1 Introduction
This issues paper explores voluntary euthanasia. It is not intended to be exhaustive, however it aims to add to considerations of this very complex and sensitive topic through analysis of the domestic regulatory environment relating to both passive and active forms of voluntary euthanasia, and of relevant international laws by way of comparison with domestic regulation. It concludes with a human rights-based analysis of voluntary euthanasia and some commentary on the practice informed by human rights principles.
The word ‘euthanasia’ is derived from the Greek word euthanatos meaning ‘easy death’.[1] Generally it is used to describe the process of intentionally terminating a person’s life to reduce their pain and suffering.[2] Euthanasia is sought not only by those suffering excruciating pain, but for other reasons such as changes in quality of life resulting from catastrophic physical injury and psychological factors associated with incurable diseases.[3]
The current debate on euthanasia sits within a social context that is in a state of flux. Modern medical technology has led to increasing developments in, and greater availability of, artificial measures to prolong life.[4] Concurrently there has been a significant increase in the ageing of the population internationally[5] and a decline in the influence of organised religion in much of the developed world.[6]
The debate sees those who support an individual’s right to a ‘good death’ at a time of their own choosing at odds with those who believe strongly in the sanctity of human life.[7] Additional is the fear that any form of state-sanctioned ‘killing’ will leave society’s most vulnerable groups at particular risk.[8] Euthanasia raises some of the most fundamental philosophical questions of all – what is life, and are there forms of it that are so unbearable that they render living worthless?[9]
1.1 Terminology
‘Euthanasia’ is often incorrectly characterised as representing one particular kind of practice. However, it is more accurately understood as an umbrella term which covers a vast array of practices that can be described as different forms of euthanasia. These include:
Passive voluntary euthanasia – when medical treatment is withdrawn or withheld from a patient, at the patient’s request, in order to end the patient’s life;
Active voluntary euthanasia – when medical intervention takes place, at the patient’s request, in order to end the patient’s life;
Passive involuntary euthanasia – when medical treatment is withdrawn or withheld from a patient, not at the request of the patient, in order to end the patient’s life;
Active involuntary euthanasia – when medical intervention takes place, not at the patient’s request, in order to end the patient’s life.[10]
Notwithstanding some inevitable overlap between these terms, the parameters of this paper is consideration of the terms ‘passive’ and ‘active’ voluntary euthanasia. Involuntary euthanasia is not considered in this paper.
2 Passive voluntary euthanasia
Passive voluntary euthanasia involves the withdrawal or withholding of medical treatment from a patient, at the patient’s request, in order to end the patient’s life. Examples include not resuscitating a person in cardiac arrest, turning off a life support machine or withholding or withdrawing other medical care that would prolong life.[11]
2.1 Current practice
(a) Good medical practice
Withholding or withdrawing medical treatment currently occurs in Australia under various circumstances and regulations.
First, the Medical Board of Australia and the Australian and New Zealand Society of Palliative Medicine (ANZSPM) states good medical practice involves medical practitioners:
…Understanding that you do not have a duty to try to prolong life at all cost. However, you do have a duty to know when not to initiate and when to cease attempts at prolonging life, while ensuring that your patients receive appropriate relief from distress.[12]
…Accepting that patients have the right to refuse medical treatment or to request the withdrawal of treatment already started.[13]
The Australian Medical Association (AMA) similarly states that medical treatment may not be warranted where such treatment ‘will not offer a reasonable hope of benefit or will impose an unacceptable burden on the patient.’[14]
There is debate, however, as to whether such measures fall within the meaning of euthanasia. The AMA states that not initiating or withdrawing life-prolonging treatment ‘does not constitute euthanasia or physician assisted suicide’ where a medical practitioner is acting in accordance with good medical practice.[15]
The ANZSPM explains that ‘euthanasia and physician assisted suicide involve the primary, deliberate intention of causing the patient’s death’.[16]
The Royal Australian College of General Practitioners (RACGP) similarly states:
Whilst doctors have an ethical duty to preserve life there is also a responsibility to relieve suffering…Death should be allowed to occur with dignity and comfort when death is inevitable…the law classifies the cause of death as the patient’s underlying condition and not the actions of others. Any legislation therefore needs to recognize that a number of existing forms of end of life care, which may hasten death, are recognized as good medical practice and do not constitute euthanasia or assisted suicide.[17]
However, the statements by medical professionals to explain their position that existing end of life practices do not constitute euthanasia appear to reflect an understanding of euthanasia more in line with active, rather than passive, euthanasia. What is clear is that regulations do currently exist to permit the withdrawing or withholding of medical treatment in certain circumstances, regardless of whether such practices are described as passive euthanasia or fall within the meaning of established medical practice.
(b) Legislation
Each state and territory has enacted laws to regulate the act of withholding or withdrawing medical treatment with the effect of hastening death. These laws provide for instruments that allow, in a formal and binding manner, the previously expressed wishes of competent adults to continue to have influence over the kind of treatment they receive (or do not receive) when they lose competence.
No piece of legislation characterises such practices as euthanasia. Indeed, as with members of the medical profession, certain government departments have explicitly stated that such instruments do not permit euthanasia.[18] However, again, such statements seem to be focused on active, rather than passive euthanasia. The Western Australian Department of Health, for example, answers the question ‘Does an Advanced Health Directive permit euthanasia?’ with the statement ‘an Advanced Health Directive cannot require or authorise a doctor or other health professional to take active steps to unnaturally end life.’[19] Despite not using the term, such practices may nonetheless fall within the practices characterised as passive voluntary euthanasia as described above.
There are two forms of instruments that exist to regulate the withholding or withdrawing of medical treatment: 1) advance directives and 2) enduring powers of attorney or guardianship. All states and territories apart from Tasmania and New South Wales have legislation recognising types of ‘advance directive’ (variously described across jurisdictions). All states and territories have legislation recognising enduring powers of attorney or guardianship. The table below sets out which instruments are available in each jurisdiction and the relevant Act.
Table: Legislation relating to passive voluntary euthanasia practices in Australia
Jurisdiction
Does legislation provide for advance directives?
Does legislation provide for enduring powers of attorney/guardianship?
South Australia
Yes – ‘Advance care directives’
(Advance Care Directives Act 2013)
Yes – ‘Substitute decision makers’
(Advance Care Directives Act 2013)
Northern Territory
Yes – ‘Advance consent decisions’
(Advance Personal Planning Act 2013)
Yes – ‘Decision makers’
(Advance Personal Planning Act 2013)
Victoria
Yes – ‘Refusal of treatment certificates’
(Medical Treatment Act 1988)
Yes – ‘Enduring powers of attorney’
(Powers of Attorney Act 2014)
ACT
Yes – ‘Health directions’
(Medical Treatment (Health Directions) Act 2006)
Yes – ‘Enduring powers of attorney’
(Powers of Attorney Act 2006)
Western Australia
Yes – ‘Advance health directives’
(Guardianship and Administration Act 1990)
Yes – ‘Enduring powers of guardianship’
(Guardianship and Administration Act 1990)
Queensland
Yes – ‘Advance health directives’
(Power of Attorney Act 1998)
Yes – ‘Enduring powers of attorney’
(Power of Attorney Act 1998)
Tasmania
No (but an advance care plan can be registered as part of an enduring guardianship)
Yes – ‘Enduring guardianship’
(Guardianship and Administration Act 1995)
New South Wales
No
Yes – ‘Enduring guardian’
(Guardianship Act 1987)
The common key features and differences between these instruments are summarised below:
(i) Advance directives
Advance directives allow competent adults to execute formal directives in writing (except for the ACT where they may be oral),[20] specifying their wishes concerning medical treatment, including the refusal of treatment.[21]
Directives will generally apply in situations where the person has impaired decision-making capacity, meaning they are unable to consent to or refuse medical treatment.[22] For example, in Queensland a directive specifying the withdrawal or withholding of treatment will only operate in certain circumstances (i.e. if the patient has a terminal illness, is in a persistent vegetative state, or is permanently unconscious).[23] In Victoria, a directive to withhold or withdraw treatment can only be made with regard to a current condition.[24]
Directives in relation to refusal of treatment are generally legally binding on health professionals,[25] although there are circumstances in which a health provider will be protected for non-compliance (for example, if there are reasonable grounds to believe that the directive does not reflect the current wishes of the person, or where a directive is uncertain or inconsistent with good medical practice).[26]
Health practitioners who act in good faith and/or reasonably refuse to provide or continue medical treatment in reliance on an advance directive are generally taken to be acting with the consent of the patient.[27] In Western Australia and the Northern Territory, legislation states that a health practitioner is deemed to be acting with valid consent when relying on an advance directive, even where this may hasten death.[28]
With regard to liability, the Victorian, South Australian and Australian Capital Territory Acts specify that practitioners, acting reasonably and/or in good faith, that act in accordance with an advance directive are generally protected from criminal liability.[29] In Queensland, a person acting in accordance with an advance health directive is ‘not liable for an act or omission to any greater extent than if the act of omission had happened with the principal’s consent.’[30] However, the Queensland Act also specifies that reliance on an advance directive does not prevent criminal liability under section 296 of the Queensland Criminal Code which criminalises the acceleration of death.[31]
New South Wales has not legislated to provide for advance directives. However, it has developed ‘Using Advance Care Directives’ guidelines on the management of end-of-life decisions, and advance care directives that comply with the requirements of these guidelines are legally binding in NSW, functioning as an ‘extension of the common law right to determine one’s own medical treatment’ (discussed below).[32]
(ii) Enduring powers of attorney or guardianship.
Enduring powers of attorney or guardianship allow a person to appoint one or more agents to make decisions about the provision or refusal of medical treatment if and when that person has impaired decision-making capacity.[33]
The attorney or guardian is generally required to make treatment decisions that are consistent with directions given by the person when competent, including those specified within the enduring power of attorney/guardianship itself, or in an advance directive.[34]
In some jurisdictions, there are limitations on the ability of attorneys and guardians to refuse treatment in certain situations. In Victoria, an agent or guardian may only refuse medical treatment on behalf of a patient if the medical treatment would cause unreasonable distress to the patient, or there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted.[35] In Queensland, an enduring power of attorney cannot consent to the withholding or withdrawal of a life-sustaining measure unless this would be consistent with good medical practice.[36]
As mentioned above with regards to advance directives, health practitioners who reasonably/in good faith rely on the decision of an attorney or guardian are generally protected from criminal and civil liability (in the Northern Territory, Western Australia, Tasmania, New South Wales and Queensland because they are deemed to have acted with the patient’s consent) if the agent makes refusal of treatment decisions in compliance with a valid instrument.[37]
(c) Common law
Common law rules govern the doctor-patient relationship and the provision of medical treatment more generally.[38] Advance directives legislation in every Australian jurisdiction except for South Australia explicitly states that common law rights are not displaced by the legislation.[39]
With regard to passive voluntary euthanasia, the common law allows a competent adult to refuse medical treatment, even where that refusal will lead to death.[40] Where a patient’s refusal is both voluntary and informed, the decision must be respected and practitioners acting in accordance with such decisions are shielded from liability.[41]
Two cases considering the common law position concerning the right to refuse medical treatment help to clarify this position.
(i) Case law
Hunter and the New England Area Health Authority v A:[42]
In this case the Supreme Court of New South Wales considered the validity of a common law advance directive (there being no legislative provisions for such directives in NSW) given by Mr A, refusing kidney dialysis. One year after making the directive Mr A was admitted to a hospital emergency department in a critical state with a decreased level of consciousness. His condition deteriorated to the point that he was being kept alive by mechanical ventilation and kidney dialysis. The hospital sought a judicial declaration to determine the validity of his advance directive.
McDougall J confirmed that the directive was valid and held that the hospital must respect this decision. His Honour stated and applied the common law principle that:
A person may make an ‘advance care directive’: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and it is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.[43]
Brightwater Care Group v Rossiter:[44]
This case, also dubbed the ‘right to starve’ case, concerned a contemporaneous rather than anticipatory refusal of treatment by Mr Rossiter, a man with quadriplegia who was ‘unable to undertake any basic human functions’, including taking nutrition or hydration orally. Mr Rossiter was not terminally ill, dying or in a vegetative state and had full mental capacity. He had ‘clearly and unequivocally’ indicated that he did not wish to continue to receive medical treatment which, if discontinued, would inevitably lead to his death.
Martin CJ considered the position at common law and concluded:
[A]t common law, the answers to the questions posed by this case are clear and straightforward. They are to the effect that Mr Rossiter has the right to determine whether or not he will continue to receive the services and treatment provided by Brightwater and, at common law, Brightwater would be acting unlawfully by continuing to provide treatment [namely the administration of nutrition and hydration via a tube inserted into his stomach] contrary to Mr Rossiter’s wishes.[45]
These cases concern the common law position regarding the doctor-patient relationship and provision of medical treatment in general, rather than the issue of passive voluntary euthanasia specifically. Further research is needed to confirm the current common law position in relation to passive voluntary euthanasia practices.
2.2 Comparative international legislative schemes
As the above section demonstrates, the regulation of passive voluntary euthanasia practices in Australia is complex and, in some aspects, inconsistent. Generally, however, the Australian context reflects trends in comparable international jurisdictions, as shown by the following overview of comparative regulation and jurisprudence.
(a) United States of America
Legislation providing for advance directives (often referred to as ‘living wills’) and/or enduring power of attorney exists in all states in the United States. These instruments allow competent adults to state, in advance, that they do not wish to be kept alive by medical treatment in the latter stages of terminal illness.[46] Legislation in some states gives a patient’s family members the power to make decisions about life-sustaining medical treatment in situations where the patient has become incompetent and has not made an advance directive.[47]
(b) United Kingdom
Under the Mental Capacity Act UK (2005), [48] ‘advance decisions’ give a person the right to make a decision to refuse healthcare treatment in advance, including in situations where this would result in their death.[49] Advance decisions are legally binding and any person who withholds or withdraws treatment in accordance with a valid and applicable advance decision will not incur liability.[50]
The UK Act also allows a person to appoint an agent to act on their behalf in the event that they lose capacity in the future, in the form of a ‘lasting power of attorney’.[51] The attorney can be expressly authorised to give or refuse consent to medical treatment, including life-sustaining treatment.[52]
(c) Canada
Many of the provinces in Canada (e.g. British Colombia, Saskatchewan, Manitoba and Nova Scotia)[53] have enacted legislation that permits people to make advance directives (variously termed). These instruments record a person’s wishes or instructions regarding their future health care, and permit a person to appoint a substitute decision-maker to make health care decisions on their behalf if they become incompetent.
2.3 Summary
This section has outlined the circumstances in which individuals or their authorised agents can decide to withhold or withdraw medical treatment, including where this would result in death.
While the regulatory approach varies between Australian states and territories, all states and territories permit people, in one form or another, to formally communicate their wishes in end of life situations, an approach reflected by international practice.
Passive voluntary euthanasia thus appears to be largely accepted within current medical practice (and, in most jurisdictions, generally recognised and permitted by law), despite the refusal of medical practitioners and policy makers to describe these activities in such terms.