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Euthanasia - the Australian Law in an International Context
Part 1: Passive Voluntary Euthanasia
Natasha Cica - Consultant
Law and Public Administration Group
Major Issues
Preface
Introduction
Competent Adults
The statutory right to refuse unwanted
medical treatment in advance
Competent Children
Endnotes
Major Issues
In the early hours of 25 May 1995 the Northern Territory passed
the Rights of the Terminally Ill Act 1995 (NT) - becoming the first
jurisdiction in the world to permit a doctor to end the life of a terminally
ill patient at their request.
The Act came into operation on 1 July 1996, but no-one has yet used
it to end their life - although at least one person, Max Bell, has tried.
Suffering from terminal stomach cancer, the 66-year old taxi driver left
his home in Broken Hill to travel to Darwin to die. He returned home and
has since died of natural causes after being unable to find, while in
the Northern Territory, two of the three doctors required to examine him
as stipulated under the Act. His last days were broadcast on national
television.
So far, the law has survived an attempt in August 1996 in the Territory
Parliament to repeal it and a legal challenge in the Northern Territory
Supreme Court. Leave is being sought to challenge the Act in the High
Court. In the Federal Parliament, a Private Member's Bill designed to
override the Act is due to be introduced in September 1996.
The law has rekindled a very emotional debate on euthanasia which crosses
party-political lines. Polls, including a Newspoll in The Australian
in early July, suggest that a majority of Australians are in favour
of euthanasia, as are the Doctors Reform Society and support groups for
people suffering from HIV/AIDS. Those against include the Australian Medical
Association, many Aboriginal groups, and the Churches.
The debate pits those who support an individual's right to a 'good death'
at a time of their own choosing, against those who believe in the sanctity
of human life, and who worry that any form of State-sanctioned killing
will leave society's weakest even more vulnerable. It touches on the most
fundamental philosophical questions of all - what is life, and are there
are some forms of life so truncated that they are not worth living. This,
against the background of spiralling health costs, and the increasing
ability of technology to prolong life.
This paper, the first in a series of four, puts the euthanasia debate
in the wider national and international legal context. This first volume
deals with passive voluntary euthanasia - the withdrawal or withholding
of medical treatment at the patient's request in order to end the patient's
life. The second part deals with active voluntary euthanasia - where a
doctor actively take steps, at a patient's request, to end a patient's
life. This volume also examines the Northern Territory law. The final
volumes will deal with situations where, without the patient's consent:
medical treatment is withdrawn or withheld in order to end the patient's
life; or health professionals actively take steps to end the patient's
life.
In Australia, the common law already allows a competent adult to refuse
medical treatment, even if the refusal will lead to death. The patient's
refusal must be voluntary and informed. If these conditions are met, the
patient's request must be respected. It is likely that this right extends
to a pregnant woman, even if her refusal means that both she and her unborn
child will die. At common law, a competent adult can also give a binding
anticipatory refusal of medical treatment - including life-sustaining
treatment.
In contrast, a child's right to refuse medical treatment is less clear.
Recent English cases have found that a parent or guardian may override
a child's refusal. This may not be the law in Australia. But in any case,
it is clear that a court may override a child's refusal if it believes
it is in the child's 'best interests' to do so, and would almost certainly
take that course if the medical treatment was necessary to keep the child
alive.
In 1976, the state of California in the United States was the first
place in the world to enact 'living wills' legislation enabling a person
to make a binding written directive about medical treatment including
anticipatory refusal of treatment in certain circumstances. More than
40 other jurisdictions in the US have enacted similar legislation as have,
in Australia, the Australian Capital Territory, the Northern Territory,
South Australia and Victoria.
In Australia, South Australia, the ACT and Victoria, also allow a competent
adult to execute an enduring power of attorney, allowing another specified
adult to act as agent and make decisions about medical treatment should
the principal become incompetent. These decisions extend to refusing or
consenting to life-sustaining treatment.
Twenty-five years ago, two commentators on the medical, legal and ethical
implications of euthanasia stated the following:
Euthanasia - a happy death - is every man's hope. Though we
pray to be saved from sudden death, we certainly do not wish a lingering
one: an easy death, in sleep perhaps, when we are already mentally and
morally prepared for it - that is what most of us would ask for ourselves.
When we are ill we expect our doctors to relieve us in our pain, and console
us in our anxieties; in addition, a dying man expects his doctor to use
his skill to make death when it comes as easy and painless as possible.
In this we are seldom disappointed. If this, the literal meaning, were
all that was meant by the use of the word euthanasia, there would be no
one who could object to it on any grounds, nor would there be anyone who
thought it necessary to pass an Act of Parliament to legalise it. It would
simply be a word to describe every man's wish, and every doctor's endeavour
at the approach of death.(1)
There is no doubt that the word 'euthanasia' means different things
to different people. It therefore is an imprecise and potentially confusing
term. It literally refers to a 'good death', or a 'gentle and easy death'.(2)
As such a death may occur in many ways, and the assistance of others to
bring about such a death is lawful in some circumstances but not in others,
'euthanasia' is not a particularly helpful term for the purposes of legal
or ethical analysis.
Another commentator notes:
I take euthanasia to have acquired at least the following meanings.
It refers to actively bringing about the death of a patient, whether with
or without the patient's consent, and to passively allowing a patient
to die, with or without consent, when it would have been possible by continued
treatment to keep the patient alive.(3)
For greater clarity, therefore, euthanasia can be divided into the following
four categories:
- 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
This apparently neat and simple way of classifying different kinds of
euthanasia can obscure important areas of overlap between the categories.(4)
It can also obscure important internal distinctions within the categories.
This classification system nonetheless can be used to highlight important
differences, legally and ethically, between different kinds of 'medical
decisions concerning the end of life',(5) and between different situations
in which such behaviour occurs.
This paper therefore adopts these four categories. It discusses the
Australian law relating to the first of these categories: passive voluntary
euthanasia. Comparison is made, where appropriate, with the legal rules
relating to passive voluntary euthanasia developed in other common law
countries: England, Canada and the United States of America.
The law relating to the other categories of euthanasia - active voluntary
euthanasia, passive involuntary euthanasia and active involuntary euthanasia
- will be discussed in forthcoming papers.
There is no Australian case law dealing specifically with passive voluntary
euthanasia. Analysis of the common law position therefore is based upon
application of the basic legal rules governing the doctor-patient relationship
and the provision of medical treatment generally. Some assistance may
be derived from case law from other common law jurisdictions which is
likely to be of persuasive authority in Australia. In summary, the common
law in Australia confers a right upon competent adult patients to refuse
any kind of medical treatment. This extends to treatment necessary to
keep the patient alive. The common law almost certainly does not confer
the same right upon children.
The legal status of passive voluntary euthanasia in Australia is also
affected by legislation. In four Australian States and Territories - South
Australia, Victoria, the Northern Territory and the Australian Capital
Territory - there are statutory mechanisms that give legal recognition
to anticipatory refusals of medical treatment, including life-sustaining
treatment, by competent adults. Children cannot use these statutory mechanisms.
Other legislative provisions in South Australia seem to confer a right
to refuse life-sustaining medical treatment on older children.
At common law, a competent adult patient can refuse to consent to the
initiation or continuance of medical treatment. A voluntary and sufficiently
informed refusal of medical treatment by such a patient must be respected
by a doctor.
An adult patient is presumed to be competent to decide whether to consent
to or refuse proposed medical treatment. This presumption is only rebutted
if it is shown that the patient lacks broad understanding of the nature
and effect of the particular treatment proposed.(6) The patient will have
this understanding if he or she can do the following: comprehend and retain
the necessary information about treatment; believe that information; and
weigh the information, balancing risks and needs, to arrive at a choice.(7)
The patient's capacity is to be assessed at the time when the patient
makes his or her decision about treatment.(8) The more serious the decision
facing the patient, the greater the level of understanding required by
the law.(9)
If a health care professional does not respect a valid refusal of medical
treatment, she or he risks civil or criminal liability for trespass to
the person.(10) The most relevant category of trespass to the person in
the medical context is the tort of battery.(11) The tort of battery is
committed by '... intentionally bringing about a harmful or offensive
contact with the person of another ... The insult in being touched without
consent has been traditionally regarded as sufficient, even though the
interference is only trivial and not attended with actual physical harm.'(12)
By offering protection from the insult of interference with the person,
the tort of battery seeks to uphold the fundamental common law principle
that every person has a right to bodily integrity. That right was expressed
by Blackstone in his Commentaries as follows:
[T]he law cannot draw the line between different degrees of
violence, and therefore totally prohibits the first and lowest stage of
it; every man's [sic] person being sacred, and no other having a right
to meddle with it, in any [sic] the slightest manner.(13)
The right to bodily integrity was famously articulated in the medical
context in the early US case Schloendorff v. Society of New York Hospital
:(14)
Every human being of adult years and sound mind has a right
to determine what shall be done with his [sic] own body; and a surgeon
who performs an operation without his patient's consent commits an assault.
The principle was affirmed recently by the High Court of Australia in
Secretary, Department of Health v. JWB and SMB.(15) The High Court
stated that the requirement that a legally valid consent be obtained before
medical treatment can be administered originates in 'the right in an individual
to choose what occurs with respect to his or her own person'(16) and thereby
'protects the autonomy and dignity of the individual'.(17) In discussing
this need for consent, the High Court also variously referred to 'the
principle of personal inviolability',(18) 'the right to personal security',(19)
'the right to physical integrity [that] protects a person's self-estimate',(20)
and'[a person's] rights of control and self-determination in respect of
his or her body'(21) and 'a person's right of bodily integrity'.(22)
The common law jealously protects a competent adult's right to refuse
unwanted medical treatment. Thus courts in England, Canada and the United
States of America have held that a competent adult patient's refusal to
consent to medical treatment must be respected even if the patient's death
is likely or certain to result from that refusal. In a leading case decided
in 1992, the English Court of Appeal stated the principle as follows:
Every adult has the right and capacity to decide whether to
accept or to refuse medical treatment. This is so even if refusing treatment
may risk permanent injury to health or even lead to premature death. It
matters not whether the reasons for making the choice are rational, irrational,
unknown or even non-existent. The patient's right to self-determination
will outweigh the very strong public interest in upholding the concept
that all human life is sacred and that it should be preserved if at all
possible.(23)
A competent adult's right to refuse life-sustaining treatment subsequently
was endorsed by the English House of Lords.(24)
In 1991, the Ontario Court of Appeal in Canada had expressed a competent
adult's right to refuse life-sustaining medical treatment in the following
terms:
The right of self-determination .. obviously encompasses the
right to refuse medical treatment. A competent adult is generally entitled
to reject a specific treatment or all treatment, or to select an alternate
form of treatment, even if the decision may entail risks as serious as
death and may appear mistaken in the eyes of the medical profession or
the community.... For [the freedom of individuals to make choices concerning
their medical care] to be meaningful, people must have the right to make
choices that accord with their own values regardless of how unwise or
foolish those choices may appear to others.(25)
This principle was also affirmed by the Quebec Supreme Court in 1992.(26)
Courts in the United States of America have reached a similar result
by relying on the individual's common law right to 'informed consent',
which incorporates the right to refuse to consent to medical treatment.
Many US courts have also held that a competent adult can refuse life-sustaining
medical treatment on the basis of the individual's constitutional right
to privacy.(27)
Despite stating that an individual's common law right to self-determination
in this context is not absolute and must be weighed against competing
state interests (an interest in the preservation of life; an interest
in preventing suicide; an interest in preserving the integrity of the
medical profession; and an interest in protecting innocent third parties),(28)
United States courts nonetheless have generally upheld refusals of life-sustaining
medical treatment by competent adult patients.(29) The application of
constitutional law analysis by these courts, offering interpretations
of both the Federal and State Constitutions, has generally led to the
same conclusion. The United States Supreme Court, however, has not yet
unequivocally confirmed that the Federal Constitution confers on an individual
the right to refuse unwanted life-sustaining medical treatment.(30)
Importantly, the English and North American courts have held that the
common law right to refuse life-sustaining (or any other) medical treatment
is not a right which is confined to patients who are terminally ill.(31)
These courts have also held that a refusal of life-sustaining medical
treatment does not amount to an attempt to commit suicide.(32) They have
instead characterised such a refusal as merely a decision to allow the
patient's illness or condition to take its 'natural' course. One important
consequence of this is that a doctor who respects a patient's refusal
of life-sustaining treatment will not be liable for assisting that patient's
suicide.
None of these issues has been explored by an Australian court. It is
likely, however, that the conclusions reached - if not the arguments and
reasoning used to arrive at those conclusions - by an Australian court
examining these issues would resemble those reached by the English and
North American courts.
Recent English and Canadian case law also establishes that a competent
adult can give a binding anticipatory refusal of medical treatment, including
a refusal of life-sustaining medical treatment.(33) This will be as effective
as a contemporaneous refusal by a competent adult patient, provided the
following three elements are satisfied:
- the patient was competent to refuse to consent to the treatment at
the time of the prior refusal; and
- the patient anticipated and intended this decision to apply to the
circumstances that ultimately prevailed; and
- the patient's decision was reached without undue influence.(34)
Medical treatment generally can be administered without consent if it
is necessary to avert an imminent risk to a patient's life or health,
and the patient lacks the capacity to give or refuse consent (for example,
because the patient is unconscious).(35) The common law recognition of
anticipatory refusals of medical treatment by competent adults means,
however, that a health care professional cannot administer emergency treatment
if he or she is aware that the patient has expressed a valid anticipatory
refusal of such treatment.(36)
This case law does not demand that an anticipatory refusal of medical
treatment be in writing in order to be legally effective.(37) Oral statements
can suffice, but it could be difficult to adduce sufficient evidence to
verify that a person had made statements that were sufficiently clear
and clearly applicable to the situation that has eventuated.(38) The existence
of a written, signed and witnessed document therefore may serve as useful
evidence that the patient made an anticipatory refusal. The existence
of such a document will not necessarily mean, however, that the patient's
anticipatory refusal is legally valid. What is ultimately important is
whether the patient's decision to refuse treatment satisfies the three
conditions listed above, rather than the way in which that decision has
been recorded.(39)
The second of these conditions, namely that the patient anticipated
and intended the decision to apply to the circumstances that ultimately
prevailed, is the most likely of the three to invalidate an anticipatory
refusal of treatment. Doctors and courts may be inclined to interpret
both written and oral anticipatory refusals of treatment as restrictively
as possible, particularly where the patient will die without the proposed
treatment.(40) The risk of this occurring may be minimised if the patient
executes a document that:
- uses clear, succinct and non-technical language; and
- avoids detailed provisions about particular ailments or conditions
or particular treatments or procedures, but instead refers to treatments
with particular purposes.(41)
Case law from the United States of America is broadly consistent with
these common law principles articulated by the English and Canadian courts.
Courts in the United States generally have held that an anticipatory refusal
of medical treatment by a competent adult will authorise the withholding
or withdrawal of that treatment in the event of the patient's incompetence,
provided it is sufficiently clear that the patient contemplated the situation
that eventuated.
The US courts have emphasised that a competent adult patient's common
law right to consent to or refuse medical treatment, including life-sustaining
medical treatment, survives the onset of incompetence.(42) According to
this principle, respect for an incompetent patient's right of self-determination
demands that decisions about that person's medical treatment be made,
where possible, by applying what is known as the 'subjective test'.(43)
Under this test, 'life-sustaining treatment may be withheld or withdrawn
from an incompetent patient when it is clear that the patient would have
refused the treatment under the circumstances involved'.(44) It will be
clear that the patient would have refused the proposed treatment if the
patient, when competent, expressed his or her wishes in advance.(45)
US courts generally have required 'clear and convincing evidence' of
the patient's actual wishes before they will use this approach to authorise
the withholding or withdrawal of life-sustaining medical treatment from
an incompetent patient.(46) Written directives are more likely to meet
this evidentiary standard.(47) A valid directive can also take the form
of oral statements made to family members, friends or health care providers,
the probative value of which will vary 'depending on the remoteness, consistency
and thoughtfulness of the prior statements ... and the maturity of the
person at the time of the statements.(48)
Most State legislatures in the United States of America have enacted
legislation that gives legal effect to appropriately expressed anticipatory
refusals of medical treatment by competent adults, in specified circumstances.(49)
The US cases exploring the law relating to anticipatory refusals of medical
treatment therefore have mainly arisen in States where there is (or was)
no such legislation, or in situations where the State legislation does
not require or seem to permit the patient's prior wishes to be respected.
Again, the English and North American cases dealing with anticipatory
refusals of medical treatment are not binding legal authority in Australia.
An Australian court is likely, however, to consider the arguments and
results in these cases if called upon to state the common law position
in Australia.
What is 'medical treatment'?
The English and North American cases indicate that a competent adult's
common law right to refuse life-sustaining medical treatment includes
the right to refuse artificial ventilation and, more controversially,
artificial hydration and nutrition.(50)
There is more legal uncertainty in respect of refusals of the following,
where public policy concerns may override the right of the individual
patient to refuse unwanted care:(51)
- pain relieving medication;
- direct oral administration of food and water;(52)
- 'nursing care', i.e. care to maintain bodily cleanliness.(53)
It is possible that the scope of a patient's right to refuse these kinds
of 'treatment' may be broader if the refusal is contemporaneous rather
than anticipatory.(54)
It seems that a competent adult has a legal right at common law to refuse
life-sustaining treatment even if she is pregnant and the foetus she is
carrying will die as a result of her refusal. There are no Australian
cases addressing this question, but the report of a recent inquiry commissioned
by the Australian Medical Association and other concerned professional
groups(55) concludes:
When a competent, properly advised pregnant woman has clearly
communicated her decision to decline a particular form of treatment, there
are no circumstances in which the law should seek to override this decision.
The principle that her wishes should be respected should prevail, regardless
of the degree of risk - either to herself or the fetus - which her decision
entails. In some circumstances, this will mean that the woman will die
in labour or that the fetus will not be born alive or will be born with
a disability. The principle should also prevail, whether the recommended
treatment is invasive or minor.(56)
Accordingly, the report recommends that the States and Territories should
consider enacting legislation to clarify the law, '[to] provide that it
is unlawful for a doctor to perform a medical procedure on a mentally
competent pregnant woman when she has expressly declined to give her consent
to that procedure'.(57)
Such a result would confirm that the Australian law on this issue is
consistent with the substantial body of case law in England and Australia
holding that: first, a foetus does not have any legal rights unless and
until it is born alive(58); and secondly, a court will not intervene to
protect a foetus by making it a ward of court(59) or issuing an injunction
to stop an abortion.(60)
The North American case law affirms a pregnant woman's legal right to
refuse medical treatment regardless of the consequences. In the United
States of America, courts addressing this question initially tended to
override the refusal by competent pregnant women of medical treatment
recommended as necessary to save their lives.(61) This trend was reversed
by a landmark decision of the District of Columbia Court of Appeals in
1990, known as 'the Angela Carder case'.(62) By a 7:1 majority that court
strongly affirmed that a competent patient's right to bodily integrity,
and her concomitant right to make decisions about her own medical treatment,
is not diminished simply by virtue of being pregnant. The court stressed
that a pregnant patient's wishes concerning treatment, including treatment
needed to keep her alive, therefore must be respected in all except the
'extremely rare and truly exceptional' case.(63) It left open the possibility
that no circumstances could ever be sufficiently extraordinary or compelling
to justify invasive medical treatment against a pregnant patient's wishes.(64)
Canadian courts have also refused to intervene on behalf of the foetus
to override refusals by pregnant patients to consent to recommended medical
treatment.(65)
The English case law displays internal incoherence. On one hand, there
is the strong line of authority referred to above that refuses to confer
legal personality on a foetus and refuses to protect the foetus from the
behaviour of a pregnant woman that would damage or kill it. On the other
hand, there is a 1992 decision of the Family Division of the English High
Court authorising performance of a caesarean section against the wishes
of a pregnant woman, to save the life both 'of the patient and the unborn
child'.(66) Both the result and the legal reasoning in that case have
been widely criticised.(67) A different decision is likely to be reached
if the English courts reexamine the issue.(68)
Legislation in South Australia, Victoria, the Northern Territory and
the Australian Capital Territory confirms, to varying extents, the legal
validity of an adult patient's anticipatory refusal of medical treatment.
The statutes do this by recognising two different mechanisms that can
be used to express anticipatory refusals:
- 'advance directives', often referred to as 'living wills'(69) (recognised
by legislation in all four jurisdictions); and
- 'enduring powers of attorney' for the purposes of medical decision-making
(recognised by legislation in South Australia, Victoria and the Australian
Capital Territory only).
The advance directive provisions in these jurisdictions allow competent
adults to execute formal written directives specifying their wishes concerning
medical treatment.(70) These directives are legally binding on health
care professionals. The advance directive legislation in Victoria and
the Australian Capital Territory recognises a patient's anticipatory refusal
of treatment in a broad range of circumstances. The legislation in South
Australia and the Northern Territory only recognises advance directives
in relation to medical treatment during terminal illness and (in South
Australia only) persistent vegetative state, but allows a patient to express
anticipatory consent to specified treatment as well as recognising anticipatory
refusals of treatment.(71)
In South Australia, Victoria and the Australian Capital Territory there
are also legislative provisions enabling a competent adult ('the principal')
to execute an enduring power of attorney, under which the principal appoints
another adult ('an agent') to make decisions about the principal's medical
treatment in the event that the principal becomes incompetent. These decisions
can include the decision to refuse or consent to most kinds of medical
treatment, including life-sustaining medical treatment.
This enduring power of attorney legislation therefore provides another
legal mechanism for giving effect to a person's anticipatory refusal of
medical treatment. The legal recognition of such a refusal is more indirect
in this context, as the actual decision about medical treatment is made
by the agent rather than the principal. The enduring power of attorney
mechanism, however, enables the principal to appoint as agent someone
whom the principal knows and trusts to make decisions consistent with
the wishes and values of the principal. In addition, the enduring power
of attorney legislation does not empower the agent to make treatment decisions
that conflict with any directions given by the principal when competent,
provided those directions are contained in the enduring power of attorney
itself(72) or in a valid advance directive.(73) The enduring power of
attorney legislation therefore allows the previously expressed wishes
of competent adults to continue to have some influence over the kind of
treatment they receive, or do not receive, when they lose competence.
In Victoria, the Northern Territory and the Australian Capital Territory,
the relevant legislation expressly states that it does not affect any
right of a person under any other law to refuse medical treatment.(74)
This legislation therefore does not displace a competent adult's common
law right to refuse unwanted medical treatment. Thus it does not diminish
the common law right to give a binding contemporaneous refusal
of unwanted medical treatment in general, and life-sustaining medical
treatment in particular. Nor does the legislation displace a competent
adult's common law right to give a binding anticipatory refusal
of any kind of unwanted medical treatment, to the extent that such a right
may exist in Australia.
South Australia
South Australia was the first Australian jurisdiction to enact advance
directive legislation. The Natural Death Act 1983 (SA) provided
that:
- a person who had attained the age of 18 years and who was of sound
mind could make a direction refusing the application of 'extraordinary
measures' in the event of a terminal illness.(75)
- 'extraordinary measures' were defined as 'medical or surgical measures
that prolong life, or are intended to prolong life, by supplanting or
maintaining the operation of bodily functions that are temporarily or
permanently incapable of independent operation'.(76)
- 'terminal illness' was defined as any illness, injury or degeneration
of mental or physical faculties, such that death would be imminent if
extraordinary measures were not taken, and from which there is no reasonable
prospect of a temporary or permanent recovery even if extraordinary
measures were undertaken.(77)
- the direction was required to be written, in the form prescribed by
the legislation, and witnessed by two adults.(78)
- medical practitioners were under a legal duty to act in accordance
with the patient's direction.(79)
The Natural Death Act 1983 (SA) also specified that it did not
authorise 'an act that causes or accelerates death as distinct from an
act that permits the dying process to take its natural course.' (80) It
made clear, however, that for this and other legal purposes the non-application
or withdrawal of extraordinary measures from a terminally ill person did
not constitute a cause of death.(81)
The Natural Death Act 1983 (SA) recently was repealed and replaced
by the Consent to Medical Treatment and Palliative Care Act 1995
(SA), which was assented to on 27 April 1995 and came into effect on 30
November 1995.(82) The new legislation makes the following provision for
advance directives:
- a person who has attained the age of 18 years and who is of sound
mind can make a direction about the medical treatment that the person
wants, or does not want, if he or she is in the future:
- in the terminal phase of a terminal illness, or in a persistent
vegetative state, and
- incapable of making decisions about medical treatment when the
question of administering the treatment arises.(83)
- 'terminal illness' is defined as an illness or condition that is likely
to result in death. The 'terminal phase' of such an illness is defined
as 'the phase of the illness reached when there is no real prospect
of recovery or remission of symptoms (on either a permanent or temporary
basis)'.(84)
- the direction must be written, in the form prescribed by the legislation,
and witnessed by a justice of the peace, a proclaimed postmaster, a
proclaimed bank manager, a proclaimed member of the police force, a
commissioner for taking affidavits in the Supreme Court, a member of
the clergy, or a registered pharmacist.(85)
- if the person who made the direction is in the terminal phase of a
terminal illness or in a persistent vegetative state, and is incapable
of making decisions about his or her medical treatment, the direction
becomes operative - provided there is no reason to suppose that the
person has revoked, or intended to revoke, the direction. When the direction
becomes operative, the person is taken to have consented to medical
treatment that is in accordance with his or her wishes as expressed
in the direction. The person is taken to have refused medical treatment
that is contrary to his or her wishes as expressed in the direction.(86)
- a medical practitioner or other health care professional who complies
with such a direction is immune from civil and criminal liability in
respect of that compliance; provided that person has also behaved: in
good faith and without negligence; in accordance with proper professional
standards of medical practice; and in order to preserve or improve the
patient's quality of life.(87)
The Consent to Medical Treatment and Palliative Care Act 1995 (SA)
also introduces a new regime for appointing agents to make health care
decisions under enduring powers of attorney. This replaces the old regime
established under the Guardianship and Administration Act 1993
(SA). The new legislation provides that:
- a person who has attained the age of 18 years and is of sound mind
can execute a 'medical power of attorney', appointing an agent 'with
power to make decisions on his or her behalf about medical treatment'.(88)
- the medical power of attorney must be written in the form prescribed
by Schedule 1 of the legislation, or in a form to similar effect. It
must be witnessed by a justice of the peace, a proclaimed postmaster,
a proclaimed bank manager, a proclaimed member of the police force,
a commissioner for taking affidavits in the Supreme Court, a member
of the clergy, or a registered pharmacist.(89)
- the agent must be over 18 years of age.(90) The agent can be someone
who has an interest under the principal's will or in the estate of the
principal.(91) The agent cannot be a person who, in a professional or
administrative capacity, is responsible for or involved in the medical
treatment of the principal.(92)
- more than one agent may be appointed, but the medical power of attorney
must indicate the order of appointment and must not provide for joint
exercise of decision-making power by the agents.(93)
- a medical power of attorney authorises the agent to make decisions
about the medical treatment of the principal, if the principal is incapable
of making decisions on his or her own behalf. Those decisions must be
made in accordance with 'any lawful conditions and directions contained
in the power of attorney'.(94)
- if the principal has also given an anticipatory direction (under the
living will provisions of this legislation), the agent must make decisions
consistent with that direction.(95)
- medical power of attorney does not authorise the agent to refuse:
the 'natural' provision of food and water; the administration of drugs
to relieve pain or distress; or medical treatment that would result
in the principal regaining decision-making capacity, unless the principal
is in 'the terminal phase of a terminal illness'.(96)
- a medical practitioner or other health care professional who complies
with the instructions of an agent is immune from civil and criminal
liability in respect of that compliance; provided that person has also
behaved: in good faith and without negligence; in accordance with proper
professional standards of medical practice; and in order to preserve
or improve the patient's quality of life.(97)
The new legislation also clarifies the circumstances under which medical
practitioners must respect the anticipatory refusal of emergency treatment
- defined as treatment that is 'necessary to meet an imminent risk to
life or health' - by a patient who is now incapable of consenting to the
treatment. The relevant provisions include the following:
- a medical practitioner cannot administer emergency treatment to a
patient aged 16 years or over if he or she is aware that the patient
has refused to consent to the treatment.(98) This reflects the common
law position as stated in the English and Canadian case law in respect
of adult patients (aged 18 years and over).
- if the patient has appointed an agent under a medical power of attorney,
a medical practitioner cannot administer emergency treatment without
the agent's consent, provided the medical practitioner is aware of the
medical power of attorney and the agent is available to make the decision.(99)
Northern Territory
The Natural Death Act 1988 (NT) is based on the now-repealed
Natural Death Act 1983 (SA). The wording of the Northern Territory
legislation is virtually identical to that of the early South Australian
Act, allowing competent adult patients to make a written direction refusing
the application of 'extraordinary measures' in the event of a terminal
illness.(100)
The Northern Territory does not have legislation providing for the appointment
of an agent under an enduring power of attorney to make health care decisions.
Victoria
The advance directive provisions in Victoria are contained in the Medical
Treatment Act 1988 (Vic). These provisions aim to give effect to two
of the stated purposes of that legislation:
- to clarify the law relating to the right of patients to refuse medical
treatment; and
- to establish a procedure for clearly indicating a decision to refuse
medical treatment.(101)
Under the Medical Treatment Act 1988 (Vic):
- a 'refusal of treatment' certificate may be executed to express the
decision of a patient to refuse medical treatment generally, or to refuse
medical treatment of a particular kind.(102)
- the patient must be of sound mind and have attained the age of 18
years.(103)
- 'Medical treatment' is defined for these purposes as an operation,
the administration of a drug or other like substance, or any other medical
procedure. The definition of 'medical treatment' specifically excludes
palliative care, which is in turn defined to include 'the provision
of reasonable medical procedures for the relief of pain, suffering and
discomfort' or 'the reasonable provision of food and water.'(104)
- the patient's decision to refuse medical treatment may have been indicated
in writing, orally, or in any other way in which the patient can communicate.(105)
- the patient must be a person of sound mind who has attained the age
of 18 years.(106)
- the patient's refusal can only be a refusal of medical treatment 'for
a current condition'.(107)
- the refusal of treatment certificate must be in writing, in the form
prescribed in Schedule 1 of the legislation.(108)
- the refusal of treatment certificate must be witnessed by a medical
practitioner and another person. Both must be satisfied that the patient's
decision has been made voluntarily, and after the patient has received
and understood sufficient information about the consequences of the
refusal.(109)
- if a medical practitioner knowingly treats, or continues to treat,
a patient in contravention of a refusal of treatment certificate, the
medical practitioner commits the statutory offence of medical trespass.(110)
- a medical practitioner or other health care professional who refuses
to perform or continue medical treatment is immune from civil liability,
criminal liability and professional disciplinary action in respect of
that refusal, provided that person has acted in good faith and in reliance
on a refusal of treatment certificate.(111)
- the patient can cancel the refusal of treatment certificate at any
time by 'clearly expressing or indicating to a medical practitioner
or another person a decision to cancel the certificate'. The patient
can express or indicate this decision in writing, orally or in any other
way in which the person can communicate.(112)
- a refusal of treatment certificate is automatically cancelled if the
patient's medical condition has changed to such an extent that the condition
in relation to which the certificate applied is no longer current.(113)
The Medical Treatment Act 1988 (Vic) also contains enduring power
of attorney provisions, inserted by amending legislation in 1990 and 1992.(114)
These provisions aim to give effect to the third purpose of this legislation:
- to enable an agent to make decisions about medical treatment on behalf
of an incompetent person.(115)
The enduring power of attorney provisions have the following effect:
- a person who is of sound mind can execute an 'enduring power of attorney
(medical treatment)', appointing an agent to make decisions on his or
her behalf about medical treatment.
- the appointment of the agent only takes effect if the principal becomes
incompetent.(116)
- the enduring power of attorney (medical treatment) must be written
in the form prescribed by Schedule 2 of the legislation. It must be
witnessed by two people, one of whom must be a justice of the peace.(117)
- an 'alternate agent' may also be appointed in the manner specified
in the legislation. The alternate agent only gains the original agent's
power to make treatment decisions if that original agent dies, becomes
incompetent, disappears or cannot be contacted.(118)
- an enduring power of attorney (medical treatment) authorises the agent
to refuse medical treatment on behalf of the incompetent patient. The
agent may refuse medical treatment generally, or medical treatment of
a particular kind. The agent is not empowered to refuse palliative care.(119)
- the agent may only refuse medical treatment on behalf of the incompetent
patient if the medical treatment would cause the patient unreasonable
distress, or if there are reasonable grounds to believe that the patient
would (if competent) consider the medical treatment to be unwarranted.(120)
- if an agent refuses medical treatment on behalf of an incompetent
patient, a refusal of treatment certificate must be completed.(121)
- neither the execution of an enduring power of attorney (medical treatment),
nor its coming into operation when the patient becomes incompetent,
has the effect of cancelling a refusal of treatment certificate completed
while the patient was competent.
Australian Capital Territory
In 1993 Mr Michael Moore MLA introduced a Private Member's Bill, the
Voluntary and Natural Death Bill 1993, into the ACT Legislative
Assembly. The Bill aimed to make active voluntary euthanasia lawful in
specified circumstances. The Bill also contained provisions enabling a
competent adult to make an advance direction about the withholding or
withdrawal of medical treatment in the event that the person suffered
a terminal illness. It also contained medical powers of attorney provisions.
It was referred to a Select Committee on Euthanasia which concluded that
it was 'politically inopportune' to proceed with the Bill in its current
form,(122) and that the Legislative Assembly should instead consider passing
legislation relating to the withdrawal or withholding of medical treatment.
The Medical Treatment Act 1994 (ACT) was passed as a result.
The Medical Treatment Act 1994 (ACT) is modelled on the Medical
Treatment Act 1988 (Vic), but there are some differences between the
two statutes.
The advance directive provisions of the ACT legislation provide that:
- a person may make a 'direction' to refuse medical treatment, or for
the withdrawal of medical treatment generally, or medical treatment
of a particular kind.(123)
- the person must be of sound mind and have attained the age of 18 years.(124)
- 'Medical treatment' is defined for these purposes as the carrying
out of an operation, the administration of a drug, or the carrying out
of any other medical procedure.(125) The statutory right to refuse unwanted
medical treatment conferred by this legislation does not apply, however,
to palliative care.(126) 'Palliative care' is defined to include 'the
provision of reasonable medical procedures for the relief of pain, suffering
and discomfort' or 'the reasonable provision of food and water.'(127)
- the patient may make the direction in writing, orally, or in any other
way in which he or she can communicate.(128)
- a written direction is not valid unless it is made in accordance with
the form set out in the Schedule to the legislation. The form must be
signed by the person making the direction (or by someone else instructed
to do so by that person, and in that person's presence). The signature
must be witnessed by two other people.(129)
- a direction that is not written is not valid unless it is witnessed
by two health professionals present at the time the direction is made.
One of these must be a medical practitioner.(130)
- the patient's refusal can only be a refusal of medical treatment 'for
a current condition'.(131)
- a person can revoke his or her direction to refuse or withdraw medical
treatment at any time by 'clearly expressing to a health professional
or other person a decision to revoke the direction. This may be done
in writing, orally or in any other way in which the person can communicate'.(132)
- a direction automatically ceases to have effect if the person's medical
condition has changed to such an extent that the condition in relation
to which the direction applied is no longer current.(133)
- where the person who made the direction refusing medical treatment
is still competent, a health care professional must take a number of
steps before complying with a direction relating to that person's medical
treatment. First, the health care professional must take all reasonable
steps to ensure that the person has been informed about: the nature
of the illness; any alternative forms of treatment that may be available;
the consequences of those alternatives; and the consequences of remaining
untreated. Secondly, the health professional must then believe that
the person has understood this information, weighed the various options,
and concluded that the direction still expresses his or her wishes concerning
treatment.(134)
- a patient has a right to receive relief from pain and suffering 'to
the maximum extent that is reasonable in the circumstances'.(135) In
providing relief from pain and suffering, a health professional must
'pay due regard to the patient's account of his or her level of pain
and suffering'.(136)
- a health care professional who withholds or withdraws medical treatment
from a person is immune from civil liability, criminal liability and
professional disciplinary action in connection with the withholding
or withdrawal, provided the health care professional has acted in reliance
on a decision by the person that he or she believes on reasonable grounds
complies with this legislation.(137)
The Medical Treatment Act 1994 (ACT) also introduces a new regime
for appointing agents to make health care decisions under enduring powers
of attorney. This new regime enables the appointment of an agent who can
authorise the withholding or withdrawal of medical treatment in the event
that the principal becomes incompetent. The new enduring power of attorney
provisions provide the following:
- a person who is of sound mind and who has attained the age of 18 years
can confer on an agent the power to withhold or withdraw medical treatment
on the principal's behalf.(138)
- the agent is not entitled to exercise this power unless a medical
practitioner declares that the principal is incapacitated.(139)
- this power of attorney must be written in the form prescribed by Schedule
2 of the legislation. It must be signed by the principal (or by someone
else instructed to do so by the principal, and in the principal's presence).
The signature must be witnessed by two persons. Neither witness can
be the agent, nor a relative of the agent.(140)
- if the principal has made a direction under the advance directive
provisions of this legislation, and that direction is in force, the
agent may request that medical treatment be withheld or withdrawn from
the principal in accordance with that direction.(141)
- if the principal has not made such a direction, the agent cannot request
that medical treatment be withheld or withdrawn from the principal unless
the agent satisfies two conditions. First, the agent must consult a
medical practitioner about the nature of the principal's illness, about
any alternative forms of treatment and the consequences for the principal
of remaining untreated. Second, the agent must believe on reasonable
grounds that the principal would request that medical treatment be withheld
or withdrawn, if the principal had the capacity to make that decision
himself or herself.(142)
These new enduring power of attorney provisions in the Medical Treatment
Act 1994 (ACT) supplement and modify the old regime established in
1989 under legislation amending the Powers of Attorney Act 1956
(ACT).(143) Under that regime, a person has been able to execute an enduring
power of attorney allowing the agent to consent to medical treatment on
his or her behalf if the principal becomes incompetent. The principal
has been able to confer this power by completing the medical consent section
(Part C) of the standard power of attorney form.(144) The principal has
been able to specify restrictions in the power of attorney on the agent's
power to consent to medical treatment.(145)
Enduring powers of attorney relating to medical treatment can still
be created under the Powers of Attorney Act 1956 (ACT). The new
legislation provides, however, that an enduring power of attorney created
under the old regime can now empower the agent to consent to the withholding
or withdrawal of medical treatment.(146) If a person creates an enduring
power of attorney under the old legislative regime, however, any direction
or power of attorney that has been created under the Consent to Medical
Treatment Act 1994 (ACT) is revoked automatically.(147) Conversely,
if a person creates a direction or power of attorney under the Consent
to Medical Treatment Act 1994 (ACT), any enduring power of attorney
that has been made under the earlier legislation is revoked automatically,
to the extent that it applies to the withholding or withdrawal of medical
treatment.(148)
Tasmania
Tasmania does not have legislation recognising 'advance directives'
or 'enduring powers of attorney' empowering an agent to make health care
decisions.
Since 1985 the Tasmanian Greens have made a number of attempts to introduce
legislation modelled on the Medical Treatment Act 1988 (Vic). All
these attempts have failed. Most recently, in 1992 the proposed legislation
- the Medical Treatment and Natural Death Bill 1992 (Tas) - was
passed by the Lower House but subsequently rejected by the Upper House.(149)
Western Australia
Western Australia does not have legislation recognising 'advance directives'
or 'enduring powers of attorney' empowering an agent to make health care
decisions.
In 1991 the Western Australian Law Reform Commission recommended the
introduction of legislation broadly modelled on the Medical Treatment
Act 1988 (Vic).(150)
In May 1995 the Hon. Ian Taylor MP introduced the Medical Care of
the Dying Bill 1995 (WA). The long title of this Private Member's
Bill is 'An Act to affirm and protect the rights of terminally ill persons
to refuse unwanted medical treatment, to protect medical practitioners
and other health professionals and for related purposes'. The Bill had
its second reading speech in the WA Legislative Assembly on 24 May 1995.
The debate was adjourned. Mr Taylor has since resigned from Parliament.
The Bill lapsed, but the Hon. Judyth Watson restored it to the Notice
Paper. On 15 May 1996 it went to the Committee stage, and in early September
was still there.
New South Wales
New South Wales does not have legislation recognising 'advance directives'
or 'enduring powers of attorney' empowering an agent to make health care
decisions.
New South Wales does have guidelines on the management of patients with
terminal illnesses, which discuss advance directives as 'a means of indicating
to the Attending Medical Officer the patient's wishes'.(151) These guidelines
have no legal force.
Queensland
Queensland does not have legislation recognising 'advance directives'
or 'enduring powers of attorney' empowering an agent to make health care
decisions.
United States of America
The state of California in the United States of America was the first
place in the world to enact legislation to give legal effect to a patient's
anticipatory decision to refuse medical treatment. That legislation was
enacted in 1976.(152) It was a living will statute that obliged health
care professionals to respect a properly executed written directive refusing
life-sustaining medical treatment. The only patients who could use this
legislation were competent patients suffering from an incurable condition
and for whom death was 'imminent' at the time the directive was signed.(153)
Many other states followed the Californian lead and enacted similar
legislation. Over 40 jurisdictions in the United States of America now
have living will statutes.(154) These statutes all allow competent adults
to direct in advance that they do not wish to be kept alive by medical
treatment in the latter stages of a terminal illness. Most also allow
competent adults to direct that they do not wish to receive medical treatment
if they become permanently and irreversibly unconscious.
The first legislation establishing a mechanism for appointing an agent
to make health care decisions under an enduring power of attorney was
also enacted in California, in 1983.(155) Again, many other states enacted
similar statutes. Currently over 30 states have this kind of enduring
power of attorney legislation. Many states have legislation combining
living will provisions and enduring power of attorney provisions.(156)
In addition, 20 states have legislation giving a patient's family members
power to make decisions about the life-sustaining medical treatment of
a patient when the patient becomes incompetent and has not made an advance
directive.(157)
In 1990 the US Congress passed the Federal Patient Self-Determination
Act 1990. This legislation came into force in December 1991. It requires
all health care institutions receiving federal funding to inform all competent
adult patients at the time of their admission, and regardless of the reasons
for their admission, about their rights under state law to make an advance
directive.(158) The legislation also requires these institutions to record
whether the patient has made an advance directive.
United Kingdom
The United Kingdom does not have legislation recognising living wills.
There is legislation enabling an agent to be appointed under an enduring
power of attorney to make decisions if the principal becomes incompetent,(159)
but such an agent cannot make decisions about medical treatment.(160)
There have been two significant attempts to introduce legislation to
give advance directives legal force. Both attempts failed. In 1976 Baroness
Wootton of Abinger introduced a Private Member's Bill into the House of
Lords. The Incurable Patient's Bill sought 'to enlarge and declare
the rights of patients to be delivered from incurable suffering'. It contained
a clause designed to give legal effect to a limited kind of advance directive,
requiring that 'a written request by a patient to have his life prolonged
in the event of brain damage is to be regarded in that event as a current
refusal' of such treatment.(161) The Bill was defeated at its second reading
in the House of Lords by 85 votes to 23.
The most recent attempt to introduce legislation to recognise advance
directives was the introduction in 1993 of the Medical Treatment (Advance
Directives) Bill into the House of Lords. This Private Member's Bill
was introduced by Lord Allen of Abbeydale. The Bill had its first reading
speech in the House of Lords on 16 March 1993 but has since lapsed.
In 1993, after the House of Lords handed down its decision in the important
and controversial case Airedale NHS Trust v. Bland,(162) a Select
Committee was established to investigate the legal, ethical and social
issues surrounding medical treatment decisions at the end of life. More
specifically, the House of Lords Select Committee on Medical Ethics was
required to consider:
- the ethical, legal and clinical implications of a person's right to
withhold consent to life-prolonging treatment, and the position of persons
who are no longer able to give or withhold consent;
- whether, and in what circumstances, actions that have as their intention
or a likely consequence the shortening of another person's life may
be justified on the grounds that they accord with that person's wishes
or with that person's best interests; and
- in all the foregoing considerations to pay regard to the likely effects
of changes in law or medical practice on society as a whole.(163)
The Select Committee received written and oral evidence from a wide
range of interested individuals and organisations.(164) The report of
the Select Committee was published in January 1994. In this report, the
Select Committee 'strongly endorse[d] the right of the competent patient
to refuse consent to any medical treatment, for whatever reason.'(165)
The Select Committee also commended the development of advance directives,(166)
but concluded that 'legislation for advance directives is unnecessary'.(167)
It considered that' it could well be impossible to give advance directives
in general greater force without depriving patients of the benefit of
the doctor's professional expertise and of new treatments and procedures
which may have become available since the advance directive was signed'.(168)
It recommended instead that the colleges and faculties of all the health-care
professions should jointly develop a code of practice to guide their members,
the informing premise of which should be that advance directives 'must
be respected as an authoritative statement of the patient's wishes in
respect of treatment'.(169) The Select Committee additionally concluded
that it did 'not favour the more widespread development of a system of
proxy decision-making', which entailed an implicit rejection of any legislative
change allowing competent patients to appoint agents under enduring powers
of attorney to make health care decisions for the patient if he or she
became incompetent.(170)
The British Government issued a document responding to the recommendations
of the House of Lords Select Committee on Medical Ethics in May 1994.(171)
The Government agreed with the Select Committee's support for the right
of a competent patient to refuse to consent to any medical treatment.(172)
The Government also stated that it 'agrees generally' with the Select
Committee's conclusions about the value of advance directives.(173) It
agreed that the development of a professional code on advance directives
would be 'valuable'. It noted, however, that the Law Commissions of England/Wales
and Scotland were considering the issue of advance directives and that
any professional code would need to take account of any decisions made
by the Government in response to the Law Commissions' recommendations.(174)
In February 1995 the Law Commission (of England and Wales) issued its
report on the law relating to the way decisions may be made on behalf
of mentally incapacitated adults.(175) In this report, the Law Commission
recommended that legislation be introduced to:
- recognise a particular kind of advance directive (described as an
'advance refusal of treatment'); and
- enable the appointment of an agent under an enduring power of attorney
(described as a 'continuing power of attorney') to make health care
decisions in the event of the principal losing capacity to make those
decisions.
The Law Commission included draft legislation to give effect to its
recommendations, the Mental Incapacity Bill, as an appendix to
this report.
The Law Commission recommended that the legislation should specify that
a doctor does not have legal authority to administer medical treatment
to a 'mentally incapacitated person' if the person concerned has made
an 'advance refusal of treatment' that applies to the proposed treatment.
The Law Commission recommended that an 'advance refusal of treatment'
be defined for these purposes as 'a refusal by a person who has attained
the age of 18 and has the necessary capacity of any medical, surgical
or dental treatment or other procedure, being a refusal intended to have
effect at any subsequent time when he may be without capacity to give
or refuse his consent'.(176) The Law Commission's other recommendations
in relation to 'advance refusals of treatment' included:
- in the absence of any indication to the contrary, it should be presumed
that an advance refusal was validly made if it is in writing, signed
and witnessed.(177)
- in the absence of any indication to the contrary, it shall be presumed
that an advance refusal of treatment does not apply in circumstances
where those having the care of the person who made it consider that
the refusal (a) endangers that person's life or (b) if that person who
is a woman who is pregnant, the life of the foetus.(178)
- an advance refusal of treatment should not preclude the provision
of 'basic care', namely care to maintain bodily cleanliness and to alleviate
severe pain, as well as the provision of direct oral nutrition and hydration.(179)
- an advance refusal should not preclude the taking of any action necessary
to prevent the death of the maker, or a serious deterioration in his
or her condition, pending a decision of the court on the validity or
applicability of an advance refusal or on the question of whether it
has been withdrawn or altered.(180)
- No person should incur liability (1) for the consequences of withholding
any treatment or procedure, if he or she has reasonable grounds for
believing that an advance refusal of treatment applies; or (2) for carrying
out any treatment or procedure to which an advance refusal applies,
unless he or she knows or has reasonable grounds for believing that
an advance refusal applies.(181)
The Law Commission also recommended that a new form of power of attorney,
to be called a 'continuing power of attorney', should be introduced. Only
a person who had attained the age of 18 years would be able to create
a continuing power of attorney.(182) An agent appointed under a continuing
power of attorney would have authority to make and implement decisions
on behalf of the principal, which the principal is without capacity to
make.(183) These would include decisions about the health care of the
principal. The agent's powers to make such decisions would be subject
to certain specified restrictions.(184)
In January 1996 the Parliamentary Secretary of the Lord Chancellor's
Department made the following statement in Parliament:
The Government have considered the Law Commission report on
mental incapacity very carefully and are grateful on this subject. The
Government appreciate that this is an important and sensitive subject
raising moral and ethical issues on which many people will have strong
personal views.
The Government have decided not to legislate on the basis of the Law
Commission's proposals in their current form and have also concluded
that it would be inappropriate to make any proposals to Parliament in
the absence of full public consultation. The Government propose to issue
a consultation paper on mental incapacity in due course.
Canada
In 1992, two Canadian Provinces - Ontario and Manitoba - enacted legislation
giving legal effect to living wills and enabling the appointment of an
agent under an enduring power of attorney to make health care decisions.(185)
Enduring power of attorney legislation in Nova Scotia and Quebec allows
an agent to make health care decisions on behalf of the incompetent principal.(186)
Following the 1993 decision of the Supreme Court of Canada in the Rodriguez
case,(187) in February 1994 a Special Committee of the Senate of Canada
was set up to examine and report on the legal, social and ethical issues
relating to euthanasia and assisted suicide. The report of this Special
Committee - entitled Of Life and Death - was tabled on 6 June 1995.
The report's recommendations include the following:
- that those provinces and territories that do not have advance directive
legislation adopt such legislation.(188)
- that the provinces and territories establish a protocol to recognise
advance directives executed in other provinces and territories.(189)
- that the Federal Ministry of Health, in cooperation with the provinces
and territories, sponsor a national campaign designed to inform the
public as to their rights with respect to the refusal of life-sustaining
treatment.(190)
The common law determines whether a child can make his or her own decisions
about medical treatment everywhere in Australia except South Australia
and New South Wales. In those two States, statutory positions modify the
common law rules.
In contrast to its approach to adult patients, the common law is generally
less willing to recognise a child's right to make decisions about proposed
medical treatment.
At common law a child (a person under 18 years of age), unlike an adult,
is not presumed to be competent to consent to medical treatment. A child
will be competent to consent to a proposed treatment, however, if the
child possesses sufficient understanding and intelligence to enable the
child to understand fully what is proposed.(191) In such circumstances
a child has a common law right to consent to the proposed treatment.
It does not seem to be the case, however, that a child who is sufficiently
mature to consent to proposed medical treatment (and thus has a legal
right to do so) also has a concomitant right to refuse to consent to the
same treatment. Recent English cases have stated that any refusal of medical
treatment by a competent child can be overridden by the consent of the
child's parent or guardian.(192) This interpretation of the law has been
widely criticised,(193) and may not represent the common law position
in Australia.(194)
Even if it does not, it is clear in Australia that a court can use its
inherent jurisdiction to override a child's refusal of medical treatment
if it considers the refusal to be against the child's 'best interests'.
In deciding whether to do so, a court would give some weight to the child's
wishes. In situations where the refusal would not pose a serious risk
to the child's life or physical or mental health, and where the child
is older and more mature, a court would be more likely to uphold the child's
refusal.(195) In situations where the refusal relates to medical treatment
necessary to keep the child alive or to avert an imminent and serious
risk to the child's health, however, a court almost certainly would authorise
treatment against the child's wishes.
In New South Wales, the Minors (Property and Contracts) Act 1970
(NSW) allows a sufficiently mature child aged 14 years or above to consent
to medical treatment.(196) The legislation makes it clear, however, that
a competent child's refusal to consent to proposed medical treatment can
be overridden by the consent of a parent or guardian if the child is under
16 years of age.(197) In respect of competent children aged between 16
and 18 years, the legislation does not seem to affect the position at
common law. The law in New South Wales therefore may respect such a child's
refusal to consent to some or most kinds of medical treatment, but almost
certainly does not do so if the treatment is necessary to keep the child
alive.
The legal ability of a child to make decisions about medical treatment
in South Australia is determined by the Consent to Medical Treatment
and Palliative Care Act 1985 (SA). This new legislation repeals the
Consent to Medical and Dental Procedures Act 1985 (SA), section
6 of which specified when a person aged under 18 years could consent to
or refuse medical treatment.
One of the stated objects of the new Consent to Medical Treatment
and Palliative Care Act 1985 (SA) is to make reforms to the law in
South Australia 'to allow persons of or over the age of 16 years to decide
freely for themselves on an informed basis whether or not to undergo medical
treatment'.(198) This legislation therefore redefines 'child' to mean
a person under 16 years of age. It also provides that 'a person of over
16 years of age may make decisions about his or her own medical treatment
as validly and effectively as an adult'.(199)
This seems to mean that a doctor in South Australia must respect a refusal
of medical treatment by a competent person aged 16 years or over, including
the refusal of life-sustaining medical treatment. The legislation also
specifically requires a doctor to respect an anticipatory refusal of life-sustaining
medical treatment by a competent person aged 16 years of over, in emergency
situations where the patient cannot consent to the proposed treatment.(200)
The new South Australian legislation also provides that children aged
under 16 years may only offer a legally valid consent to medical treatment
if two doctors agree that the child is capable of understanding the nature,
consequences and risks of the treatment, and that the treatment is in
the best interest of the child's health and well-being. The refusal to
consent to proposed medical treatment by a child of that age can be overridden
by the consent of the child's parent or guardian.(201)
- J. Gould and Lord Craigmyle (eds), Your Death Warrant? , Geoffrey
Chapman Ltd, London, 1971, p 15.
- See M. Otlowski, Active Voluntary Euthanasia: A Timely Reappraisal,
University of Tasmania Law School, Hobart, 1992.
- I. Kennedy, 'The Quality of Mercy: Patient, Doctors and Dying', Upjohn
Lecture given at the Royal Society of Medicine, London, UK, 25 April
1994, p 1.
- J. Norberry, Euthanasia: Research Note No 12, Canberra, Department
of the Parliamentary Library, 1995.
- This was the blanket term used by Dutch researchers conducting empirical
investigations for the Remmelink Commission in 1990-1991. See P. Van
der Maas, J. Van Delden and L. Pijnenborg, 'Euthanasia and Other Medical
Decisions Concerning the End of Life - Volume 2' (1992) 22(2) Health
Policy (Special Issue), p xv.
- Gibbons v. Wright (1954) 91 CLR 423; Gillick v. West Norfolk
and Wisbech Area Health Authority [1986] AC 112; Re T (Adult:
Refusal of Treatment) [1992] 3 WLR 782; Re C (Refusal of Medical
Treatment) [1994] 1 FLR 31; R. Creyke, Who Can Decide? Legal
Decision-making for Others , Canberra, AGPS, 1995, p 267.
- Re C (Refusal of Medical Treatment) [1994] 1 FLR 31 (English
High Court) per Thorpe J; B v Croydon District Health Authority (1994)
22 BMLR 13 (English High Court) per Thorpe J. See A. Grubb, 'Refusal
of Treatment and the Competent Patient' (1994) 1 European Journal
of Health Law 367 at 370-1; Law Commission, Mental Incapacity:
-Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated
Adults, London, HMSO, 1995, para 3.15.
- Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782.
- Ibid.
- Trespass to the person includes battery, assault, and false imprisonment.
- Prosecution for the crime of battery is also possible, but very much
less likely as criminal prosecutions, let alone successful criminal
prosecutions, of doctors are extremely rare.
- J.G. Fleming, The Law of Torts (7th ed), Sydney, Law Book
Co., 1987.
- Blackstone's Commentaries (17th ed), 1830, vol. 3, p 120.
- (1914) 105 NE 92 at 93 (Court of Appeals of New York) per Cardozo
J.
- (1992) 175 CLR 218.
- Ibid at 233 per Mason CJ, Dawson, Toohey and Gaudron JJ.
- Ibid at 309-120 per McHugh J.
- Ibid at 234 per Mason CJ, Dawson, Toohey and Gaudron JJ.
- Ibid at 266 per Brennan J.
- Ibid at 268 per Brennan J.
- Ibid at 309 per McHugh J.
- Ibid at 311 per McHugh J.
- Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782 per Lord
Donaldson MR. Statements to similar effect were made in this case by
Butler-Sloss and Staughton LJJ.
- Airedale NHS Trust v. Bland [1993] 2 WLR 316 per Lords Keith,
Goff, Browne-Wilkinson and Mustill.
- Malette v. Shulman (1990) 67 DLR (4th) 321 per Robins JA.
- Nancy B v. Hôtel-Dieu de Québec (1992) 86 DLR
(4th) 385.
- Some US courts recognising the right to refuse life-sustaining medical
treatment have adopted only a common law analysis - e.g. In
re Storar (1981) 420 NE 2d 64 (New York Court of Appeals), In
re Conroy (1985) 486 A 2d 1209 (New Jersey Supreme Court); others
only a constitutional law analysis - e.g. In re Quinlan (1976)
355 A 2d 647 (New Jersey Supreme Court); and others have combined both
approaches - e.g. Superintendent of Belchertown State School
v. Saikewicz (1977) 370 NE 2d 417 (Supreme Judicial Court of Massachusetts).
For a summary of the approach in these and other relevant US cases,
see Cruzan v. Director, Missouri Health Department (1990) 487
US 261 at 269-277.
- Note that Australian courts have not articulated a 'state interests'
doctrine of this kind.
- e.g, Bouvia v. Superior Court (1986) 225 Cal Rptr 297 (California
Court of Appeal); Bartling v. Superior Court (1984) 209 Cal Rptr
2020 (California Court of Appeal); In re Farrell (1987) 529 A
2d 404 (New Jersey Supreme Court); McKay v Bergstedt (1990) 801
P 2d 617 (Nevada Supreme Court); Thor v. Superior Court (1993)
855 P 2d 375 (California Supreme Court). In Re Conroy (1985)
486 A 2d 1209 at 1225, the New Jersey Supreme Court stated the following:
On balance, the right to self-determination ordinarily outweighs
any countervailing state interests, and competent persons generally
are permitted to refuse medical treatment, even at the risk of death.
Most of the cases that have held otherwise, unless they involved the
interest in protecting innocent third parties, have concerned the
patient's competency to make a rational and considered choice.
- In an important case decided by the US Supreme Court in 1990 - Cruzan
v. Director, Missouri Department of Health (1990) 497 US 261 - five
of the nine Supreme Court Justices did affirm the existence of such
a right or, more correctly, 'constitutionally protected liberty interest'.
Only one of these judges, however, was part of the 5:4 majority on the
rather different issue that the Supreme Court was deciding in this case.
(That issue was whether a Missouri statute prescribing that life-sustaining
treatment, including artificial feeding and hydration, could not be
withdrawn from a legally incompetent patient without 'clear and convincing
evidence' that this is what the patient would have wanted in the circumstances,
contravened an individual's liberty interests under the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitution. The Supreme
Court held by a majority of 5:4 that this restriction did not
violate the Due Process Clause.) The other four majority judges did
not go this far. They affirmed the existence of a more limited liberty
interest under the U.S. Constitution in refusing life-sustaining hydration
and nutrition, and merely averted to the existence of a constitutionally
protected liberty interest in refusing any kind of unwanted medical
treatment.
- eg. Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782; Bouvia
v. Superior Court (1986) 225 Cal Rptr 297; McKay v. Bergstedt
(1990) 801 P 2d 617.
- eg, Bouvia v. Superior Court (1986) 225 Cal Rptr 297; Re
Conroy (1985) 486 A 2d 1209; McKay v. Bergstedt (1990) 801
P 2d 617; Airedale NHS Trust v. Bland [1993] 2 WLR 316 per Lord
Goff. Compare the approach of Scalia J in Cruzan v. Director, Missouri
Health Department (1990) 497 US 261.
As to whether a health care professional is entitled to administer
life-saving treatment against the wishes of a person who has attempted
suicide, see: I. Kennedy and A. Grubb, Medical Law: Text With Materials
(2nd ed), London, Butterworths, 1994, pp 336-7; In Re Kinney,
unreported, Supreme Court of Victoria (Fullagar J), 23 December 1988.
- Re T (Adult: Refusal of Medical Treatment) [1992] 3 WLR 782(English
Court of Appeal) per Lord Donaldson MR, Butler-Sloss and Staughton LJJ;
Airedale NHS Trust v. Bland [1993] 2 WLR 316 (English House of
Lords) per Lords Keith, Goff and Mustill; Re C (Adult: Refusal of
Treatment) [1994] 1 WLR 290 (English High Court) per Thorpe J;
Malette v. Shulman (1990) 67 DLR (4th) 321 (Ontario Court of Appeal)
per Robins JA. See A. Morris, 'Life and Death Decisions: 'Die, my dear
doctor? That's the last thing I shall do!'' (1996) 3 European Journal
of Health Law 9 at 9-13.
- See A. Grubb, supra note 7 at 367-370; I. Kennedy and A. Grubb,
supra note 32 at pp 1325-1334.
- Marshall v. Curry [1933] 3 DLR 260; Walker v. Bradley,
unreported, District Court of New South Wales (Kirkham J), 22 December
1993.
- This was the factual situation in the Canadian case Malette v.
Shulman (1990) 67 DLR (4th) 321. A doctor was held liable in battery
for administering blood transfusions to an unconscious adult patient
in a potentially life-threatening situation. He had been aware that
she was carrying a card stating that she was a Jehovah's Witness and
that she therefore did not wish to receive blood products under any
circumstances.
- For example, see Re C (Adult: Refusal of Treatment) [1994]
1 WLR 290. See A. Morris, supra note 33 at 24.
- In the USA people now often make tape recordings or video recordings
of their wishes about future medical treatment: see Law Commission,
supra note 7, para 5.29 n 67.
- Law Commission, supra note 7, para 5.29.
- See Law Commission supra note 7, para 5.23, citing in support
In re Estate of Dorone (1987) 534 A 2d 452; Werth v. Taylor
(1991) 475 NW 2d 426; In the Matter of Alice Hughes (1992)
611 A 2d 1148; Re T (Adult: Refusal of Treatment) [1992] 3 WLR
782.
- Law Commission, supra note 7, para 5.22.
- In re Eichner (1981) 420 NE 2d 64; In re Conroy (1985)
486 A 2d 1209 (New Jersey Supreme Court). Any constitutionally protected
right or liberty interest, upon which a competent adult's right to refuse
medical treatment may be grounded, may also survive the onset of incompetence:
In re Quinlan (1976) 355 A 2d 647 (New Jersey Supreme Court);
Superintendent of Belchertown State School v. Saikewicz (1977)
370 NE 2d 417 (Supreme Judicial Court of Massachusetts); Cruzan v.
Director, Missouri Health Department (1990) 497 US 261 (US Supreme
Court).
- The test was laid down by the New Jersey Supreme Court in In re
Conroy (1985) 486 A 2d 1209.
- Ibid.
- Ibid. That case also establishes that, if the 'subjective
test' cannot be applied (because the patient did not make his or her
wishes concerning future medical treatment sufficiently clear), life-sustaining
medical treatment nonetheless can be withdrawn from an incompetent patient
if either of two further tests are satisfied: the 'limited-objective'
test or the 'pure-objective' test.
- Cruzan v. Director, Missouri Health Department (1990) 497
US 261 at 284. Examples of such cases include In re Eichner (1981)
420 NE 2d 64 (New York Court of Appeals); Saunders v. State (1985)
492 NYS 2d 510 (New York Supreme Court);In re Peter (1987) A
2d 419l (New Jersey Supreme Court); In re Westchester County Medical
Center on Behalf of O'Connor (1988) 531 NE 2d 607 (Court of Appeals
of New York). Also note that the issue before the U.S. Supreme Court
in Cruzan was the constitutional validity of Missouri's legislative
requirement that an individual's wishes as to the withdrawal of life-sustaining
treatment be proved by 'clear and convincing evidence' before they could
be followed. Upholding the validity of such a requirement, the majority
of the Supreme Court also upheld the lower court's conclusion that Nancy
Cruzan's desire to have artificial hydration and nutrition withdrawn
in the current circumstances (she was in a persistent vegetative state
as the result of a car accident) has not been established to the standard
of 'clear and convincing evidence.' This evidentiary standard was not
satisfied by statements she had made to her housemate about a year before
her accident, at age 25, that she would not want to live should she
face life as a 'vegetable'. Neither these statements, nor other statements
she had made to a similar effect, averted to the withdrawal of medical
treatment or the withdrawal of artificial hydration and nutrition.
- See John F. Kennedy Memorial Hospital Inc v. Bludworth (1984)
452 So. 2d 921 (Florida Supreme Court); In re Conroy (1985) 486
A 2d 1209.
- In re Conroy (1985) 486 A 2d 1209; c.f In re Quinlan (1976)
355 A 2d 647.
- See below.
- e.g, Airedale NHS Trust v. Bland [1993] 2 WLR 316 per Lords
Keith, Lowry and Goff; In re Conroy (1985) 486 A 2d 1209;Bouvia
v. Superior Court (1986) 225 Cal Rptr 297; Thor v. Superior Court
(1993) 855 P 2d 375. Any legal distinction between artificial hydration
and water and other forms of medical treatment was also rejected by
O'Connor, Brennan, Marshall and Blackmun JJ of the US Supreme Court
in Cruzan v. Director, Missouri Department of Health (1990) 497
US 261.
- See generally Law Commission, supra note 7, para 5.34; A.
Morris, supra note 33 at 17-18.
- See Leigh v Gladstone (1909) 26 TLR 139; A-G of British
Columbia v. Astaforoff [183] 6 WWR 332 and [1984] 4 WWR 385; Airedale
NHS Trust v. Bland [1993] 2 WLR 316 per Lord Keith; P. Skegg, Law,
Ethics and Medicine, Oxford, Clarendon Press, 1984, pp 113-4; I.
Kennedy and A. Grubb, supra note 32, pp 334-6 and 1229-1230;
Secretary of State for the Home Department v. Robb [1995] 1 All
ER, discussed in (1995) 3 Medical Law Review 189; Schneidas
v. Corrective Services Commission, unreported, NSW Supreme Court
(Lee J),8 April 1993; Department of Immigration v. Mok, unreported,
NSW Supreme Court (Powell J), 30 September 1992.
- I. Kennedy and A. Grubb, supra note 32, p 1277.
- Law Commission, supra note 7, para 5.34.
- The Medical Protection Association of Australia, the Royal Australian
College of Obstetricians and Gynaecologists, the National Association
of Specialist Obstetricians and Gynaecologists, and the Australian College
of Paediatrics.
- J. Seymour, Fetal Welfare and the Law, Canberra, Australian
Medical Association, April 1995, p 104.
- Ibid pp 104-5.
- Paton v British Pregnancy Advisory Services Trustees [1979]
1 QB 276; C v. S [1988] 1 QB 135; K v. T (1983) 1 Qd R
396;Attorney-General (Qld) (ex rel Kerr) v. T (1983) 46 ALR 275;
F v. F (1989) 13 Fam LR 189. This principle is also recognised
in cases imposing civil or criminal liability in respect of behaviour
occurring before the birth of the plaintiff or victim: eg Burton
v Islington Health Authority [1992] 3 All ER 833; De Martell
v. Merton and Sutton Health Authority [1992] 3 All ER 833; Watt
v. Rama [1972] VR 353; Lynch v. Lynch (By Her Tutor Lynch) (1991)
25 NSWLR 411; Kosky v. The Trustees of the Sisters of Charity [1982]
VR 961; X & Y (By Her Tutor X) v. Pal and Others (1991) 23
NSWLR 26; Attorney-General's Reference (No. 3 of 1994)[1996]
3 WLR 412; R v. Martin, unreported, WA Court of Criminal Appeal,
4 April 1996.
- Re F (In Utero) [1988] Fam 122.
- Paton v British Pregnancy Advisory Services Trustees [1979]
1 QB 276; C v. S [1988] 1 QB 135; Attorney-General (Qld) (ex
rel Kerr) v. T (1983) 46 ALR 275; F v. F (1989) 13 Fam LR
189.
- e.g. Raleigh Fitkin - Paul Morgan Memorial Hospital v. Anderson
(1964) 201 A ed 537 (New Jersey Sup Ct); Jefferson v. Griffin
Spalding County Hospital Authority (1981) 274 SE 2d 457 (Georgia
Sup Ct); In the Matter of the Application of Jamaica Hospital (1985)
491 NYS 2d 898 (New York Sup Ct); Crouse Irving Memorial Hospital
Inc v. Paddock (1985) 485 NYS 2d 443 (New York Sup Ct). In these
cases, the courts considered that the pregnant patient's right to bodily
integrity was outweighed by the state's interest in the protection of
third parties (in this case, foetuses).
- In Re AC (1990) 573 A 2d 1235.
- Ibid at 1237.
- Ibid at 1237. See further I. Kennedy and A. Grubb, supra
note 32, pp 350-358; J. Seymour, supra note 56, pp 77-79.
- Re 'Baby R' (1988) 15 RFL (3d) 225; Re A (In Utero) (1990)
72 DLR (4th) 722.
- Re S (Adult: Refusal of Treatment) [1992] 4 All ER 671 per
Sir Stephen Brown P.
- See A. Grubb, supra note 7 at 371-3; K. Stern, 'Court-Ordered
Caesarean Sections: In Whose Interests?' (1993) 56 Modern Law Review
238; M. Thomson, 'After Re S' (1994) 2 Medical Law Review
127. See further N. Rhoden, 'The Judge in the Delivery Room: the
Emergency of Court-Ordered Caesareans' (1986) 74 California Law Review
1951. For a useful analysis of the relevant case law in England,
the United States and Canada, see J. Seymour, supra note 7, Chapter
7.
- Also note that clause 9(3) of the English Law Commission's Draft
Mental Incapacity Bill (discussed further below) would enable a
pregnant woman to express a binding anticipatory refusal of treatment,
including treatment necessary to preserve her life or the life of the
foetus. The Law Commission commented on this issue as follows:
We do not ... accept that a woman's right to determine the sorts
of bodily interference which she will tolerate somehow evaporates
as soon as she becomes pregnant. There can, on the other hand, be
no objection to acknowledging that many women do in fact alter their
views as to the interventions they find acceptable as a direct result
of the fact that they are carrying a child. By analogy with cases
where life might be needlessly shortened or lost, it appears that
a refusal which did not mention the possibility that the life of a
foetus might be endangered would be likely to be found not to apply
in circumstances where a treatment intended to save the life of the
foetus was proposed. Women of child-bearing age should therefore be
aware that they should address their minds to this possibility if
they wish to make advance refusals of treatment.
(Law Commission, supra note 7, para 5.25 and p 226. See also
A. Morris, supra note 33 at 16-17.
- Lord Allen of Abbeydale of the English House of Lords has criticised
the phrase 'living will' as reflecting an American gift for 'phrases
which defy intellectual analysis': Hansard (House of Lords),
9 May 1994, vol 554, col 1363.
- The legislation in the ACT also allows competent adults to make appropriately
witnessed oral directives. See discussion below.
- For further discussion of the legal status of advance directives
in Australia, see: R. Creyke, supra note 6, pp 275-7,
281-2 (ACT), 286 (NSW), 287-8 (NT), 291 (Qld), 294-5 (SA - repealed
legislation), 296 (Tas), 299-300 (Vic), 301 (WA); and D. Lanham and
B. Fehlberg, 'Living Wills and the Right to Die With Dignity' (1991)
18 Melbourne University Law Review 329 (focusing on repealed
SA legislation); D. Mendelson, 'Medico-Legal Aspects of the 'Right to
Die' Legislation in Australia' (1993) 19 Melbourne University Law
Review 112.
- The prescribed forms for appointing an agent to make medical decisions
in both South Australia and the Australian Capital Territory provide
that the principal may specify restrictions on the scope of the agent's
power. The prescribed form in Victoria does not explicitly allow this.
- The creation or activation of an enduring power of attorney does
not have the effect of revoking a pre-existing direction made under
the advance directive legislative provisions, except in some circumstances
in the ACT (see discussion below).
- Medical Treatment Act 1988 (Vic), section 4(1), Natural
Death Act 1988 (NT), section 5(1), Medical Treatment Act 1994
(ACT), section 5(1). A similar provision was contained in the Natural
Death Act 1983 (SA), but the new Consent to Medical Treatment
and Palliative Care Act 1995 (SA) does not contain such a provision.
- Section 4(1).
- Section 3.
- Section 3.
- Sections 4(1) and 4(2).
- Section 4(3).
- Section 7(2).
- Section 6(1).
- With the exception of section 14, which came into effect on 30 May
1996. Regulations made under the Act - the Consent to Medical Treatment
and Palliative Care Regulations 1996 (SA) - also came into effect
on 30 May 1996.
- Section 7(1).
- Section 4.
- Sections 7(2) and 4.
- Section 7(3).
- Section 16.
- Section 8(1).
- Section 8(2).
- Section 8(3).
- Section 8(4).
- Section 8(5).
- Section 8(6).
- Sections 8(7)(a) and 8(8)(a).
- Section 8(8)(b).
- Section 8(7)(b).
- Section 16.
- Section 13(1)(b).
- Section 13(3).
- See discussion above.
- Section 1.
- Section 5(1)(a).
- Section 5(1)(d).
- Section 3.
- Section 5(3).
- Section 5(1)(d).
- Section 5(1)(a).
- Section 5(2).
- Sections 5(1)(b) and (c).
- Section 6.
- Section 9.
- Sections 7(1) and (2).
- Section 7(3).
- The Medical Treatment (Enduring Power of Attorney) Act 1990
(Vic) and the Medical Treatment (Agents) Act 1992 (Vic), respectively.
- Section 1.
- Section 5A(2)(b).
- Section 5A(2)(a).
- Section 5AA.
- Section 5B(1).
- Section 5B(2).
- Section 5B(3).
- See J. Norberry, supra note 4; ACT Legislative Assembly, Select
Committee on Euthanasia, Report: Voluntary and Natural Death Bill
1993, March 1994.
- Section 6.
- Section 6.
- Section 3.
- Section 5(2).
- Section 4.
- Section 6.
- Section 7.
- Section 8.
- Section 6.
- Section 9.
- Section 10.
- Section 11.
- This right is included to further the second of the two stated objectives
of the Medical Treatment Act 1994 (ACT). These objectives are
set out in section 4:
to protect the right of patients to refuse unwanted medical treatment;
and
to ensure the right of patients to receive relief from pain and
suffering to the maximum extent that is reasonable in the circumstances.
- Section 23.
- Section 22.
- Section 13(1).
- Section 14.
- Section 13(2).
- Section 16(2).
- Section 16(1).
- Powers of Attorney (Amendment) Act 1989 (ACT).
- Powers of Attorney Act 1956 (ACT), section 13, Sch Form 2
Part C.
- See further R. Creyke, supra note 6, pp 278-9.
- Sections 26 and 27.
- Section 18(3).
- Section 18(4).
- G. Griffith and M. Swain, Euthanasia; - Volume 1: Text , Sydney,
NSW Parliamentary Library Research Service, July 1995, p 34.
- Ibid, p 25; Law Reform Commission of Western Australia, Report
on Medical Treatment for the Dying, February 1991.
- NSW Health Department, Dying With Dignity - Interim Guidelines
on Management, State Health Publication No (HPA) 93:33, 1 March
1993, para 5(e).
- The Natural Death Act 1976 (California); subsequently amended
and currently California Health and Safety Code, sections 7185-7194.5.
- For critical discussion of this early legislation, see President's
Commission for the Study of Ethical Problems in Medicine and Biomedical
and Behavioural Research, Deciding to Forego Life-Sustaining Treatment,
US Government Printing Office, 1983, pp 141-145.
- Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware,
District of Columbia, Florida, Georgia, Hawaii, Illinios, Indiana, Iowa,
Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri,
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New
York, North Dakota, Ohio, Okalahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington,
West Virginia, Wisconsin, and Wyoming.
- The Durable Power of Attorney Health Care Act 1983 (California);
currently California Civil Code, sections 2430 - 2445.
- I. Kennedy and A. Grubb, supra note 32, p 1338.
- Ibid.
- c.f. British Medical Association, Code of Practice on Advance
Statements About Medical Treatment, London, BMJ, 1995 para 6.4,
recommending against raising the issue of anticipatory decisions about
medical treatment at the time of admission to hospital on the basis
that this is an inherently stressful time for a patient.
- Enduring Powers of Attorney Act 1985 (UK).
- See I. Kennedy and A. Grubb, supra note 32, p 1340.
- Incurable Patient's Bill 1976 (UK), clause 3. Clause 1 of
the Bill provided that an incurable patient is to be entitled to have
pain and distress fully relieved by medical care, even if unconsciousness
results. Clause 2 of the Bill provided that an incurable patient is
to be entitled to take steps that may cause his own death ie physician
assisted suicide.
- [1993] 2 WLR 316. In this case, the House of Lords authorised the
withdrawal of artificial hydration and nutrition from Anthony Bland,
a patient who had been in a persistent vegetative state since being
injured in the Hillsborough disaster in 1989.
- House of Lords, Report of the Select Committee on Medical Ethics:
Volume 1 - Report, London, HMSO, January 1994, p 7.
- See ibid, pp 3-6.
- Ibid, paras 234 and 279.
- Ibid, paras 263 and 296. The Select Committee preferred the
term 'advance directive' to the term 'living will.' It defined 'advance
directive' to mean 'a document executed while a patient is competent,
concerning his or her preferences about medical treatment in the event
of becoming incompetent. The document may specify the types of treatment
which the patient would or would not find acceptable in certain circumstances':
para 27.
- Ibid, paras 264 and 296.
- Ibid, para 264.
- Ibid, paras 265-7 and 297.
- Ibis, paras 271 and 298.
- Government Response to the Report of the Select Committee on Medical
Ethics, Cm 2552, London, HMSO, May 1994.
- Ibid, p 1.
- Ibid, p 5.
- Ibid, pp 5-6.
- Law Commission, supra note 7, The Law Commission, Mental
Incapacity: -Item 9 of the Fourth Programme of Law Reform: Mentally
Incapacitated Adults, London, HMSO, 28 February 1995.
- Ibid, paras 5.16 and 11.25; Mental Incapacity Bill,
clause 9(1).
- Ibid, paras 5.29-5.30 and 11.29; Mental Incapacity Bill,
clause 9(5).
- Ibid, paras 5.23-5.26; Mental Incapacity Bill, clause
9(3).
- Ibid, paras 5.34 and 11.31; Mental Incapacity Bill, clauses
9(7)(a) and (8).
- Ibid, paras 5.36 and 11.33; Mental Incapacity Bill,
clause 9(7)(b).
- Ibid, paras 5.27 and 11.28; Mental Incapacity Bill,
clause 9(4).
- Ibid, paras 7.20 and 11.62; Mental Incapacity Bill,
clause 14(1).
- Ibid, paras 7.1-7.6 and 11.51; Mental Incapacity Bill,
clauses 12(1) and (2).
- For more detail, see ibid, paras 11.51-11.83 and refere
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