End of Life Law in Australia

Glossary

This glossary contains definitions for terms and legal concepts frequently referred to on this website, as well as terminology commonly used in the law at end of life.

Advance directive

An instruction that a person makes about their future medical treatment or health care in the event he or she loses capacity to make decisions. An advance directive, sometimes called a 'living will', may also be referred to as an ‘advance health directive’, ‘advance care directive’, ‘Refusal of Treatment Certificate’, ‘advance personal plan’ and ‘health direction’ in different Australian States and Territories.

Assisted suicide

The act of intentionally killing oneself with the assistance of another who provides the knowledge or means to do it. For example, where a friend or relative obtains a lethal drug and provides it to another person to use to commit suicide.

Capacity (or competence)

This definition differs between Australia’s States and Territories. At common law, a person has capacity (or is competent) if they are able to:

  • comprehend and retain the information needed to make the decision, including the consequences of the decision; and
  • use and weigh that information as part of their decision-making process.
Common law

The law developed by judges when making decisions in court. These decisions are relied upon by other judges when making decisions in later cases.

Common law advance directives

Advance directives created and governed by the common law (i.e. decisions made by the courts), not legislation.

Competent

See ‘Capacity’ above.

Consent

Generally, for a person to provide valid consent to medical treatment, he or she must have:

  • the capacity to make treatment decisions;
  • the consent must be free and voluntary; and
  • the consent must cover the act to be performed.

A voluntary decision is one that is freely made by the person in response to an understanding of the treatment options. There must be no undue pressure, coercion or manipulation.

Death

Irreversible cessation of all function of the brain (‘brain death’) or irreversible cessation of circulation of blood (‘circulatory death’ or ‘cardiac death’).

Deceased donor

A human being declared to be dead and from whom cells, tissues or organs were or will be recovered for the purpose of transplantation.

(This definition is taken from the WHO Global Glossary of Terms and Definitions on Donation and Transplantation, 2009, p 9)

Doctrine of Double Effect

A doctrine based on moral philosophy, used in the context of palliative care, which recognises that medication may be given (usually by a health professional) to a person to relieve pain (the good effect), even if it hastens the person’s death (the bad effect).

Euthanasia

Euthanasia is a deliberate, intentional act of one person to end the life of another person in order to relieve that person’s suffering. For example, a doctor injects a patient with a lethal substance to relieve that person from unbearable physical pain.

The term euthanasia is often used in different ways. Three of the most common are:

  • Voluntary euthanasia: Euthanasia is performed at the request of the person whose life is ended, and that person is competent. For example, a doctor injects a competent patient, at their request, with a lethal substance to relieve that person from unbearable physical pain.
  • Non-voluntary euthanasia: Euthanasia is performed and the person is not competent. For example, a doctor injects a patient in a post-coma unresponsive state (sometimes referred to as a persistent vegetative state) with a lethal substance.
  • Involuntary euthanasia: Euthanasia is performed and the person is competent but has not expressed the wish to die or has expressed a wish that he or she does not die. For example, a doctor injects a competent patient who is in the terminal stage of a terminal illness such as cancer with a lethal substance without that person’s request.
Futile treatment

Whether treatment is ‘futile’ is difficult to decide. Some have argued that treatment may be futile if:

  • It does not benefit the person.
  • It cannot achieve its medical purpose or is not clinically indicated (ie cardiopulmonary resuscitation (CPR) being provided to someone who is unlikely to respond to the resuscitation).
  • It is not in the person’s best interests when examining the person’s quality of life.

Such treatment may also be referred to as ‘potentially inappropriate treatment’.

Gillick-competent

A term used to define a child (person under 18) who has capacity to make decisions about his or her own health care and treatment, without the need for parental decision-making. A child is Gillick-competent for a health care decision if they achieve 'sufficient understanding and intelligence to enable him or her to understand fully what is proposed'.

Good medical practice

In Queensland, this is defined by the medical profession in Australia having regard to their –
(a) recognised medical standards, practices and procedures; and
(b) recognised ethical standards.

See the Powers of Attorney Act 1998 (Qld) sch 2, s 5B; Guardianship and Administration Act 2000 (Qld) s5B.

See also the Medical Board of Australia’s Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014).

Guardian (health care)

A person with the right, powers and duty to protect and make health care decisions for another person who is incompetent or otherwise unable to make his or her own health care decisions.

Guardianship laws

These laws exist in each Australian State and Territory and provide a substitute decision-making framework where a person or body (such as the Public Guardian or a court or tribunal) can make decisions about health care and medical treatment for a person who has impaired decision-making capacity and is unable to make decisions themselves.

Impaired capacity (incompetent)

A person has impaired capacity if they are not capable of understanding information, balancing and weighing that information, and then being able to come to a decision. In the health care context this information includes the proposed treatment, alternatives to the treatment, and the consequences of the proposed and alternative treatment options.

Involuntary euthanasia

See ‘Euthanasia' above.

Legislation

Law made by the elected members of Parliament. Also referred to as a ‘statute’ or an ‘Act’.

Life-sustaining treatment

Medical treatment that is required to keep a person alive. It includes cardiopulmonary resuscitation, assisted ventilation, artificial nutrition and hydration, blood transfusions and the provision of antibiotics. In some cases chemotherapy and other medical procedures such as transplantation or amputations may constitute life-sustaining treatment.

Manslaughter

The unlawful killing of another in circumstances where an intention to kill cannot be proved, or there are mitigating circumstances. Manslaughter can be either voluntary (i.e. the accused intended to and caused the murder but there are mitigating factors justifying a reduced charge) or involuntary (the accused did not intend to murder but caused an unlawful death).

Murder

The intentional killing of another, or where the person knows that death or serious bodily harm would be a likely consequence of his or her actions.

Necessaries of life

A term that encompasses basic provisions necessary to sustain the life of a person, such as food, drink, shelter and medical care.

Non-voluntary euthanasia

See ‘Euthanasia’ above.

Palliative care

An act or omission, medical procedure or other measure to maintain or improve the comfort of a person who is, or otherwise would be, subject to pain and suffering.

Some definitions in legislation also refer to palliative care as the relief of pain, suffering and discomfort.

Parens patriae

The Supreme Court’s ‘welfare’ or ‘protective’ jurisdiction whereby that court may act on behalf of a person unable to manage their own affairs, such as children and people with impaired capacity, in order to protect their interests.

Physician-assisted suicide

Where a health professional assists a person, on the person’s request, to commit suicide. For example, where a doctor provides a person with a prescription to obtain a lethal dose of drugs.

Public Guardian/Public Advocate

An independent statutory officer, appointed by government, with responsibility to protect the rights and interests of people with impaired decision-making capacity. Each Australian State and Territory has a Public Guardian or Public Advocate who may, among other powers, act as the guardian of an adult with impaired capacity, where no one else is available or willing to act as guardian.

Statutory advance directives

Advance directives governed by specific legislation in all States and Territories except for New South Wales and Tasmania (which do not have statutory advance directives).

Substitute decision-maker

A person who is lawfully able to make health care and medical treatment decisions on behalf of a person with impaired decision-making capacity.

Each Australian State and Territory has different substitute decision-makers. These may include guardians, enduring guardians, attorneys, enduring attorneys, medical agents, a person responsible, health attorney and default decision-makers.

Substitute decision-making

The process of one person, a substitute decision-maker, making decisions about matters such as the health care, medical treatment or personal affairs of a person with impaired decision-making. It involves the substitute decision-maker ‘standing in the shoes’ of the person, to try to make the decision the person would have made if they had the capacity to do so themselves.

Suicide

The intentional act of killing oneself.

Supported decision-making

This process involves providing support so that a person, such as adult with a cognitive impairment, can make their own decisions rather than a substitute decision-maker making the decision on the person’s behalf.  Examples include providing information to a person that is needed for a decision, or participating in the decision-making process with them.

Tissue

Defined in the Human Tissue Acts to include an organ, part of a human body or a substance extracted from the human body, other than blood.

The Human Tissue Acts also distinguish between ‘regenerative tissue’ and ‘non-regenerative tissue’. Regenerative tissue is tissue which, after injury or removal, is replaced in the body by natural processes. Examples include bone marrow, blood and skin. Non-regenerative tissue comprises all other forms of tissue (i.e. most organs).

Tribunal

An independent body, similar to a court, and established by legislation, with authority to hear disputes, make decisions and/or give directions about matters including guardianship, and medical treatment and health care for adults with impaired decision-making capacity.

Each Australian State and Territory has its own tribunal, generally referred to as a Civil and Administrative Tribunal or Guardianship tribunal.

Voluntariness

See ‘Consent” above.

Voluntary euthanasia

See ‘Euthanasia’ above.

Voluntary palliated starvation

When a competent person refuses to eat or drink and receives palliative care to relieve any suffering she or he experiences from dying due to a lack of food and water.

Withdrawal of life-sustaining treatment

Stopping treatment that has the potential to sustain the life of a person. For example, stopping artificial nutrition and hydration for a person in a persistent vegetative state.

Withholding life-sustaining treatment

Not starting treatment that has the potential to sustain the life of a person. For example, not attempting cardiopulmonary resuscitation (CPR) when a person’s heart suddenly stops beating.