Leslie Massey
The decision to turn off life support is a crucial aspect of end-of-life care, and the laws surrounding euthanasia and assisted suicide in Australia vary across states and territories. While some states have passed legislation for assisted suicide and euthanasia, or voluntary assisted dying, others have yet to implement supported decision-making laws. The legality of turning off life support depends on factors such as the patient's consent, their decision-making capacity, and the involvement of substitute decision-makers or the courts. The ethical considerations in these complex cases revolve around principles of beneficence, nonmaleficence, and patient autonomy.
| Characteristics | Values |
|---|---|
| Life support withdrawal legality | In Australia, it is lawful to withhold or withdraw life-sustaining treatment from adults without decision-making capacity in certain situations. |
| Decision-making capacity | Individuals with impaired decision-making capacity can receive support to make their own choices under the UN Convention on the Rights of Persons with Disabilities, ratified by Australia in 2008. |
| Substitute decision-makers | In the absence of consent from the patient or a substitute decision-maker, healthcare professionals may face prosecution for providing treatment. |
| Best interests | Courts and doctors consider the patient's best interests, including the burden and intrusiveness of treatment and potential pain or indignity caused. |
| Advance decisions | Advance decision-making or Living Wills allow individuals to record their wishes regarding medical treatment when they are unable to communicate them. These are legally binding and take effect immediately upon signing and witnessing. |
| Court involvement | The Supreme Court has ruled that court involvement is not mandatory in every case. Life support can be withdrawn without a court application in cases of prolonged disorders of consciousness if relevant procedures are followed. |
| State laws | As of June 2024, all states except the Northern Territory have passed legislation for assisted suicide and euthanasia ("voluntary assisted dying") for eligible individuals. |
| Voluntary euthanasia | Voluntary euthanasia remains a contentious issue, with legal challenges and proposed legislative amendments ongoing. |
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What You'll Learn
Advance decisions and living wills
In Australia, an advance care directive, or living will, is a formalised version of an advance care plan. It outlines an individual's preferences, beliefs, values, and goals for their future care and medical treatment in circumstances where they are unable to provide consent.
An advance care directive is an important part of end-of-life care planning. It allows individuals to outline their wishes for future medical treatment, including any life-sustaining measures and palliative care. It is a way to ensure that your health wishes are known and upheld if you become unable to make decisions. This is especially important as it is impossible to predict future health outcomes, and individuals may have firm ideas about how they want to live out the rest of their lives.
To create an advance care directive, individuals must be over 18 and have decision-making capacity, referring to the ability to make day-to-day decisions. The directive can be made by completing a form, writing a letter or statement, or verbally telling a trusted person. It is not necessary to involve a lawyer, but a substitute decision-maker and a doctor can also sign the directive. This substitute decision-maker will make decisions about medical treatment if the individual is unable to and should be carefully chosen with this in mind.
In Australia, advance directives differ between states and territories, and individuals should be mindful of this when creating their directive. For example, in South Australia, a form must be signed by an independent authorised witness, such as a Justice of the Peace, lawyer, doctor, or teacher. In Victoria, individuals can appoint someone to act on their behalf for medical matters, while in Western Australia, an advance directive impacts future medical and surgical treatment and any life-sustaining measures.
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Substitute decision-makers
The process of determining a substitute decision-maker varies depending on the specific circumstances and the state or territory in question. In Queensland, for instance, the first person on a predefined list who is available, willing, and capable of acting as a substitute decision-maker is typically chosen. This list includes a guardian or guardians appointed by the Queensland Civil and Administrative Tribunal (QCAT), a spouse, family member, or friend, or a body such as the Public Guardian or a court or tribunal.
The role of the substitute decision-maker is to act in the best interests of the incapacitated person, taking into account their wishes, preferences, and values to the greatest extent possible. When it comes to life-sustaining treatment, substitute decision-makers must engage in discussions with clinicians to understand the risks and benefits of continued treatment and any reasons why it may be considered futile or non-beneficial.
It is important to note that the decision of a substitute decision-maker can be overridden in certain circumstances. For example, in Queensland, if a person with impaired capacity objects to the withholding or withdrawal of treatment, their objection generally takes precedence over the substitute decision-maker's decision. Additionally, in cases of dispute, a Supreme Court or tribunal may intervene and make the final determination regarding the provision of treatment.
While the specific laws and practices may vary across Australia, the overarching principle of substitute decision-making is to uphold the rights and autonomy of individuals who lack the capacity to make their own medical decisions, ensuring that their care aligns with their values and preferences as closely as possible.
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Guardianship law
Appointment of a Guardian
The appointment of a guardian is typically made by a tribunal or similar body within a state or territory government. Before appointing a guardian, the tribunal must be convinced that the current decision-making arrangements are untenable and that there is a specific requirement for a guardian. The Adult for whom guardianship is intended must be made aware of the application and given the opportunity to express their views and preferences.
Role and Responsibilities of a Guardian
A guardian has the authority to make decisions on behalf of the Adult with impaired decision-making capacity. These decisions can include personal matters such as healthcare, residence, and access to services. However, a guardian must respect the will and preferences of the Adult and consult with them when making decisions, unless doing so would cause serious harm to the Adult. Guardians must be over 18 and cannot be paid carers.
Supported Decision-Making
The United Nations Convention on the Rights of Persons with Disabilities, ratified by Australia in 2008, introduces the concept of supported decision-making. This process involves providing support to adults with impaired capacity so that they can participate in decision-making and have their will and preferences prioritised to the greatest extent possible. While some states in Australia do not yet have supported decision-making laws in operation, the practice can still be undertaken in those states.
Withholding or Withdrawing Life-Sustaining Treatment
There are legal considerations regarding the withholding or withdrawing of life-sustaining treatment. In some cases, it may be lawful for such treatment to be withheld or withdrawn if it is not in the person's best interests. This decision can be made by treating doctors or the Supreme Court. The courts will consider factors such as the extent to which the treatment is burdensome, intrusive, or causing unwarranted pain or indignity.
It is important to note that guardianship law in Australia is a complex area, and the above information provides a general overview. For specific legal advice and guidance, it is recommended to consult with a legal professional or seek assistance from relevant organisations in one's state or territory.
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The role of the Supreme Court
The Supreme Court of Australia plays a significant role in matters pertaining to the withdrawal of life support and end-of-life treatment. While the concept of "futility" is contested, the Supreme Court considers it linked to the best interests of the patient. In cases like Melo, Herrington, and Messiha, the Court explicitly stated that continuing treatment deemed futile would not be in the patient's best interests. This consideration of futility and best interests guides medical practitioners in their decision-making.
The Supreme Court has jurisdiction over cases involving children and adults lacking decision-making capacity. In the case of children, the Court can provide or refuse consent to treatment, considering the child's age, maturity, and best interests. In one instance, the NSW Supreme Court ruled against withdrawing life support from a three-year-old boy, S, despite doctors' consensus on the futility of treatment, prioritizing the child's right to life.
For adults, the Supreme Court can intervene in end-of-life treatment decisions, particularly for those with impaired decision-making capacity. In such cases, the Court may decide if withholding or withdrawing life-sustaining treatment is in the person's best interests. This is evident in the Victorian Supreme Court's ruling that continuing artificial ventilation for a 71-year-old comatose man was not in his best interests, overriding family requests.
The Supreme Court's role is to act in the best interests of the patient, balancing the right to life with considerations of dignity, autonomy, and quality of life. While the Court respects the decisions of medical professionals, it can provide crucial oversight and protection for vulnerable individuals, ensuring that life-and-death choices are thoroughly evaluated and justified.
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Voluntary euthanasia and assisted dying legislation
In Australia, euthanasia or assisted suicide is a matter for state and territory governments. As of June 2024, all states and the Australian Capital Territory (ACT) have passed legislation creating a voluntary assisted dying (VAD) scheme for eligible individuals. However, VAD remains illegal in the Northern Territory, where assisting another person to die may result in charges of murder, manslaughter, or assisting suicide.
The process for VAD typically involves an initial request, followed by a final request five days later. The first doctor then conducts a review and can apply to the Voluntary Assisted Dying Board to allow access to a substance to end the patient's life. The person may choose to administer the substance themselves or have a health practitioner do it.
It is important to note that an omission to provide life-sustaining medical treatment is generally lawful in Australia, unless the patient is deemed mentally incapable of consent. In such cases, supported decision-making laws come into play, where a substitute decision-maker or the Supreme Court can act on behalf of the individual.
The legalisation of VAD in Australia has been a gradual process, with ongoing debates and legislative changes occurring over the years. As of 2024, the Northern Territory government has announced the formation of a community consultation process to develop a framework for VAD, indicating a potential shift towards legalisation in the future.
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Frequently asked questions
It is not illegal to turn off life support in Australia, but it is a complex process that requires careful consideration of the patient's wishes, the benefits and burdens of treatment, and relevant laws and guidelines.
As of June 2024, all states and the Australian Capital Territory (except the Northern Territory) have passed legislation creating a voluntary assisted dying scheme for eligible individuals. Each state has its own laws and guidelines regarding the specific criteria for eligibility and the process for ending life support.
The decision to withdraw life support should ideally be made collaboratively with the patient, considering their values, preferences, and prognosis. If the patient lacks decision-making capacity, their substitute decision-maker or the Supreme Court may be involved. An advance decision or Living Will can also be used to document a person's wishes regarding life support.
The ethical decision to remove life support revolves around the principles of beneficence, non-maleficence, and patient autonomy. Life-sustaining treatments are not obligatory when the burdens outweigh the benefits or when the goal shifts from extending life to prioritizing comfort and quality of life.
