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Report No. 196

What the NSW 'interim guidelines' say is as follows:

(a) the patient has a right to refuse treatment.

(b) If the patient cannot take part in the decisions, then his or her advocate should be involved.

(c) The contents in advance directive should be taken into account.

(d) Where there is a request for continuation of medically futile treatment, the Attending Medical Officer should consider the request in the context of the overall management plan and the best interests of the patient at that time.

(e) Where the patient is not capable of involvement and no advocate or advance-directive has been arranged, any views that the patient was known to hold, should be taken into consideration; and

(f) If the patients' views are not known to anyone, then decisions should be made at the discretion of the Attending Medical Officer, after consultation with the family, in the best interests of the patient.

As to Advance Directives, legislation in South Australia, Victoria and the Northern Territory and Australian Capital Territory confirm, in varying extents, the legal validity of an adult patient's anticipatory refusal of medical treatment. The statutes do them by recognizing two different mechanisms that can be used to express anticipatory refusals:

(i) 'advance directives', often referred to as 'living wills' (recognized by legislation in all the above four jurisdictions); and

(ii) 'enduring powers of attorney' for the purpose of medical decision making (recognized 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. (The legislation in the AC Territory also allows competent adults to make appropriately witnesses oral directives). These directives are binding on health care professionals. The advance directive legislation in Victoria and the AC Territory recognizes a patient's anticipatory refusal of treatment in a broad range of circumstances.

The legislation in South Australia and the Northern Territory only recognizes advance directives in relation to medical treatment during terminal illness and in South Australia during persistent vegetative state, but allows a patient to express anticipatory consent to specified treatment as well as recognizing anticipatory refusals of treatment.

In South Australia, Victoria and AC Territory, there are also legislative provisions enabling a competent adult (principal) to execute an enduring power of attorney, under which the principal appoints another adult (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.

In Victoria, NT and AC Territory, the relevant legislation expressly states that it does not affect any right of a person under any other law to refuse medical treatment. It thus preserves the common law right.

The South Australia law on advance directives is in the Natural Death Act, 1983 (SA). It stated that it did not authorize 'an act that causes or accelerates death as distinct from an act that permits the dying process to take its natural course'. This Act was repealed and replaced in 1995 by the Consent to Medical Treatment and Palliative Care Act 1995 (SA) (w.e.f. 30.11.95).

That deals with advance directives more exhaustively and also states that a medical practitioner or health care professional who complies with such a directive is immune from civil and criminal liability in respect of that compliance; provided that the person has also behaved in good faith and without negligence; and in accordance with proper professional standards of medical practice and in order to preserve or improve the patient's quality of life.

The 1995 Act also introduces a regime of appointing agents to take decisions and provides similar immunity to doctors as stated above.

The Northern Territory Act 1988 is virtually identical with the South Australia Act, 1995. It does not provide for 'agents'.

Victoria directive provisions are contained in Medical Treatment Act, 1988 (vic) also deals with advance directive and provides for immunity of doctors from civil or criminal liability or professional disciplinary action. The Act also contains enduring power of attorney provisions.

Australia Capital Territory passed the Medical Treatment Act, 1994 (ACT) and is modelled on the Victoria statute of 1988. It contains also provisions for appointing agents.

Tasmania does not have any legislation for 'advance directives'. Similarly, Western Australia, New South Wales, Queensland, do not have an such law.

There have been no criminal prosecution of doctors in Australia in relation to their administration of pain relieving drugs that have hastened death. There is case law as in England which declares particular action of a doctor as lawful. Jurists have stated that a doctor may be criminally liable if he had knowledge that the patient may die as a result of the drugs administered for relieving pain if the drugs hastened the patient's death.

The limited statutory clarification is recommended by the Law Reform Commission of Western Australia that legislation be introduced to protect doctors from liability for administering drugs or other treatment for the purpose of controlling pain, even though the drugs or other treatment may incidentally shorten the patient's life provided that the consent of the patient is obtained and that the administration is reasonable in all the circumstances (see Report on Medical Treatment of the Dying, Feb. 1991, of the Law Reform Commission of Western Australia, pp. 25-27). No such legislation has, however, been enacted in Western Australia.

Only South Australia has statutory provisions that classify the law on the issue. The provisions reflect the English legal rules and the primary initiative of the doctor to relieve pain. section 17(1) of the Consent to Medical Treatment and Palliative Care Act, 1995 (SA) applies to the situation where a doctor or other health care professionals, acting under a doctor's supervision, administers medical treatment 'with the intention of relieving pain or distress', even though 'an incidental effect of the treatment is to hasten the death of the patient'. This section provides that the doctor or other healthcare professional will incur no civil or criminal liability in this situation provided he or she acts:

(a) with the consent of the patient or the patient's representative; and

(b) in good faith and without negligence; and

(c) in accordance with proper professional standards of palliative care.

It also provides that the administration of medical treatment for the relief of pain or distress in accordance with these conditions 'does not constitute an intervening cause of death' for purposes of the law in S.A. law.

It may also be noted that medical treatment with intention of ending patient's life and indirectly authorize 'active voluntary euthanasia'.

In Australia, attempted suicides are not an offence. But the criminal law prohibits physician-assisted suicide and makes a doctor criminally liable. Only in Northern Territory, physical assisted suicide was permitted under the Rights of the Terminally Ill Act, 1995 (NT) but as stated earlier, the federal legislation declared in 1997 (under section 122 of the Australian Constitution) that the State Legislature had no power to pass the above law.

In Australia, the law prohibits voluntary euthanasia except in NT during the time when the 1995 Act was in force.

(The above material as to the law in Australia is gathered from two exhaustive Research Papers 3 and 4 by Ms Natash Lica, Consultant, Law and Public Administration Group, on Passive Voluntary Euthanasia (Part 1) and Active Voluntary Euthanasia (Part 2) and are available on the website of Parliamentary Library of Australia.

In Victoria, the Medical Treatment Act, 1988 (Vic) provides that its operation 'does not affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care'. The definition of 'palliative care' includes 'the provision of reasonable medical procedures for the relief of pain, suffering and discomfort'. The Victorian law does not expressly provide for immunity from civil or criminal law.

The Natural Death Act, 1988 (NT) is also unhelpful in not providing immunity. It provides that its operation 'does not affect the legal consequences (if any) of taking therapeutic measures (not being extraordinary measures) in the case of a patient who is suffering from a terminal illness whether or not the patient has made a directive under the Act'. 'Therapeutic measures' are not defined. The Act in its Medical Treatment Act, 1994 (ACT) does not also provide any immunity.

Queensland passed the Criminal Code Act 1995 (Qld) which provides in section 82 that a person is absolved from criminal responsibility for providing 'medical treatment' (defined as including pain relief) when it is provided 'in good faith and with reasonable care and skill' for the patient's benefit and is 'reasonable, having regard to the patient's state at the time of and all the circumstances'. The section is loosely worded and may authorize 'shorter life' in circumstances not fully within the 'exceptions' stated in English law. Further, the words 'doctor or any other person' can create problems.

Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners) Back

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