End of Life Law in Australia

Euthanasia and Assisted Dying

Voluntary assisted dying (euthanasia and assisted dying) (VAD) is a major legal, ethical and social policy issue with significant implications for health systems, health professionals and communities around the world.

In Australia, VAD is lawful in Victoria in limited circumstances, and is expected to commence in Western Australia in mid-2021. VAD is not lawful in other Australian States and Territories, though this may change in the future as other jurisdictions consider law reform in this area.

This webpage discusses the laws on assisted dying both in Australia and internationally, and their intersection with palliative medication and medical treatment decision-making.

Defining euthanasia and assisted dying

Different terminology is used to refer to voluntary assisted dying depending on the nature of the act, and the jurisdiction e.g. different Australian States and Territories, and other countries. The term ‘voluntary assisted dying’ (or 'VAD') is used throughout this website to refer to the practice of euthanasia and assisted dying in Australia. This term is now in general use in Australian States and Territories.

This section explains what VAD is, and other commonly used terms in this area.

Terminology in Australia

‘Voluntary assisted dying’ (VAD) is commonly used in Australia to refer to the assistance provided to a person by a health practitioner to end their life. ‘Voluntary’ indicates that the practice is a voluntary choice of the person, and that they are competent (have capacity) to decide to access VAD.

The term VAD has evolved in recent years through State and Territory law reform inquiries into end of life choices, as well as parliamentary debates (in Victoria and Western Australia) of laws enabling a terminally ill person to seek medical assistance to die. Prior to the emergence of the term VAD, ‘euthanasia’, ‘physician-assisted suicide’ and ‘physician-assisted dying’ were generally used in Australia to refer to practices involving assisted dying. Though these terms are still used within the community, the legal, medical and health professions, and governments more often use the term VAD.

Victoria’s legislation defines VAD as the assistance provided by a medical practitioner to a person to end their life. This occurs either by a medical practitioner prescribing a VAD substance (i.e. VAD medication) to the person for self-administration or, in limited circumstances, through administration by that medical practitioner.

In Western Australia, VAD means the administration of a voluntary assisted dying substance for the purpose of causing a person’s death, and the steps e.g. processes relating to its administration.

Terminology outside Australia

Different terms are used elsewhere in the world. For example, ‘physician-assisted suicide’ is used in Oregon and other States in the USA. ‘Medical Assistance in Dying’ is the term used in Canada, while ‘euthanasia’ is used in Belgium and the Netherlands.

When discussing the laws in other countries on this website, the terminology used by the relevant country will be used. For further information see Legality of euthanasia and assisted dying outside of Australia.

What is 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. 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 person, 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 person 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 want to die. For example, a doctor injects a competent patient who is in the terminal stage of a terminal illness with a lethal substance, without that person’s request.

Any reference to euthanasia on this webpage is a reference to voluntary euthanasia, unless it is stated otherwise.

Though the term 'euthanasia' continues to be used in Australia, 'voluntary assisted dying' is more commonly used by the legal and health professions to describe euthanasia and assisted dying practices.

What is suicide, assisted suicide and physician-assisted suicide?

Suicide is the intentional act of killing oneself.

Assisted suicide occurs where a person intentionally kills themselves 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 the person to use to commit suicide.

Physician-assisted suicide (or physician-assisted dying) occurs where a person requests that a doctor assist him or her to commit suicide. For example, a doctor provides a person with a prescription to obtain a lethal dose of drugs, which the person uses to take their own life.

What is the difference between euthanasia and assisted suicide?

Assisted suicide is different from euthanasia as the person who provides the assistance (e.g. the friend, relative or doctor) does not do the final act that causes the death. The death is caused by the person themselves, by their own action of committing suicide.

Euthanasia occurs because the action of the first person e.g. the doctor, causes the death of another person.

The following example illustrates the difference:

  • Assisted suicide occurs if a doctor prescribes (but does not administer) barbiturates (i.e. drugs that depress the central nervous system and provide sedation) to a person, with the intention of assisting that person to die, and the person uses the drug to kill him or herself. In this scenario, the doctor has helped the person commit suicide. This is an example of physician-assisted suicide.
  • Euthanasia occurs if a doctor administers a lethal dose of barbiturates to a person and this causes the person’s death.

Voluntary assisted dying in Australia

Victoria 

Voluntary assisted dying (VAD) is legal in Victoria under the Voluntary Assisted Dying Act 2017 (Vic) ('the Act'). The Act provides for and regulates access to VAD, which is defined as 'the administration of a voluntary assisted dying substance, and includes steps reasonably related to such administration'.

What is the eligibility criteria?

A person will be eligible to access VAD if he or she:

  • is aged 18 or over;
  • is an Australian citizen or permanent resident, ordinarily resident in Victoria, and, at the time of making a first request for VAD, has been resident in Victoria for at least 12 months;
  • has decision-making capacity, meaning the person can:
    • understand information relevant to the decision to access VAD, and the effect of the decision;
    • retain that information to the extent necessary to make the decision;
    • use or weigh the information as part of the decision-making process; and
    • communicate the decision and the person’s views and needs about the decision in some way; and
  • is diagnosed with a disease, illness or medical condition that is:
    • incurable;
    • advanced, progressive and will cause death;
    • expected to cause death within six months (or, in the case of a person with a neurodegenerative disease, illness or condition, within 12 months); and
    • causing suffering to the person that cannot be relieved in a manner that the person finds tolerable.

Disability or mental illness alone do not satisfy the eligibility requirements for accessing VAD. A person with a disability or mental illness must meet all of the eligibility criteria.

A person is presumed to have capacity to make a VAD decision unless it can be shown otherwise.

A person who is considered ineligible for VAD because he or she:

  • is not ordinarily resident in Victoria;
  • was not a resident for at least 12 months prior to making the VAD request; or
  • does not have decision-making capacity to make a request

may apply to the Victorian Civil and Administrative Tribunal for a review of the decision.

How is a VAD request assessed?

A person’s eligibility to access VAD must be independently assessed by two medical practitioners, a coordinating medical practitioner and a consulting medical practitioner, who have completed mandatory training.

During the first assessment the coordinating medical practitioner will determine if the person meets the eligibility criteria, and also whether:

  • the person understands what VAD involves;
  • the person has made the decision to access VAD voluntarily; and
  • the request for VAD is enduring.

If the person is eligible, the consulting medical practitioner must carry out a further, independent assessment. If that practitioner confirms the person is eligible and the person wishes to continue, other legislative requirements must then be followed, including the person:

  • making a written declaration requesting access to VAD;
  • making a final request for VAD, in person, to the coordinating medical practitioner; and
  • appointing a contact person (who must return any unused or remaining VAD medication to a pharmacist at the dispensing pharmacy).

On receiving the person’s final request for VAD, the coordinating medical practitioner will conduct a final review, which involves reviewing and completing forms, and certifying that the request and assessment process (and legislative requirements) have been completed.

To view a diagram of the VAD process see page 5 of the following VAD Review Board report.

How and when is VAD administered? 

Once the coordinating medical practitioner certifies in a final review form that the request and assessment process is complete, he or she may apply for a VAD permit for the person (a ‘self-administration permit’). The permit authorises:

  • the coordinating medical practitioner to prescribe and supply the VAD medication to the person for self-administration;
  • the person to obtain, possess, store, use and self-administer the medication; and
  • the contact person to possess, store, carry, transport and return the unused or remaining VAD medication to the dispensing pharmacy following the person’s death.

If the person is physically incapable of self-administering or digesting the medication (e.g. those with physical disabilities that limit their ability to self-administer) the coordinating medical practitioner may apply for a practitioner administration permit authorising them to administer the medication to the person.

After a permit has been issued to the coordinating medical practitioner by the Department of Health and Human Services the person may access VAD. In most cases the VAD medication will be self-administered by the person at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes. There is no requirement for a medical or other health practitioner, or a witness, to be present. The person may change their mind at any time and choose not to take the medication.

In cases of practitioner administration, the VAD medication will be administered by the coordinating medical practitioner (generally intravenously or subcutaneously) to the person. Practitioner administration must take place in the presence of a witness, who must certify that the person appeared to have decision-making capacity at the time of making the administration request; the person appeared to be acting voluntarily, without coercion; and the person’s request appeared to be enduring. The witness must also confirm the coordinating medical practitioner administered the VAD medication to the person.

Anyone the person chooses may also be present during practitioner administration.

Do health practitioners have to provide or help a person to access VAD?

Health practitioners with a conscientious objection to VAD have the right to choose not to participate in VAD. They are under no obligation to:

  • provide information about VAD to a person; or
  • participate in any part of the VAD process, including assessing the eligibility of a person; or supplying, prescribing, administering, or being present prior to, during or following administration of a VAD medication.

What are the safeguards around VAD?

The Act contains a range of safeguards including:

  • A person must make at least three separate requests for VAD.
  • Health practitioners are prohibited from initiating a discussion about VAD. This is designed to ensure that the person’s request for VAD is voluntarily made. Further, a family member or carer cannot request VAD on somebody’s behalf.
  • The person must be provided with information about their diagnosis and prognosis, available treatment and palliative care options, and risks associated with taking the lethal medication (i.e. death). The person must also be advised that they may decide at any time not to continue the VAD process.
  • VAD medication cannot be administered without a permit authorising self-administration or practitioner administration.
  • Regulations governing the prescription, dispensing and disposal of VAD medications. The VAD medication must be stored in a locked box after it has been dispensed. A contact person appointed by the person accessing VAD must return any of the medication unused or remaining after the person’s death.
  • Mandatory reporting requirements for health practitioners and employers where they believe another practitioner’s conduct breaches the Act.
  • Collection and publication of de-identified statistical information about the people who access VAD (i.e. their disease, illness or condition, and their age at the time of their death from VAD).
  • Offences (punishable by up to 5 years imprisonment) for anyone who induces another person to request VAD or take the VAD medication.

To provide VAD medical practitioners must have the necessary expertise and experience as set out in the legislation, and successfully complete the accredited training.

The Voluntary Assisted Dying Review Board is responsible for monitoring, reporting, compliance, safety and research functions.

For further information about VAD in Victoria visit Victoria Health.

Western Australia 

In December 2019 the Voluntary Assisted Dying Act 2019 (WA) was passed by the Western Australian Parliament. Voluntary assisted dying (VAD) is expected to commence in Western Australia in mid-2021 (on a date to be fixed), following an 18-month implementation period.

The Act provides for and regulates access to VAD, which is defined as 'the administration of a voluntary assisted dying substance, and includes steps reasonably related to such administration'. A ‘voluntary assisted dying substance’ is medication used for the purpose of causing a person’s death (referred to on this website as ‘VAD medication’).

What will be the eligibility criteria?

A person will be eligible to access VAD if the person:

  • is aged 18 or over;
  • is an Australian citizen or permanent resident, and at the time of making a first request for VAD was ordinarily resident in Western Australia for at least 12 months;
  • is diagnosed with at least 1 disease, illness or medical condition that:
    • is advanced, progressive and will cause death;
    • will, on the balance of probabilities, cause death within 6 months (or, in the case of a neurodegenerative disease, illness or condition, within 12 months); and
    • is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable;
  • has decision-making capacity for VAD, meaning they can:
    • understand any information or advice that must be provided to the person about a 'VAD decision' (meaning a request for access to VAD, or a decision to access VAD);
    • understand the matters involved in a VAD decision;
    • understand the effect of a VAD decision;
    • weigh up those factors in order to make the VAD decision; and
    • communicate the VAD decision in some way;
  • is acting voluntarily and without coercion; and
  • has an enduring request for VAD.

Disability or mental illness alone will not satisfy the eligibility requirements for accessing VAD. A person with a disability or mental illness must meet all of the eligibility criteria.

A person will be presumed to have capacity to make a VAD decision unless it can be shown otherwise.

Where either of the medical practitioners assessing the person’s eligibility for VAD decide that the person:

  • has, or has not been ordinarily resident in Western Australia for at least 12 months at the time of making the VAD request, or
  • has or does not have decision-making capacity for VAD, or
  • is or is not acting voluntarily and without coercion,

the State Administrative Tribunal will be able to review the decision.

How will a VAD request be assessed?

A person’s eligibility to access VAD will be independently assessed by two medical practitioners, a coordinating medical practitioner and a consulting medical practitioner, who have completed mandatory training.

The first assessment will be performed by the coordinating medical practitioner, who must decide whether the person meets each of the eligibility criteria. The practitioner must also be satisfied that the person understands information about the person’s diagnosis and prognosis, treatment options, palliative care and treatment options, risks of having the VAD medication, and the VAD process.

If the person is eligible, a consulting medical practitioner will carry out a further independent assessment. If that practitioner confirms the person is eligible and the person wishes to continue with VAD, other legislative requirements must then be followed, including making a written declaration, and a final request to the coordinating practitioner.

How and when will VAD be administered? 

A person will be able to access VAD once the request and assessment processes are satisfied, and the coordinating medical practitioner completes a final review form certifying that the person has decision-making capacity and an enduring request for VAD, and is acting voluntarily and without coercion.

The person, in consultation with and on the advice of the coordinating medical practitioner, may decide whether to self-administer the VAD medication, or whether it is to be given by an administrating practitioner. A person can only elect practitioner administration if the coordinating medical practitioner advises that self-administration would be inappropriate e.g. due to the person’s ability to self-administer; the person’s concerns about self-administering; or the method for administering the medication that is suitable to the person.

The administering practitioner may be either the coordinating medical practitioner, or another medical practitioner or nurse practitioner (with at least 2 years’ experience) who is eligible for this role.

Self-administration

The VAD medication will be able to be self-administered by the person at a time and place of their choosing. Other people (e.g. family and friends) may be present if the person wishes. The person may change their mind at any time and choose not to take the medication.

A health practitioner or a witness will not be required to be present for self-administration. The person will however need to appoint a contact person, who is required to return any unused or remaining VAD medication to an authorised disposer either after the person’s death, or if the person changes their mind about accessing VAD.

Practitioner administration

If the VAD medication will be given by an administering practitioner, they must be satisfied at the time of administration that the person has decision-making capacity for VAD, is acting voluntarily and without coercion, and that the request is enduring. Practitioner administration will be required to take place in the presence of a witness, who must certify that the person’s request for access appeared to be free, voluntary and enduring; and that the medication was administered in their presence.

Will health practitioners have to provide VAD, or help a person to access it?

Health practitioners with a conscientious objection to VAD will have the right to choose not to participate in VAD. There will be no obligation to:

  • participate in the request and assessment process,
  • prescribe, supply or administer VAD medication, or
  • be present at the time VAD medication is administered.

If a person requests access to VAD from a practitioner with a conscientious objection they will need to immediately inform the person that they refuse the request, and provide relevant information to them (this information is to be confirmed by the Western Australia Department of Health).

Will it be lawful for a health practitioner to discuss VAD with a person?

A medical practitioner or nurse practitioner will be able to initiate a discussion or suggest VAD to a person so long as they also inform the person, at the same time, about available treatment and palliative care options, and their likely outcomes.

Other health workers (a registered health practitioner, or another person who provides health or professional care services) will be prohibited from initiating a discussion or suggesting VAD but will be able to provide information about VAD on a person’s request.

What will be the safeguards around VAD?

The Act contains a range of safeguards including:

  • The person will need to make at least three separate requests for VAD (a first request, a written declaration, and a final request).
  • The person’s decision to access VAD will need to be voluntary and made without coercion. This requirement will be confirmed at each stage of the request process, and prior to practitioner administration of VAD medication. If the medical practitioners who assess the person’s eligibility for VAD are unable to determine if the person is acting voluntarily and without coercion, they will have to refer the person to someone who has appropriate skills and training to decide. Health practitioners will also receive training about identifying and assessing risk factors for abuse or coercion as part of the approved training for VAD.
  • Health workers will be prohibited from initiating a discussion about or suggesting VAD, unless they are a medical practitioner or nurse practitioner and provide information about treatment options and outcomes to the person at the same time. Further, a family member or carer will not be able to request VAD on somebody’s behalf.
  • The person requesting VAD will have to be provided with information about their diagnosis and prognosis, available treatment and palliative care options, and risks associated with taking the VAD medication (i.e. death). The person will be able to change their mind about VAD, and discontinue a request for VAD at any time.
  • Regulations governing the prescription, dispensing and disposal of VAD medications.
  • Protection from criminal liability for persons who in good faith assist a person to access VAD, or are present when VAD medication is administered.
  • Protection from criminal and civil liability for health practitioners who act in accordance with the Act.
  • Offences (punishable by up to 7 years imprisonment) for anyone who induces another person to request or access VAD.

The Voluntary Assisted Dying Review Board will be responsible for monitoring, reporting, and research.

For further information about VAD visit the Western Australian Department of Health.

Legality of other practices involving dying

Is suicide legal in Australia?

Yes. Suicide and attempted suicide were originally crimes, but are now legal in Australia.

Is it legal to assist a person to commit suicide?

No. Though it is not a criminal offence for a person to take their own life, assisting or encouraging (i.e. aiding, abetting, procuring, counselling, commanding or inciting) another person to commit suicide is illegal in all Australian States and Territories. This is so even where the person requested assistance to die, and regardless of whether the assistance is provided by a relative, friend or medical professional. It is also an offence to take active steps to bring about the death of another person, even where the deceased requested the action causing their death.

The intentional killing of another person, whether at their request (e.g. assisting their suicide) or not technically amounts to the crime of murder. The alternative charge (or verdict) of manslaughter is possible where an unlawful killing occurs but an intention to kill cannot be proven, or there are mitigating circumstances.

Voluntary assisted dying in Victoria is an exception. In Victoria it is not a crime for an authorised medical practitioner to assist a person to access VAD so long as the requirements of the legislation (discussed above) are met. This will also be the case in Western Australia once VAD commences there.

What if the assistance is given for merciful reasons, or the person consents to their life being ended?

A person’s motives for assisting or causing another person to die, even if merciful or compassionate (such as to relieve pain) are not relevant to whether they have committed a crime. This is also the case where the person requests to die - for example, a person asks his or her doctor, or their spouse or partner, to end their life. In those situations, the person who causes the death may still be charged with and found guilty of murder or manslaughter.

However, the person’s motives are relevant in cases where the prosecution decides to charge a person with a lesser offence, or not to bring charges at all (this is known as the exercise of prosecutorial discretion. See for example the 2019 case of Police v O). Motives are also relevant in sentencing a person who acted out of compassion, at the request of another.

Have people been prosecuted for assisting someone to die?

Yes. Numerous prosecutions have been brought against family and friends for assisting with or causing the death of a loved one. Cases have also been brought against medical practitioners. Many of these cases are prosecuted as aiding and abetting suicide, while some cases have involved charges of murder or attempted murder.

The prosecution can choose whether they prosecute for assisted suicide or for murder or manslaughter. In some cases the prosecution may exercise its discretion not to prosecute e.g. on public interest grounds (see the 2019 case of Police v O). Factors that may be considered in deciding which charge to bring include:

  • the level of assistance provided by the accused (e.g. did they actually cause the death, or were they only involved in the preparation for the suicide);
  • whether the accused pleaded guilty early on, and assisted authorities;
  • the mental capacity of the deceased (if the deceased was not mentally competent, the appropriate charge is likely to be murder or manslaughter rather than assisting suicide); and
  • whether there was a suicide pact between the accused and the deceased, and the accused survived.

Some Australian cases involving prosecutions for assisted suicide are discussed below.

Intersection of the laws on assisted dying, medical treatment decision-making and palliative medication

Medical treatment decision making

Is a health professional legally liable if he or she fails to provide medical treatment to a person?

Health professionals have a legal duty to provide a person in their care with the ‘necessaries of life’, including medical treatment. If a health professional breaches this duty, they may be criminally liable for any consequences to the person’s life, health or well being.

However, this duty will not apply where the person has capacity and refuses life-sustaining treatment either at the time the treatment is offered or in an Advance Care Directive, or where the treatment is considered by the doctor to be inappropriate in the circumstances (e.g. futile or non-beneficial). In these cases health professionals are under no duty to provide treatment, even though the person will likely die without it.

Is a health professional legally liable when he or she withholds or withdraws life-sustaining treatment?

No. A health professional does not unlawfully kill a person when he or she withholds or withdraws life-sustaining treatment in one of the situations outlined in the previous question. In those situations the person is considered to have died naturally from their medical condition or disease.

For more information visit our Withholding and withdrawing life-sustaining treatment from adults webpage.

Refusal of food and drink

Can a person refuse ordinary food and drink even it might lead to their death?

Yes. A person with capacity can lawfully refuse ordinary food and drink, as well as artificial nutrition and hydration (for example, given through a tube into the person’s stomach).

If the person dies as a result of refusing food or drink, the person will not have committed suicide. Rather, the person will have exercised his or her lawful right to refuse food or drink.

Does a health professional or other person assist dying by allowing someone to refuse food or drink?

No. If the person has capacity to refuse food or drink it is lawful to respect their refusal.

Providing palliative medication

Does a health professional assist dying when he or she provides palliative care that hastens a patient’s death?

No. Giving palliative medication is legal so long as the health professional’s intention is to reduce or relieve the person’s pain and suffering, not hasten death. This is the case even if the health professional knows death may be hastened by providing palliative medication. Health professionals are protected by the 'doctrine of double effect'. For further information visit our Palliative Medication webpage.

What is voluntary palliated starvation? Is it legal in Australia?

Voluntary palliated starvation (VPS) occurs when person with capacity refuses to eat or drink (known as voluntary stopping eating and drinking, or VSED) and receives palliative medication to relieve any pain, suffering or symptoms she or he experiences from dying due to a lack of food and water. In some situations it has been used by terminally-ill people as an alternative to assisted dying.

It is lawful for a person with capacity to refuse to eat or drink even if it will result in their death. While the legal status of providing palliative medication during this process has not been considered directly by the Australian courts, it is likely that providing palliative care to address pain and other symptoms caused by VSED would be lawful.

VPS is discussed further on our Palliative Medication webpage.

Legality of assisted dying outside Australia

Is assisted dying legal outside Australia?

Yes. Assisted dying (generally physician-assisted suicide) is legal in a number of countries throughout the world including in:

  • the United States: Physician-assisted suicide is legal in these States only:
    • Oregon, Washington, Vermont, California, Colorado, Hawaii, New Jersey, Maine and the District of Columbia. In these States, lethal medication can be prescribed by a doctor to a person over 18 who is suffering from a terminal illness and will die from that condition within six months.
    • Montana: The Montana Supreme Court confirmed in the case of Baxter v Montana that:
      • Neither Montana law or public policy prohibit physician-assisted suicide; and
      • Doctors who assist a person to die (i.e. by prescribing lethal medication) are protected from prosecution for homicide offences, so long as the person consented to the doctor aiding him or her to die.
  • The Netherlands: Assisted suicide and voluntary euthanasia are legal where a person has lasting and unbearable suffering.
  • Belgium: Voluntary euthanasia is legal for people who suffer untreatable, constant and unbearable physical or mental suffering.
  • Luxembourg: Voluntary euthanasia is legal for people who suffer a terminal or incurable illness. Assisted suicide is also legal.
  • Canada: Medical Assistance in Dying (MAiD) is lawful if the eligibility criteria are met and safeguards are followed. Both physicians and nurse practitioners are able to provide MAiD. For more information about MAiD visit End-of-Life Law & Policy in Canada.
    • In Quebec only physicians are able to provide MAiD. They can only administer MAiD to individuals who are at the ‘end of life’.
  • Colombia: Voluntary euthanasia is legal for terminally ill people.
  • Switzerland: Voluntary euthanasia and assisted suicide for selfish motives are illegal under Swiss criminal law. However, assisting a suicide for non-selfish motives is not a criminal offence, even if the person does not have a terminal illness.

Is it legal to travel outside of Australia to seek assistance to die?

The legalisation of assisted dying in some countries has resulted in some people travelling overseas, in particular to Switzerland, to receive assistance to die. Whether or not it is lawful for Australians to accompany a person to travel overseas for this purpose has not yet been addressed in Australia.

In the United Kingdom case of Local Authority v Z [2004, High Court of Justice] the court considered whether a person suffering from cerebellar ataxia could travel from Britain to Switzerland to seek euthanasia. The local welfare authority sought an injunction to prevent the person from leaving Britain. The court found that the local authority had no duty to prevent the person travelling to Switzerland. The court also considered whether the person’s husband, who had agreed to help her travel to Switzerland, was assisting a suicide and should be prosecuted. The court decided it was a matter for the Director of Public Prosecutions (DPP) whether to prosecute the husband.

Following this case, the United Kingdom DPP created guidelines about when they will or will not prosecute a person who accompanies another overseas to commit suicide. The guidelines state that a person commits an offence under the United Kingdom’s Suicide Act 1961, punishable by up to 14 years imprisonment, if he or she encourages or assists the suicide or attempted suicide of another person. However, the consent of the DPP is required before a person can be prosecuted.

Although there are no similar guidelines in Australia, the United Kingdom’s guidelines may possibly be considered if a similar legal situation arose in Australia.

Key cases

Police v O (2019)

The deceased and her husband, O, had been in a loving relationship for over 25 years. At the time of the deceased’s death she was 68 years old, and O was 63 years old. They had both worked as nurses. In 2016 the deceased developed motor neurone disease, which leads to a loss of mobility, reduced respiratory function and ultimately death. In late 2018 the disease was advanced and the deceased had researched how to end her life. She attended an education evening run by an organisation which taught people suffering terminal illness how to end their life. In March 2019, O assisted her to commit suicide (by using an item that he had modified) while she was still able to physically take her own life. O was charged with aiding her suicide.

Though the evidence offered reasonable prospects of O’s conviction, the ACT Director of Public Prosecutions (DPP) decided to withdraw the charge against O on the grounds it was not in the public interest to prosecute him. The reasons for this included:

  • The deceased and O were in their sixties and had a long, loving and supportive relationship.
  • At the time of her death the deceased had lost all independent functioning (including walking, self-care and toileting). Her death was imminent (e.g. within months).
  • The deceased was of sound mind and had told a number of people over a period of time that she wished to end her life while she was still mobile and able to do so, to avoid a distressing death.
  • There was no financial gain to O from aiding the deceased’s suicide.
  • O’s assistance ‘was minimal, motivated wholly by love and compassion, and designed to ensure that the deceased’s death was quick and painless’.
  • O encouraged the deceased to delay ending her life and tried to dissuade her again on the evening she died. It was also noted that the deceased’s death caused him significant trauma.

The DPP considered the consequences of a conviction would ‘be unduly harsh and oppressive in the circumstances’, and exercised his discretion to withdraw the charge.

R v Dowdle [2018] NSWSC 240

Dowdle killed her 27-year-old son with a dose of sedatives combined with asphyxiation with a plastic bag. Her adult son had been severely injured in a car accident, and partially as a result of that accident had developed significant substance abuse problems. He was physically and verbally abusive to her, but Dowdle gave as the reason for killing him that she could not bear to see him continually in pain. Dowdle herself had been suffering a major depressive disorder at the time.

Dowdle was charged with murder but pleaded a defence of substantial impairment so that the charge was reduced to manslaughter. The judge took into account her extensive attempts to advocate for her son to receive appropriate treatment and facilities, albeit such facilities were not available. He sentenced her to three years’ imprisonment with a non-parole period of two years. She was released immediately as she had already served the two years.

R v Klinkermann [2013] VSC 65

Mrs Klinkermann was diagnosed with severe dementia and Parkinson’s disease in 2006.  In 2012 her condition had deteriorated and she could not chew of swallow food or liquid easily. She was assessed as requiring full-time palliative care, but her husband would not agree to this. Mr Klinkermann adored his wife, had been totally devoted to her care (looking after her most of the time), and wanted to continue caring for her.

In August 2012 (at which time Mrs Klinkermann was 84 years old and Mr Klinkermann was aged 73) Mr Klinkermann gave her a sleeping tablet and took several himself. He attempted to kill both of them by way of carbon monoxide poisoning in their home. This was not successful, and both husband and wife were found unconscious by a visiting nurse.

Mr Klinkermann was charged with the attempted murder of his wife. He was sentenced to an 18-month community corrections order, with the conditions that he receive medical and mental health treatment, and rehabilitation.

R v Justins [2011] NSWSC 568

Justins was the long-term partner of Wylie. Jennings was their friend. Wylie suffered from Alzheimer’s disease and six months prior to his death, he had attempted suicide by cutting his wrists. He stated he wanted to go to Switzerland to have assistance in committing suicide through an organization called Dignitas. However, Dignitas rejected Wylie’s application on the grounds Wylie may not have the capacity to make the decision to end his own life. Wylie then attempted suicide again.

Jennings then travelled to Mexico to source the drug Nembutal (which is illegal in Australia) for the purpose of ending Wylie’s life. Wylie was provided with the Nembutal, drank it voluntarily and died. Justins and Jennings then concocted alibis and denied any connection with Wylie’s death. Prior to Wylie’s death, and with Justins’ assistance, Wylie had changed his will to provide Justins with a much greater benefit, to the exclusion of Wylie’s daughters.

The jury found Justins and Jennings guilty of manslaughter. Justins received a sentence of 2.5 years imprisonment with a non-parole period of 22 months to be served by periodic detention. Justins’ conviction was overturned on appeal and she pleaded guilty to the lesser offence of aiding and abetting suicide. She received no further punishment as, by that time, she had served 22 months in prison. Jennings committed suicide prior to being sentenced.

R v Cox (1992) 12 BMLR 38

Boyes, an elderly lady, was in agonising pain from rheumatoid arthritis. She had known Dr Cox for 13 years and he said she would not suffer. After many unsuccessful attempts to control her pain Boyes begged Dr Cox to kill her. Dr Cox administered a large dose of potassium chloride and Boyes died shortly after. Dr Cox was charged with attempted murder.

During the trial the jury was instructed on the doctrine of double effect: Dr Cox could only be convicted if his primary intention was to cause her death. Significantly in this case, the potassium chloride did not have any curative or pain-relieving properties and was estimated to be twice the lethal dose. Dr Cox was convicted of attempted murder as his intention was not to relieve Boyes’ pain or symptoms through this medication.

R v Adams (Bodkin) (Unreported, Central Criminal Court, Devlin J, 9 April 1957)

Dr Adams was charged with the murder of an elderly female, Morrell. The Crown argued that the very large quantities of medication given to Morrell showed that Dr Adams must have intended to kill her. There was conflicting evidence about Morrell’s level of pain, and whether the doses of medication given could have been medically appropriate. Dr Adams was acquitted by the jury.

Justice Devlin famously stated: ‘if the first purpose of medicine – the restoration of health – could no longer be achieved, there was still much for the doctor to do, and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or perhaps even longer’.

Further resources

Publications

Ben White, Katrine Del Villar, Eliana Close and Lindy Willmott, ‘Does the Voluntary Assisted Dying Act 2017 (Vic) Reflect Its Stated Policy Goals?’ (2020) 43(2) University of New South Wales Law Journal.

Andrew McGee, 'Voluntary assisted dying: should conscientious objection be unconditional?' (2020) 50 Journal of Pharmacy Research and Practice 117-121.

Katrine Del Villar, Lindy Willmott and Ben White, ‘Suicides, Assisted Suicides and 'Mercy Killings': Would Voluntary Assisted Dying Prevent these 'Bad Deaths'?’ (2020) 46(2) Monash University Law Review.

Lindy Willmott et al, 'Restricting conversations about voluntary assisted dying: Implications for clinical practice' (2020) 10(1) BMJ Supportive and Palliative Care 105.

Ben White and Lindy Willmott, ‘A Model Voluntary Assisted Dying Bill’ (2019) 7(2) Griffith Journal of Law and Human Dignity 1.

Ben White and Lindy Willmott, ‘Evidence-based law-making on voluntary assisted dying’ (2019) Australian Health Review 1.

Bregie Onwuteaka-Philipsen, Lindy Willmott and Ben White, 'Regulating voluntary assisted dying in Australia: Some insights from the Netherlands' (2019) 211(10) Medical Journal of Australia 438.

Ben White, Lindy Willmott and Eliana Close, ‘Victoria’s voluntary assisted dying law: Clinical implementation as the next challenge’ (2019) 210(5) Medical Journal of Australia 207.

Ben White and Lindy Willmott, Voluntary Assisted Dying Bill 2019 (Unpublished, 2019).

Carmelle Peisah, Linda Sheahan and Ben White, ‘The biggest decision of them all - death and assisted dying: capacity assessments and undue influence screening’ (2019) 49(6) Internal Medicine Journal 792.

Andrew McGee et al, ‘Informing the euthanasia debate: Perceptions of Australian politicians' (2018) 41(4) University of New South Wales Law Journal 1368.

Ben White and Lindy Willmott, 'Future of assisted dying reform in Australia' (2018) Australian Health Review 616.

Cameron Stewart,  ‘Euthanasia, Suicide and Assisted Dying’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Law Book Co, 3rd ed, 2018) 526.

Lindy Willmott and Ben White, ‘Assisted dying in Australia: A values-based model for reform’ in Ian Freckleton and Kerry Petersen (eds), Tensions and Traumas in Health Law (Federation Press, 2017) 479.

Andrew McGee and Franklin Miller, 'Advice and care for patients who die by voluntarily stopping eating and drinking is not assisted suicide' (2017) 15(222) BMC Medicine 1.

Lindy Willmott et al, ‘(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics’ (2016) 39(1) University of New South Wales Law Journal 1.

Neera Bhatia, Ben White and Luc Daliens, ‘How should Australia respond to media-publicised developments on euthanasia in Belgium?’ (2016) 23(4) Journal of Law and Medicine 835.

Ben White, Lindy Willmott and Julian Savulescu, ‘Voluntary palliated starvation: A lawful and ethical way to die?’ (2014) 22(2) Journal of Law and Medicine 376.

Bob Douglas, Lindy Willmott and Ben White, The right to choose an assisted death: Time for legislation? (Report, January 2013).

Ben White and Lindy Willmott, 'How should Australia regulate voluntary euthanasia and assisted suicide?' (2012) 20(2) Journal of Law and Medicine 410.

Jocelyn Downie and Ben White, ‘Prosecutorial discretion in assisted dying in Canada: A proposal for charging guidelines’ (2012) 6(2) McGill Journal of Law and Health 113.

Ben White and Jocelyn Downie, ‘Prosecutorial guidelines for voluntary euthanasia and assisted suicide: Autonomy, public confidence and high quality decision-making’ (2012) 36(2) Melbourne University Law Review 656.