[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 79
As laid on the table and read a first time, 16 February
2005
South Australia
A Bill For
An Act to provide for the administration of medical
procedures to assist the death of patients who are hopelessly ill, and who have
expressed a desire for the procedures subject to appropriate safeguards.
Contents
1 Short title
2 Commencement
3 Objects
4 Interpretation
5 Who may request voluntary euthanasia
6 Kinds of request
7 Information to be given before
formal request is made
8 Form of request for voluntary
euthanasia
9 Procedures to be observed in the
making and witnessing of requests
10 Appointment of trustees
11 Revocation of request
12 Register of requests for voluntary
euthanasia
13 Registrar's powers of inquiry
14 Administration of voluntary euthanasia
15 Person may decline to administer or
assist the administration of voluntary euthanasia
16 Protection from liability
17 Restriction on publication
18 Report to coroner
19 Cause of death
20 Insurance
21 Offences
22 Dignity in Dying Act Monitoring
Committee
23 Annual report to Parliament
24 Regulations
Schedule 1—Current request for voluntary euthanasia
Schedule 2—Advance request for voluntary euthanasia
Schedule 3—Certificate of confirmation
Schedule 4—Report to State
Coroner
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Dignity in Dying Act 2005.
This Act will come into operation 6 months after the date of
assent or on an earlier date fixed by proclamation.
The objects of this Act are—
(a) to give competent adults the right to make informed choices
about the time and manner of their death should they become hopelessly ill;
(b) to ensure that hopelessly ill people who have voluntarily
requested euthanasia can obtain appropriate and humane medical assistance to
hasten death;
(c) to
ensure that people who may want to request euthanasia are given adequate
information before making their request (including information about palliative
care) and are not subject to duress or other undue pressure to make a request;
(d) to ensure that the administration of euthanasia is subject
to other appropriate safeguards and supervision;
(e) to recognise the right of medical practitioners and other
persons to refuse to participate in the administration of euthanasia.
In this Act—
adult means of or above the age of 18 years;
advance request—see section 6(1);
current request—see section 6(1);
hopelessly ill—a person is hopelessly ill if the person has an injury or
illness—
(a) that will result, or has resulted, in serious mental
impairment or permanent deprivation of consciousness; or
(b) that seriously and irreversibly impairs the person's quality
of life so that life has become intolerable to that person and there is no
realistic chance of clinical improvement;
medical practitioner means a person registered as a medical
practitioner under the Medical Practitioners Act 1983;
palliative care specialist means a medical practitioner who is
registered on the specialist register under the Medical Practitioners
Act 1983 and whose principal area of practice is the provision of
palliative care;
Registrar—see section 12(2);
voluntary euthanasia means the administration of medical
procedures, in accordance with this Act, to assist the death of a hopelessly
ill person in a humane way.
5—Who may request voluntary euthanasia
An adult person who is of sound mind may make a formal request for
voluntary euthanasia.
(1) A formal request for voluntary euthanasia
must be of one of the following kinds:
(a) a request (a current request) by a hopelessly
ill person that is intended to be effective without further deterioration of
the person's condition;
(b) a request (an advance request) by a person who
is not hopelessly ill that is intended to take effect when the person who makes
the request becomes hopelessly ill or after the person becomes hopelessly ill
and the person's condition deteriorates to a point described in the request.
(2) A
formal request for voluntary euthanasia overrides an earlier formal request
and, in particular, a current request for voluntary euthanasia overrides an
earlier advance request.
7—Information to be given before formal request is made
(1) If a person proposes to make a current
request or an advance request for voluntary euthanasia, a medical practitioner
must, before the formal request is made, ensure that the person is fully
informed—
(a) if the person is hopelessly ill or
suffering from an illness that may develop into a hopeless illness—
(i) of the diagnosis and prognosis of the person's illness; and
(ii) of the forms of treatment that may be available and their
respective risks, side effects and likely outcomes; and
(iii) of the extent to which the effects of the illness could be
mitigated by appropriate palliative care; and
(b) if
the proposed request is a current request—of the proposed voluntary euthanasia
procedure, risks associated with the procedure and feasible alternatives to the
procedure (including the possibility of providing appropriate palliative care
until death ensues without administration of voluntary euthanasia); and
(c) if the proposed request is an advance request—of feasible
voluntary euthanasia procedures and the risks associated with each of them.
(2) If
a medical practitioner providing a person with information in accordance with
subsection (1)(a)(iii) is not a palliative care specialist, the medical
practitioner must, if reasonably practicable, consult a palliative care
specialist about the person's illness and the extent to which its effects would
be mitigated by appropriate palliative care before giving the person this
information.
8—Form of request for voluntary euthanasia
(1) A formal request for voluntary euthanasia
must be made in writing—
(a) in the case of a current request—in the form prescribed by
Schedule 1; or
(b) in the case of an advance request—in the form prescribed by
Schedule 2.
(2) However, if the person making the request
is unable to write, the person may make the request orally in which case the
appropriate form—
(a) must be completed by the witnesses on behalf of the person
in accordance with the person's expressed wishes; and
(b) must, instead of the person's signature, bear an endorsement
signed by each witness to the effect that the form has been completed by the
witnesses in accordance with the person's expressed wishes.
(3) If
practicable, a request for voluntary euthanasia that has been made orally must
be recorded on videotape.
9—Procedures to be observed in the making and witnessing of requests
(1) A
formal request for voluntary euthanasia must be made in the presence of a
medical practitioner and two adult witnesses.
(2) The medical practitioner and both of the
witnesses must certify that the person who made the request—
(a) appeared to be of sound mind; and
(b) appeared to understand the nature and implications of the
request; and
(c) did not appear to be acting under duress.
(3) The medical practitioner must also certify—
(a) that
the medical practitioner gave the person requesting voluntary euthanasia the
information required under this Act before the formal request was made; and
(b) in the case of a current request—that the medical
practitioner, after examining the person for symptoms of depression—
(i) has no reason to suppose that the person is suffering from
treatable clinical depression; or
(ii) if the person does exhibit symptoms of depression—is of the
opinion that treatment for depression, or further treatment for depression, is
unlikely to influence the person's decision to request voluntary euthanasia.
Note—
see section 7.
(1) A
person who makes an advance request for voluntary euthanasia may, in the
instrument of request, appoint one or more persons to be trustees of the
request.
(2) A
person is only eligible for appointment as a trustee of a request for voluntary
euthanasia if the person is an adult.
(3) The functions of a trustee of the request
are—
(a) to satisfy herself or himself that the preconditions for
administration of voluntary euthanasia have been satisfied; and
(b) to make any necessary arrangements to ensure, as far as
practicable, that voluntary euthanasia is administered in accordance with the
wishes of the person who requested it.
(4) If
a person appoints two or more persons as trustees of a request for voluntary
euthanasia, the instrument of request must indicate the order of appointment
and, in that case, if the person designated first in order of appointment is
unavailable, the person designated second in order of appointment is to act as
trustee of the request, if the first and the second are not available, the
person designated third in order of appointment is to act as trustee of the
request, and so on, but the instrument of request may not provide for two or
more persons to act jointly as trustees of the request.
(1) A
person may revoke a request for voluntary euthanasia at any time.
(2) A
written, oral, or other indication of withdrawal of consent to voluntary
euthanasia is sufficient to revoke the request even though the person may not
be mentally competent when the indication is given.
(3) A person who, knowing of the revocation of
a request for voluntary euthanasia, deliberately or recklessly fails to
communicate that knowledge to the Registrar is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
12—Register of requests for voluntary euthanasia
(1) The
Minister must maintain a register of requests for voluntary euthanasia (the Register).
(2) The
Register will be administered by a suitable person (the Registrar)
assigned to administer the Register by the Minister.
(3) If
a person who has made a formal request for voluntary euthanasia applies to the
Registrar for registration of the request, the Registrar must, on receipt of a
copy of the request, register the request in the Register.
(4) If
the Registrar is satisfied that a request for voluntary euthanasia has been
revoked, the Registrar must register the revocation in the Register.
(5) The Registrar must, at the request of a
medical practitioner who is attending a hopelessly ill patient—
(a) inform the medical practitioner whether a request by the
patient for voluntary euthanasia is registered in the Register; and
(b) inform the medical practitioner whether any revocation of
the patient's request for voluntary euthanasia is registered in the Register;
and
(c) if a request by the patient for voluntary euthanasia is
registered in the Register and no revocation of that request is registered in
the Register—give the medical practitioner a copy of the registered request.
(6) No
fee may be charged in respect of a duty of the Registrar under this section.
(7) The
regulations may prescribe conditions for access to the Register.
13—Registrar's powers of inquiry
(1) The
Registrar may conduct an inquiry to determine whether information recorded, or
proposed to be recorded, in the Register is reliable.
(2) The
Registrar may, by notice given to a person who may be able to provide
information relevant to an inquiry under this section, require the person to
answer specified questions or to provide other information within a time and in
a way specified in the notice.
(3) A person who fails, without reasonable
excuse, to comply with a notice under subsection (2) is guilty of an
offence.
Maximum penalty: $1 250.
14—Administration of voluntary euthanasia
(1) A medical practitioner may administer
voluntary euthanasia to a patient if—
(a) the patient is hopelessly ill; and
(b) the patient has made a request for voluntary euthanasia
under this Act and there is no reason to believe that the request has been
revoked; and
(c) the patient has not expressed a desire to postpone the
administration of voluntary euthanasia; and
(d) the medical practitioner, after examining the patient—
(i) has no reason to suppose that the patient is suffering from
treatable clinical depression; or
(ii) if
the patient does exhibit symptoms of depression—is of the opinion that
treatment for depression, or further treatment for depression, is unlikely to
influence the patient's decision to request voluntary euthanasia; and
(e) if the patient is mentally incompetent but has appointed a
trustee of the request for voluntary euthanasia, the trustee is satisfied that
the preconditions for administration of voluntary euthanasia have been
satisfied; and
(f) since
the time of the patient's request for voluntary euthanasia, another medical
practitioner who is not involved in the day to day treatment or care of the
patient has personally examined the patient and has given a certificate in the
form prescribed by Schedule 3 (the certificate of confirmation)
certifying—
(i) that the patient is hopelessly ill; and
(ii) that—
(A) there is no reason to suppose that the patient is suffering
from treatable clinical depression; or
(B) if
the patient does exhibit symptoms of depression—the medical practitioner is of
the opinion that treatment for depression, or further treatment for depression,
is unlikely to influence the patient's decision to request voluntary
euthanasia; and
(g) at least 48 hours have elapsed since the time of the
examination referred to in paragraph (f).
(2) A medical practitioner may only administer
voluntary euthanasia as follows—
(a) by administering drugs in appropriate concentrations to end
life painlessly and humanely; or
(b) by prescribing drugs for self-administration by a patient to
allow the patient to die painlessly and humanely; or
(c) by withholding or withdrawing medical treatment in
circumstances that will result in a painless and humane end to life.
(3) In administering voluntary euthanasia, a
medical practitioner must give effect, as far as practicable, to—
(a) the expressed wishes of the patient; or
(b) if the patient is mentally incompetent, but has appointed a
trustee of the request who is available to be consulted—the expressed wishes of
the trustee (so far as they are consistent with the patient's expressed
wishes).
15—Person may decline to administer or assist the administration of voluntary euthanasia
(1) A
medical practitioner may decline to carry out a request for the administration
of voluntary euthanasia on any grounds.
(2) However,
if a patient who has requested voluntary euthanasia is hopelessly ill and the
medical practitioner who has the care of the patient declines to administer
voluntary euthanasia, the medical practitioner must inform the patient or the
trustee of the patient's request that another medical practitioner may be
prepared to consider the request.
(3) A
person may decline to assist a medical practitioner to administer voluntary
euthanasia on any grounds without prejudice to the person's employment or other
forms of adverse discrimination.
(4) The
administering authority of a hospital, hospice, nursing home or other
institution for the care of the sick or infirm may refuse to permit voluntary
euthanasia within the institution but, if it does so, must take reasonable
steps to ensure that the refusal is brought to the attention of patients
entering the institution.
A medical practitioner who administers voluntary euthanasia in
accordance with this Act, or a person who assists a medical practitioner to
administer voluntary euthanasia in accordance with this Act, incurs no civil or
criminal liability by doing so.
A person must not publish by newspaper,
radio, television or in any other way, a report tending to identify a person as
being involved in the administration of voluntary euthanasia under this Act,
unless—
(a) the person consents to the publication; or
(b) the person has
been charged with an offence in relation to the administration or alleged
administration of voluntary euthanasia.
Maximum penalty: $5 000 or imprisonment for one year.
(1) A medical practitioner who administers
voluntary euthanasia must make a report to the State Coroner within 48 hours
after doing so.
Maximum penalty: $5 000.
(2) The report—
(a) must be in the form prescribed by Schedule 4; and
(b) must be accompanied by—
(i) the request for voluntary euthanasia or, if the request is
registered under this Act, a copy of the request; and
(ii) the certificate of confirmation given by another medical
practitioner.
(3) The
State Coroner must forward to the Minister copies of the reports made under
this section and the accompanying materials.
Note—
see section 14(1)(f).
(1) Death
resulting from the administration of voluntary euthanasia in accordance with
this Act is not suicide or homicide.
(2) If
voluntary euthanasia is administered in accordance with this Act, death is
taken to have been caused by the patient's illness.
(1) An
insurer is not entitled to refuse to make a payment that is payable under a
life insurance policy on death of the insured on the ground that the death
resulted from the administration of voluntary euthanasia in accordance with
this Act.
(2) A person is not obliged to disclose an
advance request for voluntary euthanasia to an insurer, and an insurer must not
ask a person to disclose whether the person has made an advance request for
voluntary euthanasia.
Maximum penalty: $10 000.
(3) This
section applies notwithstanding an agreement between a person and an insurer to
the contrary.
(1) A person who makes a false or misleading
representation in a formal request for voluntary euthanasia or other document
under this Act, knowing it to be false or misleading, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2) A person who, by dishonesty or undue
influence, induces another to make a formal request for voluntary euthanasia is
guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) A
person convicted or found guilty of an offence against this section forfeits
any interest that the person might otherwise have had in the estate of the
person who has made the request for voluntary euthanasia.
22—Dignity in Dying Act Monitoring Committee
(1) The
Minister must establish a committee to be called the Dignity in Dying Act
Monitoring Committee (the Committee).
(2) The Committee will consist of no more than
eight members appointed by the Minister of whom—
(a) one must be a person nominated by the South Australian
Branch of the Australian Medical Association Inc.; and
(b) one must be a person nominated by The Law Society of South
Australia; and
(c) one must be a person nominated by the Palliative Care
Council of South Australia Inc.; and
(d) one must be a person nominated by the South Australian
Voluntary Euthanasia Society Inc.; and
(e) one must be a person nominated by the South Australian
Council of Churches Inc..
(3) The functions of the Committee are—
(a) to monitor and keep under constant review the operation and
administration of this Act; and
(b) to report to the Minister, on the Committee's own initiative
or at the request of the Minister, on any matter relating to the operation or
administration of this Act; and
(c) to make recommendations to the Minister regarding possible—
(i) amendments to this Act; or
(ii) improvements to the administration of this Act,
which, in the opinion of the Committee, would further the
objects of this Act.
(4) The
Minister must provide the Committee with a copy of each report received from
the Coroner under section 18(3).
(5) A
member of the Committee holds office on such conditions and for such term as
the Minister determines.
(6) A
member of the Committee is entitled to such allowances and expenses as the
Minister may determine.
(7) Subject
to directions of the Minister, the Committee may conduct its business in such
manner as it thinks fit.
23—Annual report to Parliament
On or before 30 September in each year, the Minister must make a
report to Parliament on the administration and operation of this Act during the
year that ended on the preceding 30 June.
The Governor may make regulations for the purposes of this Act.