UPDATED DECEMBER 2019

The recently released Australian movie, “Last Cab to Darwin”, will generate conversations and recall the Northern Territory’s Rights of the Terminally Ill Act 1995.

This Act came into effect on 1 July 1996 and was subsequently overridden by the Commonwealth Parliament. Courts in Australia, Canada, the UK and the USA have all made it clear that there is no legal duty to continue medical treatment that is futile. These courts have also upheld the right of competent adults to decide to cease treatment that is keeping them alive.

Voluntary assisted suicide or euthanasia is qualitatively different. Voluntary euthanasia is generally where a person performs an act that intentionally ends the life of another person at the request of the other person. Assisted suicide is where a person dies after being provided by another person (often a health professional) with the means or knowledge required to kill themselves.

Terminology on this issue continues to create real difficulties. What is the difference between 'active' and 'passive' euthanasia – turning off the life support ventilator, as against administering the lethal drug? 'Voluntary' and 'involuntary' euthanasia – a legally competent person with a terminal illness directing that treatment cease, as against a person who is brain dead and relatives agreeing to withdrawal of life support?

Debate also continues over whether there is a legal 'right to life', whether a person can agree to waive such a right, the interaction with the International Covenant on Civil and Political Rights (ICCPR) and whether a person can consent to an act that would end their life.

Legislation to regulate euthanasia has been in place for many years in the Netherlands, Belgium, Luxembourg and in Oregon, Washington and Vermont in the United States. The legal structure of these laws varies. For example, the 2002 Netherlands law (Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2000) did not remove the criminal offence of euthanasia, but created an exception for doctors who acted in accordance with the criteria and process set out in the law. Belgium adopted a similar approach.

The Oregon Death with Dignity Act 1994 followed a referendum in 1994 and allows terminally ill persons to obtain and use prescription drugs from their physicians for self-administration. In 2014, 105 terminally ill people used this provision.

In Australia, many moves have been made in State, Territory and Commonwealth parliaments to introduce bills to permit euthanasia. To date, all have been unsuccessful*. Due to constitutional provisions, legislative change is required at a State and Territory level.

Euthanasia and assisting suicide can result in charges of murder or manslaughter under State and Territory criminal law. Suicide itself is not a crime, but aiding or abetting suicide does remain a crime.

For example Section 31C of the Crimes Act 1900 (NSW) provides:

31C Aiding etc suicide

1. A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years.
    
2. Where:
    
   1. A person incites or counsels another person to commit suicide, and that other person commits, or
   2. Attempts to commit, suicide as a consequence of that incitement or counsel, the first mentioned person shall be liable to imprisonment for 5 years.

It is not a defence for the accused to have been motivated by compassion or that the person who died or attempted suicide agreed. It is also possible that offences under State and Territory drugs and poisons legislation, and Commonwealth legislation regulating importation of drugs into Australia and the use of postal and internet services, could be committed.

Convictions have been recorded in NSW, Victoria and Queensland under the criminal law. However, in sentencing, judges have often taken into account the particular circumstances of each case.

In Australia, the Directors of Public Prosecutions must decide whether to proceed with a prosecution of persons who have assisted with euthanasia and/or voluntary suicide by another person. All of the Australian State and Territory DPPs have prosecution guidelines, although none have specific guidelines relating to prosecutions for euthanasia or assisted suicide. Broadly speaking, the guidelines focus on two considerations: 

• Is there sufficient evidence to support a conviction?; and
• Is it in the public interest to prosecute?

In relation to the public interest question, the guidelines set out a number of discretionary factors to determine whether it is in the public interest to proceed with a prosecution (for example, see the NSW DPP Guidelines).

In England and Wales there are now specific DPP prosecution guidelines on whether to prosecute in cases of alleged assisted suicide. Following a UK House of Lords application for judicial review by Debbie Purdy in 2009 (R [on the application of Purdy] v DPP [2009] UKHL 45) the DPP was ordered to set out a policy to guide decisions to prosecute in cases of encouraging or assisting suicide in England and Wales (Note: the guidelines do not specifically cover euthanasia where the charge is likely to be murder or manslaughter).

A draft policy was prepared and following wide public consultation, the policy was published in 2010. The policy sets out 16 factors in favour of prosecuting and 6 factors that do not support prosecution (see Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making).

Public Interest Factors Tending in Favour of Prosecution under the England and Wales Assisted Suicide Policy
 

1. The victim was under 18 years of age.
2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed  decision to commit suicide.
3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide.
4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect.
5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative.
6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim.
7. The suspect pressured the victim to commit suicide.
8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide.
9. The suspect had a history of violence or abuse against the victim.
10. The victim was physically able to undertake the act that constituted the assistance him or herself.
11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication.
12. The suspect gave encouragement or assistance to more than one victim who were not known to each other.
13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance.
14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer (whether for payment or not), or as a person in authority, such as a prison officer, and the victim was in his or her care.
15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present.
16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide.

Public Interest Factors Tending against Prosecution under the England and Wales Assisted Suicide Policy
 

1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide.
2. The suspect was wholly motivated by compassion.
3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance.
4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide.
5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide.
6. The suspect reported the victim’s suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance.

It is likely that the England and Wales Guidelines will influence decisions made by DPPs in Australia on whether to proceed with a prosecution for aiding or abetting suicide and may also assist in considerations of charges of murder or manslaughter associated with allege euthanasia (White B and Downie J, in Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making, attach a set of guidelines that might be used in Australia as an appendix pp 703 – 705).

What is the current Australian legal position on end of life for persons with a terminal illness?

The legal position in Australia can be summarised as:

1. Withholding or withdrawing life sustaining treatment is lawful in a range of circumstances affirmed by a number of judicial decisions in Australia (The legal principle underpinning the lawfulness of this action is that it involves a failure to treat where there is no legal duty to treat.  See White B and Willmott J: How should Australia regulate voluntary euthanasia and assisted suicide?).
   
   These circumstances include: 
    
   1. A competent adult decides not to have or continue the treatment;
   2. A valid advance care directive was made by a competent person who subsequently loses their capacity to make such decisions;
   3. A substitute decision maker (for example, a guardian or person responsible under guardianship legislation) makes a decision not to have or continue the treatment;
   4. A parent consents in relation to their child and the decision is in the best interests of the child;
   5. A doctor reasonably determines that the treatment is futile; and/or
   6. A court order authorises the withholding or cessation of treatment.
       
2. Provision of palliative care in accordance with a plan agreed by the patient or their substitute decision maker is lawful where the primary intention of the plan is to relieve pain and to support and comfort the patient and not to cause or hasten death (even though that might be a side effect of the actions taken under the plan).
    
3. Euthanasia and assisted suicide is unlawful in all States and Territories.

What should health professionals and health services do to ensure that decisions made on end of life care are lawful?

While each situation must involve a detailed consideration of the circumstances for the individual patient or client, the following factors are likely to support a conclusion that the death of the patient or client following withholding of treatment, withdrawal of treatment and/or the implementation of a palliative care plan was lawful.

1. The patient has a terminal illness with no reasonable prospect of cure or recovery and this conclusion is supported by independent health professionals.
    
2. If the patient is an adult and competent to make decisions regarding their treatment:
   1. The patient has directed that the treatment should be withheld or withdrawn and/or agreed to the palliative care plan;
   2. An independent health professional agrees that the patient is competent to make such a decision; and
   3. The patient is given a reasonable time to reconsider and confirm their decision.
       
3. If the patient is an adult and is not competent to make these decisions, the patient has made an advance care directive clearly indicating their wishes and/or a substitute decision maker under guardianship legislation has agreed with the proposed decision.
    
4. If the patient is a child and has not expressed a wish to the contrary, the parent or legal guardian has agreed to the plan and the plan has been confirmed by an independent health professional as being in the best interests of the child.
    
5. In the absence of (2), (3) or (4), a court has approved the plan.

*NB. Since the original publication of this article, both Victoria and Western Australia have implemented Voluntary Assisted Dying laws:

Voluntary Assisted Dying Act 2017
Voluntary Assisted Dying Bill 2019

This article was included in the recent Holman Webb Health Law Bulletin.  To read other articles in the September edition of the bulletin, please click here.