Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Special podcast: Australia’s contentious laws on assisted dying – how to plan your end-of-life care


Euthanasia laws in Queensland and NSW are a sensitive topic, Legal Practice Director Jeffrey Garrett recently spoke to community radio about this contentious area of law and how you can plan your end-of-life medical care.

What is euthanasia, or ‘voluntary assisted’ dying?

Voluntary assisted dying is administering medication for the purpose of causing death in accordance with the steps and process set out in law. Voluntary assisted dying must be voluntary and initiated by the person themselves.  It is only for those who face an inevitable, imminent death as a result of an incurable disease, illness or medical condition.

Legal euthanasia – Victoria and Western Australia

Victoria is the first state in Australia to pass voluntary assisted dying laws. The Voluntary Assisted Dying Act (2017) provides a legal framework for people who are suffering and dying to choose the manner and timing of their death. With comprehensive safeguards and rigorous protections, the process for accessing voluntary assisted dying in Victoria is considered to be the most conservative in the world, according to the Victorian Government.

As at August 28, 2019, 11 terminally-ill Victorians have received approval to end their lives using government-endorsed medication through Australia’s only voluntary euthanasia scheme which came into effect on June 19. Similar laws look increasingly likely to pass through WA’s Parliament. The Western Australian bill is based on the Victorian model, passed in 2017, and if passed would make WA the second state in Australia to legalise the practice.

Criteria for euthanasia under laws in Victoria and those proposed for WA

– Under the proposed laws for WA, a person would have to be 18 or over to qualify for voluntary euthanasia
– They would have to be terminally ill with a condition that is causing intolerable suffering and is likely to cause death within six months or 12 months for a neurodegenerative condition
– The person would also have to be an Australian citizen or permanent resident and have been a WA resident for at least 12 months
– The person has to make two verbal requests and one written request
– Those requests would have to be signed off by two doctors independent of each other
– There would be a minimum of nine days between the initial request and final approval
– The choice of lethal medication would be a clinical decision from an approved list of drugs
– Self-administration would be the preferred method
– In a departure from the Victorian regime, a patient could choose for a medical practitioner to administer the drug
– In Victoria, a doctor can only administer the drug if a patient is physically incapable

Euthanasia laws in QLD

Euthanasia laws in Queensland are being considered by the State Government. In November 2018, Queensland Labor Premier launched a 12-month inquiry into the legalisation of voluntary euthanasia as part of a parliamentary inquiry into the delivery of aged care, end of life and palliative care in Queensland across the health and ageing service sector. The inquiry will canvass the Queensland community and health practitioners’ views on the desirability of supporting voluntary assisted dying, including changing the law to legalise euthanasia, and safeguards to protect vulnerable people. Submissions made to the Royal Commission into Aged Care will also be considered before the government will consider enacting euthanasia laws in Queensland.

Voluntary assisted dying laws in NSW

In 2017, the NSW Parliament upper house debated a bill to make it legal for terminally ill NSW residents aged 25 or over and expected to die within 12 months to end their own life with medical assistance. The 2017 Bill was narrowly defeated and in August 2019, the NSW Premier said she did not think community attitudes towards voluntary assisted dying had changed since.

Contentious issues around voluntary euthanasia

There are people who are violently opposed to it on religious grounds, and people who oppose it purely on their choice. There are also people who are very strongly in favour of it, particularly those who have had family members who have suffered a debilitating and prolonged illness and have had to deal with that firsthand.

Andrew Denton is a very prominent high profile personality who is very passionate about voluntary euthanasia because of what he went through with his father. Just about everyone has a story of a family member being affected by these issues and its easy to understand why you get such a polar difference in people’s views. Anyone who has gone through a close family relative suffering with an incurable illness will usually fall in favour of this legislation provided its got the appropriate safety net around it to ensure that you are not going to have things happening that result in someone dying unnecessarily.

I’m in favour of assisted dying legislation. I’ve been through this with my own family and acted for people over the years and been involved with families where this has happened. I just think that if the legislation is carefully thought through, covers all the bases in relation to making sure that no one does this irrationally or without careful thought, where it’s a definite case of that the medical condition is going to catch up with them, I don’t see any problem with it.

Legal issues around euthanasia laws

Insofar as the legal issues are concerned, there may be some issues in relation to anything that is done wrongfully but by definition, the legislation changes that because it pretty much gives the stamp of approval legally to someone doing it. There could be issues in relation to inheritance law. Sometimes if you are involved in the deliberate death of someone it can come against you in terms of inheriting from that person who you have had something to do with their death. But overall I don’t see that there are any great legal issues that deal with it and if there are it’s usually dealt with in the legislation.


Planning your end-of-life care in QLD and NSW

Appoint an Enduring Guardian

Guardians appointed through Enduring Guardian (EG) and Enduring Power of Attorney documents (EPOA) and Administrators appointed by Queensland Civil and Administrative Tribunal.  Administrators and/or Guardians make personal, health, medical and financial decisions on the behalf of a person who has lost capacity. A person of any age can lose capacity with a mental illness, brain injury, dementia or other disease. A Guardian can make health and welfare decisions for a person, including consenting to medical treatment on your behalf, but only if are unable to make those decisions yourself. Attwood Marshall Lawyers can help you to appoint an Enduring Guardian.

Advance Health Directive in QLD

An Advanced Health Directive is applicable in QLD a document that states your wishes or directions regarding your future health care for various medical conditions and it comes into effect only if you are unable to make your own decisions. You may wish your directive to apply at any time when you are unable to decide for yourself, or you may want it to apply only if you are terminally ill.

A good example of this is where someone does not wish to have certain treatment due to strong opinion on the subject or religious beliefs (certain religions forbid blood transfusions).  You can specify whether or not you are to be resuscitated in certain circumstances and also give instructions to your family regarding life support and other issue.

READ MORE: How do I choose an Attorney or Guardian? 

Can I request euthanasia in an Advanced Health Care Directive?

The purpose of an Advance Health Directive is to give you confidence that your wishes regarding health care will be carried out if you cannot speak for yourself.  However, a request for euthanasia would not be followed, as this would be in breach of the law.  Under the Queensland Criminal Code, it is a criminal offence to accelerate the death of a person by an act or omission.  It is also an offence to assist another person to commit suicide. It is strongly recommended that you review the document every two years, or if/ when there is a major change in your health status (e.g. if you are diagnosed with a serious illness).

Advanced Care Directive in NSW

Advance care planning requirements differ from state to state and in NSW, an Advanced Care Directive is used to appoint a substitute decision-maker. If you become unable to make decisions about your own health care, a substitute decision-maker will make decisions on your behalf. The substitute decision-maker is the first of the following who is available, willing and able to make decisions from the following list:

1. An enduring guardian(s) appointed by you.
2. A guardian appointed by the New South Wales Civil and Administrative Tribunal to make decisions about your medical treatment.
3. The first of the following (person responsible):
a. Your spouse or partner where there is a close and continuing relationship
b. Your unpaid carer
c. A friend or relative who has a close personal relationship, frequent contact and a personal interest in your welfare.

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Jeff Garrett - Legal Practice Director - Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

Jeff Garrett

Legal Practice Director
Wills & Estates, Estate Litigation, Property & Commercial, Compensation Law, Commercial Litigation, Criminal Law, Racing & Equine Law

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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