative care cannot relieve physical and psychological pain and suffering in all cases.
• In this respect, the law is deficient. The law is also unfair because it doesn’t treat people equally. Some people can be helped to die on their own terms as a result of their knowledge and/or connections while some are able to hasten their death by the refusal of life-sustaining treatment. But others do not have access to the means for their life to end.
• A very substantial majority of Australians have repeatedly expressed in public opinion polls their desire for law reform on these matters. Many are concerned at what they see is happening to their loved ones as they reach the end of their lives, and want the confidence that when their time comes they will be able to exercise choice in relation to assisted dying.
• The most consistent reason advanced not to change the law is the need to protect the vulnerable. There is a concern that if the law allows voluntary euthanasia and assisted suicide for some people, it will be expanded and abused, including pressures being placed on highly dependent people and those with disabilities to agree to euthanasia.
• But there is now a large body of experience in a number of international jurisdictions following the legalisation of voluntary euthanasia and/or assisted suicide. This shows that appropriate safeguards can be implemented to protect vulnerable people and prevent the abuse that opponents of assisted dying have feared. It reveals that assisted dying meets a real need among a small minority of people at the end of their lives. It also provides reassurance to people with terminal and incurable disease that they will not be left to suffer the indignities and discomfort of a nasty death.
• Australia is an increasingly secular society. Strong opposition to assisted death by religious groups that is based on their belief in divine sanctity of all human life is not a justification for denying choice for those who do not share that belief.
• It is now time for Australian legislators to respond to this concern and this experience by legislating to enhance the quality of death for those Australians who seek assisted dying.
The purpose of this paper is to provide a basis from which to start an informed and rational dial... more The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper:
How should Australia regulate voluntary euthanasia and assisted suicide?
In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation.
We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful.
There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered.
The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus.
We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues.
If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice.
We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?
Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who ... more Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases.
A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested.
There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests.
Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
Assisted death and voluntary euthanasia have received significant and sustained media attention i... more Assisted death and voluntary euthanasia have received significant and sustained media attention in recent years. High-profile cases of people seeking assistance to end their lives have raised, at least in the popular press, debate about whether individuals should be able to seek such assistance at a time when they consider their suffering to be unbearable or their quality of life unsatisfactory. Other recent developments include a number of attempts to legislate on the issue by the minor parties in Australia and the successful enactment of legislation in a few overseas jurisdictions. However, despite all of the recent attention that has focused on assisted death and voluntary euthanasia, a discussion of the adequacy of existing laws has not made it onto the political agenda of any of the Australian State or Territory governments. This is in spite of the fact that the private views of the majority of our elected Members of Parliament may be supportive of reform. This article explores the role of politicians' views and, as a case study, considers the opinions expressed by a number of Queensland Members of Parliament. In light of the views of these politicians and those of members of the public, as well as considerations arising from current medical practice, the article argues that there is a need for open political debate on assisted death and voluntary euthanasia. The article also suggests ways that such a debate may be achieved while minimising any political impact on governments that are prepared at least to consider this issue.
The principle of self determination in the context of medical decision making is an important one... more The principle of self determination in the context of medical decision making is an important one. For many years now, the common law has recognised that a person can give a directive about a health matter that may be effective if that person later loses capacity to make the decision. The importance of this autonomy was also recognised by the QLRC when it reviewed the law on substituted decision making. In addition to recommending the introduction of a statutory scheme that included advance health directives as one method of decision making for those with impaired capacity, it also recommended the retention of common law directives. Unfortunately, the way in which these recommendations were implemented seems to have defeated these intentions. To remedy this anomaly, it is suggested that the minor legislative amendment recommended in this article be adopted.
This article considers intervention in proceedings about withholding and withdrawing life-sustain... more This article considers intervention in proceedings about withholding and withdrawing life-sustaining medical treatment. Since the early 1990s, there have been a number of important decisions, both in Australia and overseas, about whether life-sustaining treatment should be withheld or withdrawn from an adult who no longer has capacity to make the decision for himself or herself. In almost all of these decisions, intervention by a non-party to the matter has been an issue. This article explores the rules of intervention in applications to appear as a party and as amicus curiae, and considers those rules in the context of decisions to withhold and withdraw life-sustaining medical treatment. The relevant cases are examined as are the advantages and disadvantages of intervention in these circumstances. The article concludes by suggesting a model for intervention that strikes the appropriate balance between ensuring all relevant issues are placed before the court while still respecting the intensely private nature of a decision to withhold or withdraw a life-sustaining measure in any given case.
Since the enactment in Queensland of the Powers of Attorney Act 1998 (Qld) and the Guardianship a... more Since the enactment in Queensland of the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld), a decision can be made to withhold or withdraw life-sustaining medical treatment from an adult who lacks capacity to make such decisions for herself or himself.
The Guardianship and Administration Tribunal of Queensland has been asked to consider the law in relation to these decisions on a number of occasions since the legislation was passed. This article explores the relevant provisions of these statutes and some of the difficulties that arise from how they are currently drafted. It also examines how the Guardianship and Administration Tribunal has dealt with applications to withhold or withdraw life-sustaining measures, and suggests a course that might avoid some of the difficulties that are inherent in Queensland's legislative regime.
This article considers the two streams of law that can lead to a conviction for manslaughter unde... more This article considers the two streams of law that can lead to a conviction for manslaughter under the Criminal Code 1899 (Qld). The first stream deals with acts or conduct that cause another's death in circumstances where that death is not an accident, while the second covers those deaths caused by criminal negligence. The article considers how the two streams of law interrelate and, in particular, the extent to which both are available in the same case. Some of the inconsistencies identified by judges in relation to these streams of law are considered and possible solutions are canvassed.
This paper explores the excuses upon which health professionals can rely at common law and under ... more This paper explores the excuses upon which health professionals can rely at common law and under Australian legislation to decline to follow valid advance directives that refuse life-sustaining medical treatment.
A decision to allow a patient's life to end by withdrawing or withholding medical treatment can b... more A decision to allow a patient's life to end by withdrawing or withholding medical treatment can be extremely difficult. In addition to making the appropriate medical and ethical judgments, there are also legal considerations to take into account, the most important of which is ensuring that the death is lawful. This paper addresses when it is legal to withdraw or withhold medical treatment that is needed to keep a patient alive. It draws on cases and legislation from the common law world (including Australia, England and New Zealand) and considers the various legal tests applied in the different jurisdictions -- Two of the most common tests employed in this situation are the "best interests of the patient" test and the "substituted judgment" test. Some jurisdictions also include other criteria as well, such as a requirement that withdrawing or withholding of medical treatment is "not inconsistent with good medical practice". This paper analyses these different legal tests, and after identifying the factors that are judged to be legally relevant to consider when deciding to withdraw or withhold treatment, outlines a preferred model. This model addresses who the relevant decision maker should be, and the criteria that should govern their decision. It suggests that family members are better equipped and more appropriate to act as decision makers than health professionals, and also questions the appropriateness of responsible medical opinion as the decisive factor in such cases, preferring instead an approach more consistent with the principles of self determination. The model also proposes a method for resolving any disputes that arise.
The fourth edition of Contract Law provides a comprehensive review of the principles of contract ... more The fourth edition of Contract Law provides a comprehensive review of the principles of contract law. Complex topics are explained in a clear and accessible style that and illustrated by succinct cases. This text is also available with a casebook which gives students access to an expanded selection of primary and secondary materials.
This case book contains the essential sections of the most significant cases in Australian contra... more This case book contains the essential sections of the most significant cases in Australian contract law. Ready access to this collection of cases enables students to experience the law through the judges’ own words, and to develop the skills of interpreting and analysing cases in order to refine their understanding of the law. Excerpts from important statutes and writings are also included.
End of Life Law in Australia provides accurate, practical and relevant information to assist you ... more End of Life Law in Australia provides accurate, practical and relevant information to assist you in navigating the challenging legal issues that can arise with end of life decision-making.
This website is an initiative of the Australian Centre for Health Law Research. It is designed to be used by patients, families, health and legal practitioners, the media, policymakers and the broader community to access information about Australian laws relating to death, dying and decision-making at the end of life. These laws are very complex, particularly in Australia where the law differs between States and Territories, and where areas of uncertainty about the law exist. This website provides you with a broad introduction to these laws. It can also help you stay up to date with Recent Developments in the end of life area.
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Papers by Lindy Willmott
Futile treatment, which by definition cannot benefit a patient, is undesirable. This research investigated why doctors believe that treatment which they consider to be futile is sometimes provided at the end of a patient’s life.
Design
Semi-structured in-depth interviews.
Setting
Three large tertiary public hospitals in Brisbane, Australia.
Participants
96 doctors from emergency, intensive care, palliative care, oncology, renal medicine, internal medicine, respiratory medicine, surgery, cardiology, geriatric medicine, and medical administration departments. Participants were recruited using purposive maximum variation sampling.
Results
Doctors attributed the provision of futile treatment to a wide range of inter-related factors. One was the characteristics of treating doctors, including their orientation towards curative treatment, discomfort or inexperience with death and dying, concerns about legal risk, and poor communication skills. Secondly, the attributes of the patient and family, including their requests or demands for further treatment, prognostic uncertainty, and lack of information about patient wishes. Thirdly, there were hospital factors including a high degree of specialisation, the availability of routine tests and interventions, and organisational barriers to diverting a patient from a curative to a palliative pathway. Doctors nominated family or patient request and doctors being locked into a curative role as the main reasons for futile care.
Conclusions
Doctors believe that a range of factors contribute to the provision of futile treatment. A combination of strategies is necessary to reduce futile treatment, including better training for doctors who treat patients at the end of life, educating the community about the limits of medicine and the need to plan for death and dying, and structural reform at the hospital level.
• Voluntary euthanasia and assisted suicide are currently unlawful.
• Both activities nevertheless occur not infrequently in Australia, in part because palliative care cannot relieve physical and psychological pain and suffering in all cases.
• In this respect, the law is deficient. The law is also unfair because it doesn’t treat people equally. Some people can be helped to die on their own terms as a result of their knowledge and/or connections while some are able to hasten their death by the refusal of life-sustaining treatment. But others do not have access to the means for their life to end.
• A very substantial majority of Australians have repeatedly expressed in public opinion polls their desire for law reform on these matters. Many are concerned at what they see is happening to their loved ones as they reach the end of their lives, and want the confidence that when their time comes they will be able to exercise choice in relation to assisted dying.
• The most consistent reason advanced not to change the law is the need to protect the vulnerable. There is a concern that if the law allows voluntary euthanasia and assisted suicide for some people, it will be expanded and abused, including pressures being placed on highly dependent people and those with disabilities to agree to euthanasia.
• But there is now a large body of experience in a number of international jurisdictions following the legalisation of voluntary euthanasia and/or assisted suicide. This shows that appropriate safeguards can be implemented to protect vulnerable people and prevent the abuse that opponents of assisted dying have feared. It reveals that assisted dying meets a real need among a small minority of people at the end of their lives. It also provides reassurance to people with terminal and incurable disease that they will not be left to suffer the indignities and discomfort of a nasty death.
• Australia is an increasingly secular society. Strong opposition to assisted death by religious groups that is based on their belief in divine sanctity of all human life is not a justification for denying choice for those who do not share that belief.
• It is now time for Australian legislators to respond to this concern and this experience by legislating to enhance the quality of death for those Australians who seek assisted dying.
How should Australia regulate voluntary euthanasia and assisted suicide?
In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation.
We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful.
There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered.
The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus.
We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues.
If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice.
We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?
A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested.
There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests.
Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
The Guardianship and Administration Tribunal of Queensland has been asked to consider the law in relation to these decisions on a number of occasions since the legislation was passed. This article explores the relevant provisions of these statutes and some of the difficulties that arise from how they are currently drafted. It also examines how the Guardianship and Administration Tribunal has dealt with applications to withhold or withdraw life-sustaining measures, and suggests a course that might avoid some of the difficulties that are inherent in Queensland's legislative regime.
Futile treatment, which by definition cannot benefit a patient, is undesirable. This research investigated why doctors believe that treatment which they consider to be futile is sometimes provided at the end of a patient’s life.
Design
Semi-structured in-depth interviews.
Setting
Three large tertiary public hospitals in Brisbane, Australia.
Participants
96 doctors from emergency, intensive care, palliative care, oncology, renal medicine, internal medicine, respiratory medicine, surgery, cardiology, geriatric medicine, and medical administration departments. Participants were recruited using purposive maximum variation sampling.
Results
Doctors attributed the provision of futile treatment to a wide range of inter-related factors. One was the characteristics of treating doctors, including their orientation towards curative treatment, discomfort or inexperience with death and dying, concerns about legal risk, and poor communication skills. Secondly, the attributes of the patient and family, including their requests or demands for further treatment, prognostic uncertainty, and lack of information about patient wishes. Thirdly, there were hospital factors including a high degree of specialisation, the availability of routine tests and interventions, and organisational barriers to diverting a patient from a curative to a palliative pathway. Doctors nominated family or patient request and doctors being locked into a curative role as the main reasons for futile care.
Conclusions
Doctors believe that a range of factors contribute to the provision of futile treatment. A combination of strategies is necessary to reduce futile treatment, including better training for doctors who treat patients at the end of life, educating the community about the limits of medicine and the need to plan for death and dying, and structural reform at the hospital level.
• Voluntary euthanasia and assisted suicide are currently unlawful.
• Both activities nevertheless occur not infrequently in Australia, in part because palliative care cannot relieve physical and psychological pain and suffering in all cases.
• In this respect, the law is deficient. The law is also unfair because it doesn’t treat people equally. Some people can be helped to die on their own terms as a result of their knowledge and/or connections while some are able to hasten their death by the refusal of life-sustaining treatment. But others do not have access to the means for their life to end.
• A very substantial majority of Australians have repeatedly expressed in public opinion polls their desire for law reform on these matters. Many are concerned at what they see is happening to their loved ones as they reach the end of their lives, and want the confidence that when their time comes they will be able to exercise choice in relation to assisted dying.
• The most consistent reason advanced not to change the law is the need to protect the vulnerable. There is a concern that if the law allows voluntary euthanasia and assisted suicide for some people, it will be expanded and abused, including pressures being placed on highly dependent people and those with disabilities to agree to euthanasia.
• But there is now a large body of experience in a number of international jurisdictions following the legalisation of voluntary euthanasia and/or assisted suicide. This shows that appropriate safeguards can be implemented to protect vulnerable people and prevent the abuse that opponents of assisted dying have feared. It reveals that assisted dying meets a real need among a small minority of people at the end of their lives. It also provides reassurance to people with terminal and incurable disease that they will not be left to suffer the indignities and discomfort of a nasty death.
• Australia is an increasingly secular society. Strong opposition to assisted death by religious groups that is based on their belief in divine sanctity of all human life is not a justification for denying choice for those who do not share that belief.
• It is now time for Australian legislators to respond to this concern and this experience by legislating to enhance the quality of death for those Australians who seek assisted dying.
How should Australia regulate voluntary euthanasia and assisted suicide?
In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation.
We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful.
There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered.
The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus.
We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues.
If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice.
We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?
A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested.
There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests.
Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
The Guardianship and Administration Tribunal of Queensland has been asked to consider the law in relation to these decisions on a number of occasions since the legislation was passed. This article explores the relevant provisions of these statutes and some of the difficulties that arise from how they are currently drafted. It also examines how the Guardianship and Administration Tribunal has dealt with applications to withhold or withdraw life-sustaining measures, and suggests a course that might avoid some of the difficulties that are inherent in Queensland's legislative regime.
This website is an initiative of the Australian Centre for Health Law Research. It is designed to be used by patients, families, health and legal practitioners, the media, policymakers and the broader community to access information about Australian laws relating to death, dying and decision-making at the end of life. These laws are very complex, particularly in Australia where the law differs between States and Territories, and where areas of uncertainty about the law exist. This website provides you with a broad introduction to these laws. It can also help you stay up to date with Recent Developments in the end of life area.