The Right to Die in Australia

This opinion will initially deal with Australia’s common law position on whether there is a right to die. The author will then address a competent patient’s refusal of treatment, while the patient remains in a competent state. In concluding, the paper will provide a recommendation of how Australia might consider approaching the right to die in the future.

 

So how does one define a right to die? and what constitutes a competent patient?

 

In the Matter of a Ward of Court,[1] Hamilton CJ gave definition to the notion of a right to die by stating: ‘the process of dying is part, and an ultimate inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained…..merely to prolong life…’[2] – the author posits that this could be viewed as a form of self-determination, that is our right to die is determined by our right to live.      

 

With regards to what constitutes a competent patient, Thorpe J in Re C (adult: refusal of medical treatment)[3] stated a three stage competency test that comprises of the patients ability to: (1) take in and retain treatment information, (2) to believe it and (3) to weigh that information, balancing risks and needs – this test would aid in establishing a patient’s capacity or competency to decide on treatment (or not).[4]

 

The right to die in Australia

 

In Australia it is fair to say that substantive issues concerning the scope of the right to die at common law have never really been addressed.[5] The common law in Australia recognizes the right of a patient to self-determination,[6] but as yet there has been no major judicial statement on the power to refuse treatment in Australia, even though the opportunity did present itself in Qumsieh v Guardianship & Administration Board & Pilgrim.[7]  

 

This opinion is supportive of the view that a patient who exercises their right to refuse treatment, is in effect exercising part of a broader right to self-determination, which is a substantial part of what is often meant by the term the right to die.[8] In Schloendorf v Society of New York Hospital,[9] Cardozo J stated: ‘every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages…’.[10]

 

This right to self-determination has been recognised in common law countries including the United States,[11] United Kingdom,[12] Canada[13] and Australia.[14]

 

In essence the right to refuse treatment becomes a right to die when a patient refuses treatment that is necessary to support life. In relation to competent patients, such a decision must be honoured regardless of the reasons for such a decision,[15] even when the decision may appear (for whatever the reason) to have been “badly” made.[16] In Re T (adult: refusal of medical treatment),[17] Lord Donaldson MR succinctly stated: ‘this right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent’.[18]

 

Next week we will be discussing cases involving the right of a patient to refuse treatment. This puts a slightly different angle on the right to die argument as a person who chooses to refuse treatment is indirectly exercising a right to die. These cases shed light on the fact that in Australia there has be no definitive judgement to guide people in this grey area of the law.

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[1] [1995] 2 IRLM 401 (Ir Sup Ct).

[2] I. Kennedy & A. Grubb, op. cit., p.1907.

[3] [1994] 1 All ER 819 (Fam Div) (‘Re C’s Case’).

[4] I. Kennedy & A. Grubb, op. cit., pp.623-4.

[5] C. Stewart, “Advance Directives, The Right To Die and the Common Law: Recent Problems with Blood Transfusions”, (Vol.23 1999), MULR 161 at 183.

[6] Secretary of the Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 232-5 (‘Marion’s Case’).

[7] [1998] VSCA 45 (‘Qumsieh’s Case’).

[8] C. Stewart, “Qumsieh’s Case, Civil Liability and the Right to Refuse Medical Treatment”, (Vol.8 2000), Journal of Law and Medicine 56 at 58.

[9] 105 NE 92, 93 (NY, 1914).

[10] C. Stewart, op. cit., 161 at 165.

[11] Perna v Pirozzi, 457 A 2d 431 (NJ, 1983).

[12] Airedale NHS Trust v Bland [1993] AC 789 (‘Airdale’s Case’); St George’s Healthcare NHS Trust v S; ex parte S [1998] 3 All ER 673.

[13] Nancy B v Hôtel-Dieu de Québec (1992) 86 DLR (4^th) 385.

[14] Marion’s Case; in C. Stewart, op. cit., 161 at 165.

[15] C. Stewart, op. cit., 56 at 59.

[16] Sidaway v Govenors of Bethlem Royal Hospital [1985] AC 871 at 904-5.

[17] [1992] 4 All ER 649; (1992) 9 BMLR 46 (CA); and [1992] 2 Fam 458 at 460 (‘Re T’s Case’).

[18] C. Stewart, op. cit., 56 at 59.