Pursuant to the Consent to Medical Treatment and Palliative Care Act 1995 (SA) a medical practitioner responsible for the care of a patient in the terminal phase of a terminal illness is under no duty to use or continue to use life sustaining measures if the effect would be merely to prolong life in a persistent vegetative state or moribund state without any real prospect of recovery [s 17(2)(a)]. This is the case even if the patient or the patient's representative requests the use or continuation of life sustaining measures. However, if the patient or their representative requests that life sustaining measures be withdrawn, the medical practitioner must withdraw them [s 17(2)(b)].

Section 17(1) further protects medical practitioners responsible for, or participating in, the care of a patient in the terminal phase of a terminal illness from civil and criminal liability where the administration of medical treatment with the intention of relieving pain or distress has the incidental effect of hastening the death of the person. This section applies provided that the medical treatment is provided:

In the circumstances above, a doctor who withholds medical support with or without the consent of the patient or their representative is not said to have caused death; the death is technically from 'natural causes'. The Criminal Law Consolidation Act 1935 (SA) does not relieve a medical practitioner from the consequences of a negligent decision as to whether or not the patient is suffering from a terminal illness.

Sometimes it is necessary for medical decisions to be made for a person who has impaired decision making capacity. This means another person or authority may need make a decision about the person's medical treatment, or the withdrawal of medical treatment, on their behalf (see When someone 16 or over can't consent).  

People often wish to have some say in what treatment they receive, or don’t want to receive, in these situations. A competent adult can make an advance care directive appointing a substitute decision maker and outlining their wishes in anticipation of losing decision making capacity (see Advance Care Directives).

From 31 January 2023 the Voluntary Assisted Dying Pathway (‘the pathway’) is available to eligible South Australians pursuant to the Voluntary Assisted Dying Act 2021 (SA) (‘the Act’). This is the only legal way to access any form of euthanasia in South Australia.

The pathway provides an important choice for eligible people at the end of their life. It is entirely voluntary: a person who has commenced the pathway may decide at any time not to continue [ss 30 and 62]. Even after the medication has been delivered, a person may choose not to use it [ss 74 and 75].

Voluntary assisted dying is also deemed not to be palliative care [s 5, see also section 17(1) under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) and Care when dying].

The SA Health booklet Knowing your choices: Information for people considering voluntary assisted dying provides comprehensive information on this topic.

Care Navigator Service

The South Australian Voluntary Assisted Dying Care Navigator Service is available to assist people considering voluntary assisted dying, their family, friends and carers, health practitioners and health service providers to navigate the Voluntary Assisted Dying Pathway. They can provide general information about end of life care and the pathway, individualised support, assistance connecting people with appropriate health practitioners, and access to support packages.

The Care Navigator Service can be contacted on 0403 087 390 or by email to Health.VADCareNavigators@sa.gov.au.

Eligibility

A person is only eligible to access voluntary assisted dying under the Act if two medical practitioners confirm that the person [s 26]:

Aperson is presumed to have decision making capacity unless there is evidence to the contrary [s 4(2)]. If a person is assessed as no longer having decision making capacity, then the pathway process stops.

Only very limited eligibility decisions are open to review – see Reviewable decisions.

Mental illness or disability (as defined in the Mental Health Act 2009 (SA) and Disability Inclusion Act 2018 (SA) respectively) are not sufficient, on their own, to meet the pathway eligibility requirements [s 26]. A diagnosis of depression does not necessarily mean that a person who would otherwise be eligible is prevented from accessing voluntary assisted dying.

For more information about the pathway, see the SA Health Eligibility for people considering voluntary assisted dying webpage or the SA Health Knowing your choices: Information for people considering voluntary assisted dying booklet.

The first request

A person considering voluntary assisted dying must make a first request to a health practitioner, such as a doctor, nurse or specialist. The request must be clear and unambiguous, and made by the person personally [s 29].

Registered health practitioners must not initiate a discussion about voluntary assisted dying [s 12]. Complaints about breaches of this restriction may be made to the Australian Health Practitioner Regulation Agency [s 92].

A first request can be made verbally, by gestures or by other means of communication available to the person such as through an interpreter. A person has a right to use an interpreter throughout the pathway process [s 7]. An interpreter must be appropriately accredited, and must not be a family member of the person, a beneficiary under a will of the person or otherwise in any material way benefit from the death of the person, or be involved in health care services or professional care services of the person [see the SA Health Communication support webpage].

Pathway process

The pathway process commences following the first request. There are 11 steps in the Voluntary Assisted Dying Pathway [s 9 and Parts 4, 5 and 6]:

Pursuant to Part 5 of the Act, voluntary assisted dying permits are generally for self-administration. In circumstances where a person is unable to physically self-administer and digest the medication, a practitioner administration permit may be granted either initially, or following the grant of a self-administration permit and the subsequent decline of the person [s 66 and Part 5 Division 3].

Most medical consultations throughout the pathway will need to take place in person, as certain information about the pathway is not legally permitted over a carriage service such as phone or video call [Criminal Code Act 1995 (Cth), see also the SA Health Discussing voluntary assisted dying with patients webpage].

For more information about the pathway, see the SA Health Voluntary Assisted Dying Pathway webpage or the SA Health Knowing your choices: Information for people considering voluntary assisted dying booklet.

Interaction with care directives

A person cannot make an effective request for voluntary assisted dying in an advance care directive, as the directive will only take effect on the impairment of the person’s decision making capacity [Advance Care Directives Act 2013 (SA) ss 7A and 12].

If it is intended that voluntary assisted dying medication will be taken, any advance care directive or resuscitation plan should be amended to prevent life saving measures. This is to ensure that medical staff are not required to comply with a directive or plan requiring life saving measures after the medication has been taken.

Contact person

A contact person can only be appointed by a person after making a final request for voluntary assisted dying [ss 57 and 58]. The contact person must:

Conscientious objection

Registered health practitioners, as well as operators of certain health service establishments (i.e. private hospitals) and certain residential facilities (i.e. aged care facilities), may conscientiously object to voluntary assisted dying and can refuse to provide information or services associated with voluntary assisted dying [ss 10 and 11].

Residential facilities which conscientiously object cannot hinder a permanent resident's access to voluntary assisted dying medication at the facility and must allow reasonable access for a medical practitioner to attend the facility to accept a voluntary assisted dying request and to administer the medication where there is a practitioner administration permit. There is an obligation on residential facilities to facilitate the transfer of non-permanent (temporary) residents to another facility where they can access voluntary assisted dying and the voluntary assisted dying medication, unless the transfer would not be considered to be reasonable under the Act. If a transfer is unreasonable, the resident is treated as a permanent resident [see Part 2 for further details, including the considerations to be taken into account in determining if a transfer is reasonable in the circumstances].

A health practitioner who is a conscientious objector is not legally required to provide an appropriate referral to a practitioner or service who can assist with the pathway, such as the Care Navigator Service, but can make a referral.

Some health service establishments are required to arrange for the transfer of a person seeking voluntary assisted dying to another facility if the establishment does not permit the carrying out of any part of the pathway at the premises on the basis of conscientious objection [s 11 and Part 2 of the Act].

Death from voluntary assisted dying

The death of a person from voluntary assisted dying is not taken to be death by suicide [ss 5, 6 and 97]. The death certificate will make no mention of voluntary assisted dying for privacy reasons, and may record the cause of death as the underlying condition which entitled the person to access the pathway [see Voluntary Assisted Dying Clinical Guideline for Health Practitioners].

Offences

The Voluntary Assisted Dying Act 2021 (SA) prescribes several offences including the misuse of medication under the Act [see Voluntary assisted dying offences].

Any euthanasia or assisted suicide outside the strict requirements of the pathway is likely to constitute murder or aiding, abetting or counselling a person to commit suicide under the Criminal Law Consolidation Act 1935 (SA) [ss 11 and 13A].

Section 85 of the Voluntary Assisted Dying Act 2021 (SA) prescribes that the following eligibility requirements are ‘reviewable decisions’:

An application for review of a reviewable decision may be made to the South Australia Civil and Administrative Tribunal (‘SACAT’) by the person to whom the decision relates, or a family member of the person or any other person SACAT is satisfied has sufficient interest in the matter [s 85(2) and Voluntary Assisted Dying Regulations 2022 (SA)]. An application for review to SACAT must be made within 28 days after the date of the reviewable decision or such longer time allowed by SACAT. Given the nature of the pathway, care should be taken to bring an application without delay.

Both the coordinating and consulting doctors completing assessments must have completed the approved training before assessing eligibility [ss 35 and 44]. Either doctor can also refer a particular question to a specialist for a more qualified opinion (i.e. to determine capacity or life expectancy) [ss 36 and 45]. If a specialist opinion has been sought, this may have an impact on the outcome of any review.

All pathway assessments, applications and permits are suspended while the decision is being reviewed [s 87]. An application for review is deemed to have been withdrawn if the person seeking voluntary assisted dying has died [s 88].

The Voluntary Assisted Dying Review Board does not reconsider reviewable decisions and is instead tasked with overseeing voluntary assisted dying.

If you are thinking about applying for a review with SACAT, you should seek legal advice. You can call the free Legal Help Line on 1300 366 424.

For more information about the reviewing decisions at SACAT, see State administrative appeals.