End of Life Law in Australia

Euthanasia and Assisted Dying

Euthanasia and assisted dying are topical issues around the world. In Australia, attempts to reform the law occur regularly, while in Europe and North America there is a trend towards the legalisation (or decriminalisation) of voluntary euthanasia and physician-assisted dying. Discussion of these issues remains prevalent within the media, fueled by the not infrequent prosecutions of family members, friends and medical practitioners who have been involved with the death of persons. This webpage discusses the laws relating to euthanasia and assisted dying both in Australia and overseas, and the intersection of these laws with palliative care and other treatments.

Defining euthanasia and assisted dying

What is euthanasia?

Euthanasia is a deliberate, intentional act of one person to end the life of another person in order to relieve that person’s suffering. For example, a doctor injects a patient with a lethal substance to relieve that person from unbearable physical pain. The term euthanasia is often used in different ways. Three of the most common are:

  • Voluntary euthanasia: Euthanasia is performed at the request of the person whose life is ended, and that person is competent. For example, a doctor injects a competent patient, at their request, with a lethal substance to relieve that person from unbearable physical pain.
  • Non-voluntary euthanasia: Euthanasia is performed and the person is not competent. For example, a doctor injects a patient in a post-coma unresponsive state (sometimes referred to as a persistent vegetative state) with a lethal substance.
  • Involuntary euthanasia: Euthanasia is performed and the person is competent but has not expressed the wish to die or has expressed a wish that he or she does not die. For example, a doctor injects a competent patient who is in the terminal stage of a terminal illness such as cancer with a lethal substance without that person’s request.

Any reference to euthanasia on this webpage is a reference to voluntary euthanasia, unless it is stated otherwise.

What is assisted suicide?

Suicide is the intentional act of killing oneself. Assisted suicide occurs where a person intentionally kills themselves with the assistance of another (who provides the knowledge or means to do it). For example, where a friend or relative obtains a lethal drug and provides it to the person to use to commit suicide.

Physician-assisted suicide occurs where a person requests a doctor to assist them in committing suicide, for example, a doctor provides a person with a prescription to obtain a lethal dose of drugs.

What is the difference between euthanasia and assisted suicide?

Assisted suicide is different from euthanasia as the person who provides the assistance (e.g. the friend, relative or doctor) does not do the final act that causes the death. The death is caused by the person themselves, by their own action of committing suicide.

Euthanasia occurs because the action of the first person e.g. the doctor, causes the death of another person.

The following example illustrates the difference:

  • If a doctor prescribes barbiturates (a drug that depresses the central nervous system and sedates a person) to a patient who uses the drug to kill him or herself, the doctor has helped the person to commit suicide. In this case assisted suicide has occurred.
  • If a doctor administers a lethal dose of barbiturates to a patient that ends the patient’s life, euthanasia has occurred.

Legality of euthanasia and assisted dying

Is suicide legal in Australia?

Yes. Suicide and attempted suicide were originally crimes, but are now legal in Australia.

Victoria's Voluntary Assisted Dying law

From 19 June 2019 voluntary assisted dying (VAD) will be legal in Victoria under the Voluntary Assisted Dying Act 2017 (Vic) ('the Act'). The Act provides for and regulates access to VAD, defined as 'the administration of a voluntary assisted dying substance, and includes steps reasonably related to such administration' (i.e. physician-assisted dying, not voluntary euthanasia)

Eligibility criteria

In order to access VAD, a person must meet strict eligibility criteria, including that the person must:

  • be aged 18 or over;
  • be an Australian citizen or permanent resident, ordinarily resident in Victoria, and, at the time of making a first request for VAD, have been resident in Victoria for at least 12 months;
  • have decision-making capacity; and
  • be diagnosed with a disease, illness or medical condition that is:
    • incurable;
    • advanced, progressive and will cause death;
    • is expected to cause death within six months; and
    • is causing suffering to the person that cannot be relieved in a manner that the person finds tolerable.

The only exception is if the person is diagnosed with a neurodegenerative disease, illness or medical condition. In that case, a person may access VAD provided that disease, illness or condition is expected to cause death within 12 months.

A person is not eligible to access VAD only because they have a disability, or are diagnosed with a mental illness.

A person who is considered ineligible to access VAD because they:

  • were not ordinarily resident in Victoria, or
  • resident for at least 12 months prior to making the request), or
  • has or does not have decision-making capacity to make a request

may apply to the Victorian Civil and Administrative Tribunal for a review of the decision.

Requests and assessment

The Act requires the person to make three separate requests for VAD, undergo two independent medical assessments, and make a written, witnessed declaration requesting access to VAD (once s/he has been assessed as eligible for access).

Conscientious objection

A health practitioner with a conscientious objection to VAD has the right to refuse to provide information about VAD to a patient, and to participate in any part of the VAD process (including supplying, prescribing or administering a VAD substance, or being present when a VAD substance is administered).

Administration

In order to obtain, possess, store, use and self-administer the VAD substance, the person accessing VAD must be issued with a self-administration permit. If the person is physically incapable of self-administering or digesting the substance, a practitioner administration permit must be applied for, permitting the coordinating medical practitioner to administer the substance to the person. The person must then make an administration request to the practitioner in order to be administered the substance.

Safeguards

The legislation contains a range of safeguards, including:

  • the person seeking VAD must be provided with information about: diagnosis and prognosis; available treatment options; palliative care options; and risks associated with injecting the lethal medication (i.e. death). The person must also be advised that s/he may decide at any time not to continue the VAD process.
  • A Voluntary Assisted Dying Review Board will be established with monitoring, reporting, compliance, safety and research functions.
  • Regulations governing the prescription, dispensing and disposal of VAD substances.
  • Mandatory reporting requirements for health practitioners and employers where they believe another practitioners’ conduct breaches the Act e.g. offering to provide access to VAD in a way that contravenes the Act.
  • Protection from criminal liability for persons who assist or facilitate a request for, or access to VAD.
  • Protection from criminal and civil liability for practitioners who act in accordance with the Act.
  • A range of new offences relating to non-compliance with or contravention of the Act.
  • Statistical information about the people who access VAD (i.e. their disease, illness or condition, and their age at the time of their death from VAD) will be recorded and publically released (in a de-identified form).

Review

The Act will be reviewed by the Minister in its fifth year of operation.

Key aspects of Australian law on euthanasia and assisted dying

Is euthanasia murder or manslaughter?

Yes, potentially both. Under the criminal law, the act of killing a person falls within the definitions of murder and/or manslaughter.

While the criminal law varies between Australian States and Territories, murder generally occurs where there is the intentional killing of another, or where the person knows that death or serious bodily harm would be a likely consequence of his or her actions. If a person euthanises another, and that person intends to kill the other, or knows death or serious bodily harm is likely to occur, then that is murder.

Manslaughter is the unlawful killing of another in circumstances where an intention to kill cannot be proven, or there are mitigating circumstances. Manslaughter can be either voluntary (i.e. the accused intended to and did cause the death but there are mitigating factors justifying a reduced charge) or involuntary (the accused did not intend to kill but caused an unlawful death).

People accused of committing euthanasia are often prosecuted for the offence of voluntary manslaughter.

What if the killing is done for merciful reasons or is a compassionate killing, or the person consents to being their life being ended?

A person’s motives for killing another, even if merciful or compassionate (such as to relieve pain) are not relevant to whether they have committed a crime. This is also the case even where the victim consents to being killed (for example, a person asks a doctor to end their life). In those situations, a person may still be charged with and found guilty of murder or manslaughter.

Have people been prosecuted for euthanasia and assisted dying?

Yes. There have been a number of criminal convictions involving euthanasia and assisted dying. However, prosecution is rare and usually results in lenient penalties (such as wholly suspended sentences where the offender does not serve any time in prison).

The prosecution can choose whether they prosecute for assisted suicide or for murder or manslaughter, and will look at:

  • the level of assistance provided by the person (did they actually cause the death, or were they only involved in the preparation for the suicide);
  • whether the offender pleaded guilty early and assisted authorities;
  • the mental capacity of the deceased (if the deceased was not mentally competent, the appropriate charge is likely to be murder or manslaughter); and
  • whether there was a suicide pact between the person and the deceased and that person survived.

Intersection of the law on euthanasia and assisted dying with other treatment decisions and palliative care

If a health professional fails to provide medical treatment to a patient, can the health professional be guilty of killing that patient?

Health professionals have a legal duty to provide a person in their care with the ‘necessaries of life’, including medical treatment. If the health professional breaches this duty, they may be criminally liable for any consequences to the patient’s life, health or wellbeing.

However, this duty will not apply where the patient has capacity and refuses life-sustaining treatment either at the time the treatment is offered, or in an Advance Directive, or where the treatment is considered by the doctor to be inappropriate in the circumstances (e.g. futile). In these cases the health professional is under no duty to provide the treatment, even though the patient will die without the treatment.

Does a health professional perform euthanasia or assist dying when he or she withholds or withdraws life-sustaining treatment?

No. A health professional does not unlawfully kill a patient when he or she withholds or withdraws life-sustaining treatment in one of the situations outlined in the previous question. In those situations the person is considered to have died naturally from their medical condition or disease.

Can a person refuse ordinary food and drink without being force-fed?

Yes. If a person has capacity, they are legally able to refuse both artificial nutrition and hydration (for example, given through a tube into the person’s stomach) and also ordinary food and drink. This is not considered to be suicide, but rather the person exercising his or her right to refuse treatment.

Does a health professional or other person assist dying by allowing someone to refuse food or drink?

No. If the person has capacity to refuse food or drink then respecting their refusal and not force-feeding the person is not assisting them to die.

Does a health professional perform euthanasia or assist dying when he or she provides palliative care that hastens a patient’s death?

No. Giving palliative care is legal so long as the health professional’s intention is to reduce or relieve a patient’s pain and suffering, not hasten death. This is the case even if the health professional knows death may be hastened by providing palliative care. This is known as the 'doctrine of double effect'.

Emerging issue: Voluntary palliated starvation

Voluntary palliated starvation (VPS) occurs when a competent person refuses to eat or drink and receives palliative care to relieve any pain, suffering or symptoms she or he experiences from dying due to a lack of food and water. In some situations it has been used as an alternative to physician-assisted suicide. VPS and its legal status in Australia is discussed on our Palliative Medication webpage.

Legality of euthanasia and assisted dying outside Australia

Are euthanasia and assisted dying legal outside Australia?

Yes. Voluntary euthanasia and/or assisted dying (generally physician-assisted suicide) are legal in a number of countries throughout the world including:

  • United States: Only physician assisted suicide is legal, and only in these states:
    • Oregon, Washington, Vermont, California, Colorado, the District of Columbia and Hawaii: Lethal medication can be prescribed by a doctor to patients over 18 who are suffering from a terminal illness and will die from that condition within six months.
    • Montana: The Montana Supreme Court confirmed in the case of Baxter v Montana that:
      • Neither Montana law or public policy prohibit physician-assisted suicide; and
      • Doctors who assist a person to die (i.e. by prescribing lethal medication) are protected from prosecution for homicide offences, so long as the patient consented to the doctor aiding him or her to die.
  • The Netherlands: Assisted suicide and voluntary euthanasia are legal where a person has lasting and unbearable suffering.
  • Belgium: Voluntary euthanasia is legal for patients who suffer untreatable, constant and unbearable physical or mental suffering.
  • Luxembourg: Voluntary euthanasia is legal for patients who suffer a terminal or incurable illness. Assisted suicide is also legal.
  • Canada: In June 2016 the Canadian Parliament passed federal legislation which legalises medical assistance in dying (MAiD) if the eligibility criteria are met and safeguards are followed. More information about the eligibility criteria, and these reforms is available from End-of-Life Law & Policy in Canada,  a presentation by international end of life law expert Professor Jocelyn Downie, and a recent development on MAiD authored by Professor Downie.
    • In Quebec, physician-assisted suicide is legal, but not suicide assisted by people other than physicians.
  • Colombia: Voluntary euthanasia is legal for terminally ill patients.
  • Switzerland: The legal situation in Switzerland is unusual as voluntary euthanasia and assisted suicide are illegal under Swiss criminal law, but assisted suicide routinely occurs. This is because assisted suicide will only be an offence if it is carried out for ‘selfish motives’. Provided there are no selfish motives, assisted suicide is not prohibited.
    Under Swiss law, it is irrelevant whether or not the person has a terminal illness. Also, friends and relatives can provide assistance for people to die, not just doctors. As a result, in recent years Switzerland has become a destination for individuals from countries where voluntary euthanasia and assisted suicide are illegal.

Is it legal to travel overseas to seek euthanasia or assisted suicide?

The legalisation of voluntary euthanasia and/or assisted suicide in some countries has resulted in some patients travelling overseas, in particular to Switzerland, to receive assistance to die. Whether or not it is lawful for Australians to accompany a person to travel overseas for this purpose has not yet been addressed in Australia.

In the United Kingdom case of Local Authority v Z the court considered whether a patient suffering from cerebellar ataxia could travel from Britain to Switzerland to seek euthanasia. The local welfare authority sought an injunction to prevent the patient from leaving Britain. The court found that the local authority had no duty to prevent the patient travelling to Switzerland. The court also considered whether the patient’s husband, who had agreed to help her travel to Switzerland, was assisting a suicide and should be prosecuted. The court decided it was a matter for the Director of Public Prosecutions (DPP) whether to prosecute the husband.

Following this case, the United Kingdom DPP created guidelines detailing when they will or will not prosecute a person who accompanies another overseas to commit suicide. The guidelines state that a person commits an offence under the United Kingdom’s Suicide Act 1961, punishable by up to 14 years imprisonment, if he or she encourages or assists the suicide or attempted suicide of another person. However, the consent of the DPP is required before a person can be prosecuted.

Although there are no similar guidelines in Australia, the United Kingdom’s guidelines may be considered if this law arises in Australia.

Key cases

Director of Public Prosecutions v Nestorowycz [2008] VSC 385

Nestrowycz’s husband suffered from dementia and diabetes and was in a wheelchair. Although her husband pleaded to be taken home from care, there was no clear evidence of his intent to die. Nestrowycz stabbed her husband and then attempted suicide. She pleaded guilty to attempted murder and received a suspended sentence of 2 years 9 months.

R v Cox (1992) 12 BMLR 38

Mrs Boyes, an elderly lady, was in agonising pain from rheumatoid arthritis. She had known Dr Cox for 13 years and he said she would not suffer. After many unsuccessful attempts to control her pain Mrs Boyes begged Dr Cox to kill her. Dr Cox administered a large dose of potassium chloride and Boyes died shortly after. Cox was charged with attempted murder (the Crown was unsure if they could prove the drugs killed Boyes or she died from her other conditions. Boyes’ body had been cremated and therefore there was no scientific evidence the potassium chloride killed her).

During the trial the jury was instructed on the doctrine of double effect: Cox could only be convicted if his primary intention was to cause her death. Significantly in this case, the potassium chloride did not have any curative or pain-relieving properties and was estimated to be twice the legal dose. The jury convicted Cox of attempted murder (Cox received a suspended sentence of one year imprisonment and was allowed to return to his medical duties under supervision).

R v Justins [2011] NSWSC 568

Justins was the long term partner of Wylie. Jennings was their friend. Wylie suffered from Alzheimer’s disease and six months prior to his death he had attempted suicide by cutting his wrists. He stated he wanted to go to Switzerland to have assistance in committing suicide through an organization called Dignitas. However Dignitas rejected Wylie’s application on the grounds Wylie may not have the capacity to make the decision to end his own life. Wylie then attempted suicide again.

Jennings then travelled to Mexico to source the drug Nembutal (which is illegal in Australia) for the purpose of ending Wylie’s life. Wylie was provided with the Nembutal, drank it voluntarily and died. Justins and Jennings then concocted alibis and denied any connection with Wylie’s death. Prior to Wylie’s death, and with Justins’ assistance, Wylie had changed his will to provide Justins with a much greater benefit, to the exclusion of Wylie’s daughters.

The jury must have been satisfied that Wylie lacked capacity to make an informed decision to end his life and  found Justins guilty of manslaughter. She received a sentence of 2.5 years imprisonment with a non-parole period of 22 months to be served by periodic detention. Justins’ conviction was overturned on appeal and she pleaded guilty to the lesser offence of aiding and abetting suicide. She received no further punishment as, by that time, she had served 22 months in prison. Jennings committed suicide prior to being sentenced.

Further resources

Publications

Ben White and Lindy Willmott, Future of assisted dying reform in Australia. Australian Health Review (2018).

Cameron Stewart (2018) ‘Euthanasia, Suicide and Assisted Dying’. In Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (3rd ed, Law Book Co) pp 526-570.

Willmott, Lindy & White, Ben (2017) Assisted dying in Australia: A values-based model for reform. In Freckelton, Ian & Petersen, Kerry (Eds.) Tensions and traumas in health law. Federation Press, Sydney, pp. 479-510.

Andrew McGee and Franklin Miller, Advice and care for patients who die by voluntarily stopping eating and drinking is not assisted suicide (2017) 15(222) BMC Medicine

Willmott, Lindy, White, Ben, Stackpoole, Chris, Purser, Kelly, and McGee, Andrew. (2016). (Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics University of New South Wales Law Journal 39(1), pp. 1-46.

Bhatia, Neera, White, Ben, & Daliens, Luc. (2016). How should Australia respond to media-publicised developments on euthanasia in Belgium? Journal of Law and Medicine, 23(4), pp. 835-848.

Douglas, Bob, Willmott, Lindy, & White, Ben. (2013). The right to choose an assisted death: Time for legislation? Australia21, Weston, ACT.

White, Ben & Willmott, Lindy. (2012). How should Australia regulate voluntary euthanasia and assisted suicide? Journal of Law and Medicine20, pp. 410-438.

Downie, Jocelyn & White, Ben. (2012). Prosecutorial discretion in assisted dying in Canada: A proposal for charging guidelines. McGill Journal of Law and Health6(2), pp. 113-172.

White, Ben & Downie, Jocelyn. (2012). Prosecutorial guidelines for voluntary euthanasia and assisted suicide: Autonomy, public confidence and high quality decision-making. Melbourne University Law Review36, pp. 656-705.

Willmott, Lindy & White, Ben. (2003). Private thoughts of public representatives: Assisted death, voluntary euthanasia and politicians. Journal of Law and Medicine11(1), pp. 77-92.