Rights of the Terminally Ill Act 1995

This Act may be cited as the Rights of the Terminally Ill Act.

This Act shall come into operation on a date to be fixed by the

Administrator by notice in the Gazette.

In this Act, unless the contrary intention appears:

assist, in relation to the death or proposed death of a patient, includes the prescribing of a substance, the preparation of a substance and the giving of a substance to the patient for self administration, and the administration of a substance to the patient.

certificate of request means a certificate in or to the effect of the form in the Schedule that has been completed, signed and witnessed in accordance with this Act.

health care provider, in relation to a patient, includes a hospital, nursing home or other institution (including those responsible for its management) in which the patient is located for care or attention and any nurse or other person whose duties include or directly or indirectly relate to the care or medical treatment of the patient.

illness includes injury or degeneration of mental or physical faculties.

medical practitioner means a medical practitioner who has been entitled to practise as a medical practitioner (however described) in a State or a Territory of the Commonwealth for a continuous period of not less than 5 years and who is resident in, and entitled under the Medical Act to practise medicine in, the

Territory.

qualified psychiatrist means:

a person entitled under a law of a State or Territory of the

Commonwealth to practise as a specialist in the medical specialty of psychiatry;

a specialist whose qualifications are recognised by the Royal

Australian and New Zealand College of Psychiatrists as entitling the person to fellowship of that College; or

a person employed by the Commonwealth or a State or Territory of the Commonwealth, or an Agency or authority of the Commonwealth or a

State or Territory, as a specialist or consultant in the medical specialty of psychiatry.

terminal illness, in relation to a patient, means an illness which, in reasonable medical judgment will, in the normal course, without the application of extraordinary measures or of treatment unacceptable to the patient, result in the death of the patient.

Part 2 Request for and giving of assistance

A patient who, in the course of a terminal illness, is experiencing pain, suffering and/or distress to an extent unacceptable to the patient, may request the patient’s medical practitioner to assist the patient to terminate the patient’s life.

A medical practitioner who receives a request referred to in section 4, if satisfied that the conditions of section 7 have been met, but subject to section 8, may assist the patient to terminate the patient’s life in accordance with this Act or, for any reason and at any time, refuse to give that assistance.

A person shall not give or promise any reward or advantage (other than a reasonable payment for medical services), or by any means cause or threaten to cause any disadvantage, to a medical practitioner or other person for refusing to assist, or for the purpose of compelling or persuading the medical practitioner or other person to assist or refuse to assist, in the termination of a patient’s life under this Act.

Penalty: $10,000.

A person to whom a reward or advantage is promised or given, as referred to in subsection (1), does not have the legal right or capacity to receive or retain the reward or accept or exercise the advantage, whether or not, at the relevant time, he or she was aware of the promise or the intention to give the reward or advantage.

A medical practitioner may assist a patient to end his or her life only if all of the following conditions are met:

the patient has attained the age of 18 years;

the medical practitioner is satisfied, on reasonable grounds, that:

the patient is suffering from an illness that will, in the normal course and without the application of extraordinary measures, result in the death of the patient;

in reasonable medical judgment, there is no medical measure acceptable to the patient that can reasonably be undertaken in the hope of effecting a cure; and

any medical treatment reasonably available to the patient is confined to the relief of pain, suffering and/or distress with the object of allowing the patient to die a comfortable death;

two other persons, neither of whom is a relative or employee of, or a member of the same medical practice as, the first medical practitioner or each other:

one of whom is a medical practitioner who holds prescribed qualifications, or has prescribed experience, in the treatment of the terminal illness from which the patient is suffering; and

the other who is a qualified psychiatrist,

have examined the patient and have:

in the case of the medical practitioner referred to in subparagraph (i), confirmed:

the first medical practitioner’s opinion as to the existence and seriousness of the illness;

that the patient is likely to die as a result of the illness; and

the first medical practitioner’s prognosis; and

in the case of the qualified psychiatrist referred to in subparagraph (ii), confirmed that the patient is not suffering from a treatable clinical depression in respect of the illness;

the illness is causing the patient severe pain or suffering;

the medical practitioner has informed the patient of the nature of the illness and its likely course, and the medical treatment, including palliative care, counselling and psychiatric support and extraordinary measures for keeping the patient alive, that might be available to the patient;

after being informed as referred to in paragraph (e), the patient indicates to the medical practitioner that the patient has decided to end his or her life;

the medical practitioner is satisfied that the patient has considered the possible implications of the patient’s decision to his or her family;

the medical practitioner is satisfied, on reasonable grounds, that the patient is of sound mind and that the patient’s decision to end his or her life has been made freely, voluntarily and after due consideration;

the patient, or a person acting on the patient’s behalf in accordance with section 9, has, not earlier than 7 days after the patient has indicated to his or her medical practitioner as referred to in paragraph (f), signed that part of the certificate of request required to be completed by or on behalf of the patient;

the medical practitioner has witnessed the patient’s signature on the certificate of request or that of the person who signed on behalf of the patient, and has completed and signed the relevant declaration on the certificate;

the certificate of request has been signed in the presence of the patient and the first medical practitioner by another medical practitioner (who may be the medical practitioner referred to in paragraph (c)(i) or any other medical practitioner) after that medical practitioner has discussed the case with the first medical practitioner and the patient and is satisfied, on reasonable grounds, that the certificate is in order, that the patient is of sound mind and the patient’s decision to end his or her life has been made freely, voluntarily and after due consideration, and that the above conditions have been complied with;

where, in accordance with subsection (4), an interpreter is required to be present at the signing of the certificate of request, the certificate of request has been signed by the interpreter confirming the patient’s understanding of the request for assistance;

the medical practitioner has no reason to believe that he or she, the countersigning medical practitioner or a close relative or associate of either of them, will gain a financial or other advantage (other than a reasonable payment for medical services) directly or indirectly as a result of the death of the patient;

not less than 48 hours has elapsed since the signing of the completed certificate of request;

at no time before assisting the patient to end his or her life had the patient given to the medical practitioner an indication that it was no longer the patient’s wish to end his or her life;

the medical practitioner himself or herself provides the assistance and/or is and remains present while the assistance is given and until the death of the patient.

In assisting a patient under this Act a medical practitioner shall be guided by appropriate medical standards and such guidelines, if any, as are prescribed, and shall consider the appropriate pharmaceutical information about any substance reasonably available for use in the circumstances.

Where a patient’s medical practitioner has no special qualifications in the field of palliative care, the information to be provided to the patient on the availability of palliative care shall be given by a medical practitioner (who may be the medical practitioner referred to in subsection (1)(c)(i) or any other medical practitioner) who has such special qualifications in the field of palliative care as are prescribed.

A medical practitioner shall not assist a patient under this Act where the medical practitioner or any other medical practitioner or qualified psychiatrist who is required under subsection (1) or (3) to communicate with the patient does not share the same first language as the patient, unless there is present at the time of that communication and at the time the certificate of request is signed by or on behalf of the patient, an interpreter who holds a prescribed professional qualification for interpreters in the first language of the patient.

A medical practitioner shall not assist a patient under this Act if, in his or her opinion and after considering the advice of the medical practitioner referred to in section 7(1)(c)(i), there are palliative care options reasonably available to the patient to alleviate the patient’s pain and suffering to levels acceptable to the patient.

Where a patient has requested assistance under this Act and has subsequently been provided with palliative care that brings about the remission of the patient’s pain or suffering, the medical practitioner shall not, in pursuance of the patient’s original request for assistance, assist the patient under this Act. If subsequently the palliative care ceases to alleviate the patient’s pain and suffering to levels acceptable to the patient, the medical practitioner may continue to assist the patient under this Act only if the patient indicates to the medical practitioner the patient’s wish to proceed in pursuance of the request.

If a patient who has requested his or her medical practitioner to assist the patient to end the patient’s life is physically unable to sign the certificate of request, any person who has attained the age of 18 years, other than the medical practitioner or a medical practitioner or qualified psychiatrist referred to in section 7(1)(c), or a person who is likely to receive a financial benefit directly or indirectly as a result of the death of the patient, may, at the patient’s request and in the presence of the patient and both the medical practitioner witnesses (and where, in accordance with section 7(4) an interpreter has been used, also in the presence of the interpreter), sign the certificate on behalf of the patient.

A person who signs a certificate of request on behalf of a patient forfeits any financial or other benefit the person would otherwise obtain, directly or indirectly, as a result of the death of the patient.

Notwithstanding anything in this Act, a patient may rescind a request for assistance under this Act at any time and in any manner.

Where a patient rescinds a request, the patient’s medical practitioner shall, as soon as practicable, destroy the certificate of request and note that fact on the patient’s medical record.

A person shall not, by deception or improper influence, procure the signing or witnessing of a certificate of request.

Penalty: $20,000 or imprisonment for 4 years.

A person found guilty of an offence against subsection (1) forfeits any financial or other benefit the person would otherwise obtain, directly or indirectly, as a result of the death of the patient, whether or not the death results from assistance given under this Act.

Part 3 Records and reporting of death

A medical practitioner who, under this Act, assists a patient to terminate the patient’s life shall file and, subject to this Act, keep the following as part of the medical record of the patient:

a note of any oral request of the patient for such assistance;

the certificate of request;

a record of the opinion of the patient’s medical practitioner as to the patient’s state of mind at the time of signing the certificate of request and certification of the medical practitioner’s opinion that the patient’s decision to end his or her life was made freely, voluntarily and after due consideration;

the reports of the medical practitioner and qualified psychiatrist referred to in section 7(1)(c);

a note by the patient’s medical practitioner:

certifying as to the independence of the medical practitioner and qualified psychiatrist referred to in section 7(1)(c) and the residential and period of practice qualifications of the patient’s medical practitioner;

indicating that all requirements under this Act have been met;

indicating the steps taken to carry out the request for assistance; and

including a notation of the substance prescribed,

and such other information, if any, as is prescribed.

Penalty: $10,000 or imprisonment for 2 years.