HE AUSTRALIAN CASE OF A
The common law in Australia in respect of assisted suicide is best stated in Hunter and New England Area Health Service v A [2009] NSWSC 761 (“A”). This case concerned the capacity of individuals to make Advance Care Directives, but did not specifically consider assisted suicide.
Mr A was a Jehovah’s Witness and had been admitted to emergency in a critical state. His condition deteriorated and he was kept alive by mechanical ventilation and kidney dialysis. The hospital became aware of an Advance Care Directive, prepared by Mr A one year prior to this incident. Mr A’s Advance Care Directive indicated that Mr A would refuse dialysis, which in the current circumstances would undoubtedly hasten his death. The hospital sought a declaration from the Court as to the validity of Mr A’s Advance Care Directive.
In A, McDougal J held that any adult who has ‘capacity’ can refuse medical treatment. Further, that there is a general rebuttable presumption that an adult has ‘capacity’. McDougal J stated that “it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision” (per McDougal J at [40]).
Similar to the UK position, if an individual has capacity, it does not matter that the person’s decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made by a capable adult voluntarily, and in the absence of any vitiating factors. Vitiating factors include, for example, the individual’s decision being overborne or the result of undue influence or misrepresentations.
McDougal J made a declaration that the Advance Care Directive was valid.
