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House of Assembly - Fifty-Second Parliament, First Session (52-1)
2011-03-10 Daily Xml
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CRIMINAL LAW CONSOLIDATION (MEDICAL DEFENCES—END OF LIFE ARRANGEMENTS) AMENDMENT BILL

Introduction and First Reading

The Hon. S.W. KEY (Ashford) (10:32): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. S.W. KEY (Ashford) (10:33): I move:

That this bill be now read a second time.

This bill, the Criminal Law Consolidation (Medical Defences—End of Life Arrangements) Amendment Bill, seeks to amend the Criminal Law Consolidation Act 1935. The aim is to insert a new section in the act that addresses criminal liability in relation to end-of-life arrangements; this is when a treating doctor, at a patient's request, ends that person's life. The new section provides a defence for that doctor if they are charged with criminal offences arising out of the ending, or intended ending, of the life of that patient. The patient, or 'prescribed person', is an adult person of sound mind who is suffering from an illness, injury or medical condition that irreversibly impairs that person's quality of life so that the life has become intolerable to that person.

In this bill, 'medical practitioner' means a person, other than a medical student, registered under the Health Practitioner Regulation National Law to practise in the medical profession. A 'treating practitioner' of a prescribed person is the medical practitioner treating that person for their irreversible illness, injury or medical condition, or a medical practitioner currently responsible for the primary care of the prescribed person. As part of their defence, a doctor, if charged, would need to provide proof that the person asked the doctor to end their life and that, in those exceptional circumstances, that was a reasonable response to the suffering of the person. Here it will be expected that the palliative care measures had not effectively reduced the person's suffering to an acceptable level to that person.

A similar defence is conferred to the charge of aiding, abetting or counselling suicide, or attempted suicide, of a prescribed person by the treating doctor. The bill also provides a defence for those persons—for example, nurses—who provide support and assistance to the medical practitioner or the treating doctor who ends, or intends to end, the person's life. I believe it is important that these workers also have a defence. There is also a provision for an assistant to have a defence, even if the doctor is convicted of an offence. This is because the assistant, acting in good faith and in the ordinary course of their duties, is not expected to be responsible for the doctor's conduct.

I need to clarify what I mean by the intention of ending one's life. The intention of ending the prescribed person's life in this context provides a defence to the fact that, for some reason, the death does not ensue from the administration of drugs by the treating doctor or the primary medical practitioner. I believe that this bill is relevant to the Australian Medical Association's (AMA) statement of values, where it states:

Promote and advance ethical behaviour by the medical profession and protect the integrity and independence of the doctor/patient relationship

Further, I am advised that the AMA Position Statement on the Role of the Medical Practitioner in End of Life Care—2007 states:

10.3 All patients have a right to receive relief from pain and suffering, even where that may shorten their life.

10.4 While for most patients in the terminal stage of an illness, pain and other causes of suffering can be alleviated, there are some instances where satisfactory relief of suffering cannot be achieved.

It is important to note that this bill does not decriminalise murder, manslaughter or assisting someone to commit suicide, nor is it a bill that supports voluntary euthanasia. Voluntary euthanasia, as we know, is not allowed under the Criminal Law Consolidation Act, and we do not have laws in this state that support voluntary euthanasia.

What this bill does is provide a defence for persons—treating doctors and medical practitioners and their assistants—providing primary care to a prescribed person should they be charged with hastening or bringing about the death, or intending to do so, of a patient suffering at the end of their life. I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill inserts new section 13B into Part 3 Division 1 of the Criminal Law Consolidation Act 1935 (that being the Division dealing with homicide). In short the new section recognises that the ending of a patient's life by a doctor is, in certain limited circumstances, a course of conduct acceptable to the community.

The new section does this by providing defences for certain persons charged with criminal offences arising out of the ending, or intended ending, of the life of an adult person of sound mind who is suffering from an illness, injury or medical condition that irreversibly impaired the person's quality of life so that life had become intolerable to that person (in the Bill called a 'qualifying illness'). It is worth noting that the proposed section does not exempt voluntary euthanasia from the operation of the CLCA, rather it provides a defence to offences against the homicide Division and associated offences, requiring a defendant to prove certain matters in a court before he or she is acquitted of the offence. In making out a defence under the section, the defendant is required to prove matters on the balance of probabilities; this is consistent with the evidentiary standards applying to such defences generally.

In other words, new section 13B is not a scheme that provides for a positive right to access voluntary euthanasia, nor does it otherwise legalise or decriminalise voluntary euthanasia.

Subsection (1) deals with a defendant who was the doctor who actually administered drugs to a person so as to end their life. To make out the defence conferred under the subsection, the defendant must first prove that he or she was the person's treating practitioner (a term defined in subsection (7)). This requirement ensures that the doctor patient relationship exists outside of the voluntary euthanasia context; ie, the person cannot just approach any doctor and request that the doctor administer euthanasia to them. The doctor must be treating the person for the qualifying illness etc. Second, the defendant must prove that the patient was in fact an adult person of sound mind who is suffering from a qualifying illness. Third, the defendant must prove to the court that the person expressly requested that the doctor administer the drugs bringing about his or her death. To meet their obligation, the doctor will need to produce evidence of that fact, which will necessitate good record keeping practices on the doctor's part; however, the section does not prescribe what form such evidence must take. Finally, the defendant must prove to the court that ending the patient's life was, in the circumstances, a reasonable response to the suffering of the person.

Whilst what is a reasonable response is ultimately a question of fact for the court to determine on the particular facts of the case, the Bill (in subsection (5)) offers some assistance with a statement that Parliament intends that bringing about the end of a person's life who is suffering from a qualifying illness is, in exceptional circumstances (and in particular where palliative care measures have not effectively reduced the person's suffering to an acceptable level) a reasonable response to their suffering. Having made out the elements of the defence, the court would be entitled to acquit the defendant.

Subsection (2) confers a similar defence to charge of aiding, abetting or counselling suicide or attempted suicide of a person. The main difference between the two subsections is that aiding etc. covers an indeterminate range of conduct, and hence is cast in more general terms. However, the defendant (who again is the treating practitioner of the prescribed person) will still need to prove the specified elements before he or she can make out their defence.

Subsection (3) operates to provide a defence to those persons (e.g. nurses and hospital administration staff) who could be charged with an offence that consists of assisting the doctor to end a person's life. That is, it is generally an offence to help someone else to commit an offence, and because this section provides defences, rather than exemptions, it is still possible to charge such an assistant with an offence. That would result in an obvious injustice if the doctor who ends the life of a person suffering from a qualifying illness can avail themselves of a defence, but the nurse who hands him or her the syringe could not. So, paragraph (a) provides that if the doctor is acquitted of an offence, so the assistant will be. However, paragraph (b) allows an assistant a defence even where the doctor is convicted of an offence. This is because the assistant, acting in good faith in the ordinary course of his or her duties, should not be expected to be responsible for the doctor's conduct. If the defendant wishes to use the defence in paragraph (b), however, he or she must prove that his or her conduct was in fact done in good faith and in the ordinary course of his or her duties, and that ending the patient's life was a reasonable response to his or her suffering.

Subsection (6) extends the effect of the defence: if a person is acquitted (having made out a defence under the section) then he or she incurs no civil liability, including in disciplinary proceedings, in relation to the conduct forming the basis of the offence with which they were charged provided the conduct was done in good faith and without negligence. However, should the conduct have been negligent, an injured party will still be able to bring proceedings to recover their loss, even if the defendant was acquitted. The subsection also allows a court that acquits a defendant to make ancillary orders if necessary to cover unforeseen effects of the defendant having been charged.

Debate adjourned on motion of Dr McFetridge.

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