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End of life law in Australia

End of life law can be complicated to navigate as each state and territory in Australia is different. To assist the aged care sector the ELDAC website has been created.

There are a number of education programs, fact sheets, and case scenario examples to peruse. The fact sheet I’ve chosen to explore with you today is End of life law in Australia: An overview for the aged care sector. I recommend that you access the site and download it yourself as what I have provided is a synopsis. This fact sheet would make for an interesting discussion at your next staff meeting.

What is end of life law?

“Broadly, end of life law covers legal issues that are relevant to medical decisions made at the end of life. There are different views across the palliative, aged care, medical and other health sectors about what ‘end of life’ means. However, end of life law relates to decisions that happen in the ‘last days and months of life’, as well as the planning and decision-making that happens well before this, including before a person has an illness or injury.”

Key areas of end of life law –
1. Capacity and consent to medical treatment

“Every adult has the right to decide what is or is not done to their bodies. For medical treatment to be lawful, a person must consent to it. If that treatment is given without consent, the doctor (or whoever provides it) may be civilly and criminally liable. An exception to this is if the treatment is provided in an emergency.”

Capacity to consent means that the person can comprehend and retain the information as well as contemplate what that issue means to them and weigh up the pros and cons of the information. If a person cannot do this then they cannot consent to treatment.

“There are three ways in which decisions can be made by or for them:
• Before they lost capacity, the person may have made an Advance Care Directive which provides directions about medical treatment.
• A substitute decision-maker can make the decision, generally based on what they believe the person would have wanted, and their best interests.
• A tribunal or the Supreme Court can provide consent or make a treatment decision.”

2. Withholding and withdrawing life-sustaining treatment

“It is lawful for a person with capacity to refuse medical treatment. Health professionals must respect a person’s decision to refuse treatment, and, if directed to, they can legally withhold (not start treatment) or withdraw (stop treatment already started) life-sustaining treatment, even if this might result in the person’s death. It can also be lawful for a person’s substitute decision-maker to ask that life-sustaining treatment be withheld or withdrawn from the person if they can no longer make treatment decisions themselves.”

3. Medication for pain and symptom relief for people with a life-limiting illness (palliative medication)

“Palliative medication is often given to a person with a life-limiting illness who is experiencing pain or symptoms, to maintain or improve their comfort. In some cases, palliative medication may have the unintended effect of hastening the person’s death. If this occurs, the person who provided the medication (usually a doctor or nurse) will not be liable for the person’s death so long as their intention was to relieve pain or symptoms, and not to hasten death.”

4. Futile or non-beneficial treatment

“Futile or non-beneficial treatment is often used to describe treatment which is of no benefit, cannot achieve its purpose, or is not in the person’s best interests. Doctors decide whether or not treatment is futile
on a case-by-case basis, and may withhold or withdraw treatment that is futile or non-beneficial. They have no obligation to provide futile treatment that is not in the person’s best interests, or is inconsistent with good
medical practice. A person or their substitute decision-maker cannot require or demand that futile treatment be given.” Note: in Queensland, if a person lacks capacity the substitute decision-makers consent is required to withhold or withdraw treatment – even if that treatment is futile.

5. Emergency medical treatment

“Generally, it is lawful for a health professional or aged care worker to provide emergency treatment if there is an urgent need for treatment e.g. to save a person’s life, prevent serious damage to health, or prevent significant pain and distress.

Emergency treatment cannot be provided if it has been lawfully refused:
• by the person themselves if they have capacity,
• in a valid Advance Care Directive, or
• by a substitute decision-maker. 

A health professional who provides treatment contrary to a lawful refusal commits an assault on the person.”

Here is the link >> to the section of the ELDAC website where you can read the fact sheet in full as well as investigate the other great information they have on the site.