Overview of End of Life Law in Australia

Every adult has the right to decide what is or is not done to their bodies. For medical treatment to be lawful, a person must consent to it. If that treatment is given without consent, the health professional who provides it may be liable under civil or criminal law. An exception to this is if the treatment is 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 will lack capacity for medical decision-making and will not be able to make 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, generally based on what they believe the person would have wanted, and their best interests.
• A tribunal or the Supreme Court can provide consent or make a treatment decision.

A person who has capacity may appoint someone in their Advance Care Directive or other legal document e.g. an Enduring Power of Attorney to be their substitute decision-maker. The substitute decision-maker ‘stands in the shoes’ of the person to make medical treatment decisions when the person no longer has capacity.

Increasingly, it is recognised in law and practice that a person should be supported to make their own decision before substitute decision-making occurs.

Sometimes a person without capacity will not have an Advance Care Directive that makes a decision about the proposed treatment, or have appointed a substitute decision-maker. In those situations, the guardianship and medical treatment decision-making legislation in each State and Territory sets out an order of who can be the substitute decision-maker (e.g. a spouse, family member or friend, or a statutory body, such as the Public Guardian or Public Advocate, or a court or tribunal).

It is lawful for a person with capacity to refuse medical treatment. Health professionals must respect a person’s decision to refuse treatment and, if directed to, they can legally withhold (not start treatment) or withdraw (stop treatment already started) life-sustaining treatment, even if this might result in the person’s death.

It can also be lawful for a person’s substitute decision-maker to ask that life-sustaining treatment be withheld or withdrawn from the person if they can no longer make treatment decisions themselves.

Medication is often given to a person with a life-limiting illness who is experiencing pain or symptoms, to maintain or improve their comfort. In some cases, 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 forms part of the common law in Australia, and is known as the doctrine of double effect. Some Australian States and Territories have incorporated this doctrine into legislation.

Providing medication that ultimately hastens death is not voluntary assisted dying if the health professional’s intention in giving the medication is to reduce pain or symptoms, and not to cause or hasten death.

It is also lawful for a person with capacity to refuse food and drink (either naturally or through artificial measures such as a tube) even if that results in death.

Futile or non-beneficial treatment is treatment which is of no benefit, cannot achieve its purpose, or is not in the person’s best interests.

Health professionals decide whether or not treatment is futile on a case-by-case basis, and may withhold or withdraw treatment that is futile or non-beneficial. They have no obligation to provide treatment that is not in the person’s best interests, or is inconsistent with good medical practice.

A person or their substitute decision-maker cannot require or demand that futile or non-beneficial treatment be given. Their consent is not needed to withhold or withdraw it. A request for futile or non-beneficial treatment in an Advance Care Directive need not be followed.

Queensland’s law is different when the person does not have capacity. In that situation, a substitute decision-maker’s consent is needed to withhold or withdraw treatment, even if it is futile.

In rare cases, treatment disputes have been considered by courts and tribunals. The primary consideration in those cases is the person’s best interests. Courts and tribunals generally agree with clinical assessments of futility.

Generally, it is lawful for a health professional to provide treatment without consent to a person who does not have capacity if there  is an urgent need for treatment e.g. to save a person’s life, prevent serious damage to health,  or prevent significant pain and distress.

It may still be possible, before urgent treatment is provided, to obtain consent either from a person with capacity, or their substitute decision-maker if the person does not have capacity.

In some States and Territories, if a person does not have capacity and needs urgent treatment, the law requires health professionals to seek consent from the person’s substitute decision-maker if it is possible (e.g. a decision-maker can be located and is available and willing). It is good practice for health professionals in all States and Territories to do this if possible.

Urgent treatment cannot be provided if it has been lawfully refused:

• by the person themselves if they have capacity,
• in a valid Advance Care Directive, or
• by a substitute decision-maker.

If an aged care recipient with capacity states they do not want to go to hospital for urgent treatment, or refuses treatment, their request should be respected. This is the case even if they require life-sustaining treatment and will die without it. A health professional who provides treatment contrary to a lawful refusal commits an assault on the person.

Some States and Territories have forms to guide clinical decision-making about cardiopulmonary resuscitation (CPR) in emergencies e.g. resuscitation plans. Whether or not these should be followed depends on the laws of your State or Territory.

End of life decision-making can be challenging for everyone involved in a person’s care and sometimes disagreements can occur. In aged care, these disputes generally arise when there is a disagreement between the care team and a person, their family or substitute decision-maker about a treatment decision.

Most disagreements about medical treatment can be resolved through good communication, shared decision-making, and timely dispute resolution processes within aged care settings.

When a dispute cannot be resolved within aged care, advice or assistance may be sought from State and Territory guardianship bodies such as the Public Advocate or Public Guardian, or a lawyer.

State and Territory tribunals are able to hear disputes about end of life medical treatment. Their powers, the orders they may make, and how they make decisions vary depending on the guardianship and medical treatment legislation of the State or Territory.

State and Territory Supreme Courts also have powers to resolve disputes about medical treatment at the end of life. When making a decision for a person without capacity, the courts’ paramount consideration is the person’s best interests.

Voluntary assisted dying (VAD) refers to the assistance provided by a health practitioner to a person with a terminal illness, disease or medical condition to end their life. ‘Voluntary’ means it is the person’s voluntary choice. The person must have decision-making capacity to decide to access VAD.

VAD is legal in all Australian States and the Australian Capital Territory. It is available in limited circumstances to people who meet the eligibility criteria.

VAD is illegal in the Northern Territory.

Providing appropriate pain and symptom relief with the intention of relieving a person’s pain and suffering is not VAD.