The law at end of life is complex and often difficult to understand. This webpage is designed to help you navigate the laws that are considered in this website. It gives an overview of fundamental concepts relating to the law at end of life in Australia. Links are provided to where a topic is discussed in more detail.
Capacity and consent to treatment
Every adult has the right to decide what is or is not done to their body. For medical treatment to be lawful, a person must consent to it. If that treatment is given without consent, the doctor (or whoever provides it) may be civilly and criminally liable. An exception to this is if the treatment was provided in an emergency in order to save the person’s life, and it was not possible to obtain consent from the person or their substitute decision-maker.
Consent to treatment is only valid if the person has ‘capacity’ or is ‘competent’ to consent. The consent must be given freely and voluntarily, and it must relate to the proposed treatment.
Every adult is presumed to have capacity to make their own medical treatment and health care decisions. To have capacity the person must be 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.
A person without those abilities, due, for example, to dementia, intellectual disability or mental illness will lack capacity for medical decision-making and will not be able to make medical treatment decisions themselves. In that situation, there are three ways in which decisions can be made by, or for them:
- Before they lost capacity, the person may have made an Advance Care Directive which provides directions about medical treatment;
- A substitute decision-maker can make the decision, based on what they believe the person would have wanted and their best interests; or
- A tribunal or the Supreme Court can provide consent, or make a treatment decision.
Adults and end of life decision-making
An Advance Care Directive is an instruction that a person makes now in the event that they might lose capacity in the future to make decisions about their medical treatment or health care. There are two types of Advance Care Directives: common law Advance Care Directives governed by the common law (i.e. decisions made by the Courts), and Statutory Advance Care Directives governed by State and Territory legislation.
Advance Care Directives can be used to communicate specific instructions about types of treatment, including to request or refuse treatment (e.g. refusing a blood transfusion or cardiopulmonary resuscitation), or to communicate general care or treatment preferences (e.g. wanting to die at home, not in hospital). Some Advance Care Directives can also be used to appoint a substitute decision-maker. Generally, doctors must follow a valid and applicable Advance Care Directive, (including a directive that refuses life-sustaining treatment, except in some limited circumstances, and may be liable under civil and criminal law if they do not.
If a person cannot make their own decision about medical treatment and they do not have an Advance Care Directive, someone has to decide for them. For adults, guardianship legislation in each State and Territory allows someone else (e.g. a spouse, family member or friend, a statutory body such as the Public Guardian or Public Advocate, or a Court or tribunal) to be the substitute decision-maker for medical treatment.
It is lawful for an adult with capacity to make their own decisions to refuse or accept medical treatment, even if the decision they make results in their death. Doctors must respect those decisions to refuse treatment, and, if directed to do so doctors can legally withhold (not start treatment) or withdraw (stop treatment already started) life-sustaining treatment from adults, even if this might result in the person’s death. It can also be lawful for a substitute decision-maker to ask that life-sustaining treatment be withheld or withdrawn from someone who can no longer make treatment decisions for themselves.
Individuals, families and substitute decision-makers cannot demand treatment that doctors consider to be ‘futile’ (for example, treatment that a doctor believes would not be beneficial to the person). A doctor has no legal obligation to provide such treatment, and generally can withhold or withdraw futile or non-beneficial treatment without consent from an adult or their substitute decision-maker (except in Queensland, where a substitute decision-maker’s consent is required).
Consent is required before medical treatment can be provided to a child under the age of 18, unless it is an emergency or a blood transfusion is required. Upon reaching 18 (and 16 in South Australia) that person will be able to make their own decisions about medical treatment.
Generally, when a child is under 18, the child’s parents can consent to or refuse medical treatment for their child. However some older children may be able to make their own medical decisions. This is the case if they have ‘sufficient understanding and intelligence to understand fully’ the proposed medical treatment and its effects (this is sometimes referred to as being ‘Gillick-competent’).
The paramount consideration of parents (and courts) when making treatment decisions is what is in the child’s best interests. Parents and children who are Gillick-competent are able to refuse life-sustaining medical treatment, provided it is in the child’s best interests.
Palliative medication is often given to a person with a life-limiting illness, who may be experiencing pain or symptoms, to maintain or improve their comfort. In some cases, this medication may have the unintended effect of hastening the person’s death. If this occurs, the person who provided the medication (usually a doctor or nurse) will not be liable for the person’s death so long as their intention was to relieve pain or symptoms, and not to hasten death.
This legal protection of appropriate palliative medication forms part of the common law in Australia, and is sometimes known as the ‘doctrine of double effect’. Some Australian States and Territories have incorporated this doctrine into legislation.
Families and friends of people who are dying or who have recently died may be asked to consider donating the deceased’s organs and tissues for transplantation into another person. Consent is needed for organ and tissue donation. In Australia, adults with decision-making capacity have the option to record their consent or refusal to donate on the Australian Organ Donation Register. However, the deceased’s family will also be asked to provide consent to donation, even if the person has already recorded their consent on the Register. Where there is a dispute or resistance to organ donation among family members, removal of organs or tissue will not occur, even if the potential donor had expressed a wish to donate, or had registered their consent.
Euthanasia is a deliberate, intentional act of one person to end the life of another person, to relieve that person’s suffering. Assisted suicide occurs where one person (e.g. a doctor, family member or friend) assists another to intentionally kill themselves.
These acts (sometimes called ‘assisted dying’) are illegal in all Australian States and Territories, and may result in a person being charged with murder, manslaughter or assisting suicide. However, this will change in Victoria from 19 June 2019 when voluntary assisted dying will become legal in limited circumstances.
These acts are legal in some countries, but whether or not it is lawful for Australians to accompany a person to travel overseas to receive assistance to die has not yet been decided in Australia.
A doctor does not euthanise or unlawfully kill a person by withholding or withdrawing life-sustaining treatment where the treatment was lawfully refused either by the person or their substitute decision-maker, or where the doctor considers the treatment is futile or burdensome. Providing palliative medication which ultimately hastens death is not euthanasia or assisted suicide, so long as the doctor’s intention in giving the palliative medication was to reduce pain or symptoms, not cause or hasten death. It is also lawful for a person to refuse food and drink (either naturally or through artificial measures such as a tube) even if that results in death.