Page 642 - Week 03 - Tuesday, 23 March 1993
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MR CONNOLLY: Well, imminently inevitable, Mr Cornwell. The issue of whether that person's death has been facilitated or has simply occurred because they could no longer live has become hard to determine because of modern technological advances. Consequently, at a practical level, our ACT law concerning the withdrawal or withholding of medical treatment is unclear.
Patients have a common law right to refuse treatment, except basic life services such as food, water or other care the refusal of which would amount to suicide. A doctor who treats a patient against his or her wishes could be civilly liable for assault. Nevertheless, a doctor who withholds treatment on request could, in some circumstances, be liable for murder, manslaughter, assault and other criminal offences as well as subject to a civil compensation claim by the deceased's relatives. The extent of criminal and civil liability is unclear and varies according to the circumstances.
Doctors owe a duty of care to the patient to employ all reasonable means to serve the interests of the patient and keep him or her alive. The withdrawal or withholding of treatment will, except in limited circumstances, amount to murder or manslaughter if a court or jury finds that the withdrawal was a cause of death. However, a doctor is not obliged to persist with futile measures or use extraordinary measures to maintain life where other reasonable doctors would have withdrawn treatment. The question of when treatment becomes useless or futile is, in large part, a decision or judgment of the doctor. The extent in law of the duty of a doctor to keep a patient alive is unclear.
Other States have moved to clarify the right to refuse treatment and protect the medical profession from criminal or civil liability for acting on such a refusal. South Australia and the Northern Territory have similar legislation. At various stages New South Wales, Western Australia and Tasmania have also considered reform. In 1988 Victoria passed legislation which applies to refusal of treatment by all adult patients, not just the terminally ill.
The South Australian Natural Death Act 1983 allows people to give an advance declaration, in a prescribed form witnessed by two people, that in the event of a terminal illness they do not wish to be subjected to extraordinary measures, that is, treatment which artificially prolongs life. The doctor responsible for the patient will not be criminally or civilly liable for withdrawing treatment, because the legislation says that such action does not constitute a cause of death. The legislation does not permit steps which cause or accelerate death, as distinct from an act which permits the dying process to take its natural course. Further, it applies only to treatment of the terminally ill and only in relation to extraordinary measures. The law in all other respects remains the same.
The Victorian Medical Treatment Act 1988 differs from the South Australian Act in a number of important respects. The legislation allows adults to refuse medical treatment, whether terminally ill or not. All medical treatment, except for palliative care as opposed to curative care, including food and pain relief, may be refused. The Act also makes it a criminal offence for a doctor to disobey a valid direction. A 1990 amendment of the Victorian Act provides for directions to be given by an attorney or agent of a patient who because of a mental or legal disability is unable to understand their situation if the medical treatment "would cause unreasonable distress to the patient" or "there are reasonable grounds for believing the patient ... would consider that the medical treatment is unwarranted".
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