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TASMANIA
DYING WITH DIGNITY BILL 2009
CONTENTS
1. Short Title
2. Commencement
3. Interpretation
4. Act to Bind Crown
5. Request for assistance to voluntarily end life
6. Response of medical practitioner
7. Medical practitioner not to be influenced by extraneous
considerations
8. Conditions under which medical practitioner may assist
9. Requirement to be a Tasmanian resident
10. Palliative Care
11. Sufferer who is unable to sign certificate of request
12. Right to rescind request
13. Improper conduct
14. Medical Records to be kept
[Bill No. 37]
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15. Certification of Death
16. Medical record to be sent to Coroner
17. Coroner may report on operation of Act
18. Construction of Act
19. Certificate of request is evidence
20. Effect on construction of wills, contracts and statutes
21. Insurance or annuity policies
22. Immunities
23. Regulations
24. Act to prevail
Schedule 1 - Certificate of request forms
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(blank for printing purposes)
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DYING WITH DIGNITY BILL 2009
(Brought in by Nicholas James McKim MP)
A BILL FOR
An Act to confirm the right of a person enduring a terminal illness with
profound suffering to request assistance from a medically qualified
person to voluntarily end his or her life in a humane and dignified
manner, to allow for such assistance to be given in certain
circumstances without legal impediment to the person rendering the
assistance, to provide procedural protection against the possibility of
abuse of the rights recognised by this Act, and for related purposes.
Be it enacted by His Excellency the Governor of Tasmania, by and with the
advice and consent of the Legislative Council and House of Assembly, in
Parliament assembled, as follows:
Short Title
1. This Act may be cited as the Dying with Dignity Act 2009.
Commencement
2. This Act commences on the day on which it receives the Royal
Assent.
Interpretation
3. In this Act, unless the contrary intention appears -
`assist', in relation to the death or proposed death of a sufferer,
includes the prescribing of a substance, the preparation of a
substance and the giving of a substance to the sufferer for self
administration, and the administration of a substance to the
sufferer.
`certificate of request' means a certificate in or to the effect of the
form in Schedule 1 that has been completed, signed and
witnessed in accordance with this Act.
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`health care provider', in relation to a sufferer, includes a hospital,
nursing home or other institution (including those responsible
for its management) in which the sufferer 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 sufferer.
`illness' includes injury or degeneration of mental or physical
faculties.
`intolerable suffering' means a profound level of pain and/or distress,
that the sufferer finds intolerable.
`medical practitioner' means a medical practitioner who has been
entitled to practice 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.
`mentally competent' means:
(a) an ability of the sufferer after being given relevant information
to understand the general nature of the illness or condition; and
to understand the benefits and risks of, and to weigh the pros
and cons of, presented medical treatment and palliative care
options as well as a request for assistance to end his or her life;
(b) a capacity of the sufferer to make a decision freely, voluntarily
and after due consideration.
`qualified psychiatrist' means:
(a) 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;
(b) 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
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(c) 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.
`sufferer', means a person who has a terminal illness and experiences
intolerable suffering as a result.
`terminal illness', in relation to a sufferer, 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 sufferer, result in the death of the sufferer.
Act to bind Crown
4. This Act binds the Crown in right of Tasmania and, so far as the
legislative power of Parliament permits, in all its other capacities.
Request for assistance to voluntarily end life
5. A sufferer who, in the course of a terminal illness, is experiencing
pain, suffering and/or distress to an extent unacceptable to the
sufferer, may request the sufferer's medical practitioner to assist the
sufferer to end the sufferer's life.
Response of medical practitioner
6. A medical practitioner who receives a request referred to in section 5,
if satisfied that the conditions of section 8 have been met, but subject
to section 9 and 10, may assist the sufferer to end the sufferer's life in
accordance with this Act or, for any reason and at any time, refuse to
give that assistance.
Medical practitioner not to be influenced by extraneous considerations
7. (1) 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
for refusing to assist, or for the purpose of compelling or persuading
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the medical practitioner to assist or refuse to assist, in the termination
of a sufferer's life under this Act.
Maximum penalty: 100 penalty units.
(2) A medical practitioner 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.
Conditions under which medical practitioner may assist
8. (1) A medical practitioner may assist a sufferer to end his or her life
only if all of the following conditions are met:
(a) the sufferer has attained the age of 18 years;
(b) the medical practitioner is satisfied, on reasonable grounds, that:
(i) the dying person is suffering from an illness that will, in the
normal course and without the application of extraordinary
measures, result in the death of the sufferer; and
(ii) in reasonable medical judgment, there is no medical measure
acceptable to the sufferer that can reasonably be undertaken in the
hope of effecting a cure; and
(iii) any medical treatment reasonably available to the sufferer is
confined to the relief of pain, suffering and/or distress with the
object of allowing the sufferer to die a peaceful death;
(c) 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:
(i) one of which is a medical practitioner who holds prescribed
qualifications, or has prescribed experience, in the treatment of the
terminal illness from which the person is suffering; and
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(ii) the other of which is a qualified psychiatrist;
have examined the sufferer and have:
(iii) in the case of the medical practitioner referred to in
subparagraph (i), confirmed:
(A) the first medical practitioner's opinion as to the existence
and seriousness of the illness; and
(B) that the sufferer is likely to die as a result of the illness; and
(C) the first medical practitioner's prognosis; and
(iv) in the case of the qualified psychiatrist referred to in
subparagraph (ii), confirmed that the sufferer is mentally
competent;
(d) the illness is causing the sufferer intolerable pain or suffering;
(e) the medical practitioner has informed the sufferer of the nature of
the illness and its likely course, and the medical treatment,
including palliative care, counseling and psychiatric support and
extraordinary measures for keeping the sufferer alive, that might
be available to the sufferer;
(f) after being informed of the matters referred to in paragraph (e),
the sufferer indicates to the medical practitioner that the sufferer
has decided to end his or her life;
(g) the medical practitioner is satisfied that the sufferer has
considered the possible implications of the sufferer's decision to
his or her family;
(h) the medical practitioner is satisfied, on reasonable grounds, that
the sufferer is mentally competent and that the sufferer's decision
to end his or her life has been made freely, voluntarily and after
due consideration;
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(i) the sufferer, or a person acting on the sufferer's behalf in
accordance with section 11, has, not earlier than 7 days after the
sufferer 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 sufferer;
(j) the medical practitioner has witnessed the sufferer's signature on
the certificate of request or that of the person who signed on
behalf of the sufferer, and has completed and signed the relevant
declaration on the certificate;
(k) the certificate of request has been signed in the presence of the
sufferer and the first medical practitioner by another medical
practitioner (who may be the medical practitioner referred to in
subparagraph (c)(i) or any other medical practitioner) after that
medical practitioner has discussed the case with the first medical
practitioner and the sufferer and is satisfied, on reasonable
grounds, that the certificate is in order, that the sufferer is
mentally competent and the sufferer'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;
(l) if, 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 sufferer's understanding of the request for
assistance;
(m) 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 sufferer;
(n) not less than 48 hours has elapsed since the signing of the
completed certificate of request;
(o) at no time before assisting the sufferer to end his or her life had
the sufferer given to the medical practitioner an indication that it
was no longer the sufferer's wish to end his or her life;
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(p) 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 sufferer.
(2) In assisting a sufferer under this Act a medical practitioner must be
guided by appropriate medical standards and such guidelines, if any,
as are prescribed, and must consider the appropriate pharmaceutical
information about any substance reasonably available for use in the
circumstances.
(3) If a sufferer's medical practitioner has no special qualifications in
the field of palliative care, the information to be provided to the
sufferer on the availability of palliative care must be given by a
medical practitioner (who may be the medical practitioner referred to
in subparagraph (1)(c)(i) or any other medical practitioner) who has
such special qualifications in the field of palliative care as are
prescribed.
(4) A medical practitioner must not assist a sufferer under this Act if
the medical practitioner or any other medical practitioner or qualified
psychiatrist who is required to communicate with the sufferer does not
share the same first language as the sufferer, 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 sufferer, an interpreter who
holds a prescribed professional qualification for interpreters in the first
language of the sufferer.
Requirement to be a Tasmanian Resident
9. At the request of an adult sufferer, the treating doctor may provide
assistance to that sufferer to end his or her life. However, the treating
doctor may only do so if the treating doctor is satisfied on reasonable
grounds that;
(1) the sufferer is domiciled or ordinarily resident in the State; or
(2) the sufferer has had his or her settled or usual residence in the
State for a minimum of 12 months.
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Palliative Care
10. (1) A medical practitioner must not assist a sufferer under this Act if,
in his or her opinion and after considering the advice of the medical
practitioner referred to in subparagraph 8(1)(c)(i), there are palliative
care options reasonably available to the sufferer to alleviate the
sufferer's pain and suffering to levels acceptable to the sufferer.
(2) If a sufferer has requested assistance under this Act and has
subsequently been provided with palliative care that brings about the
remission of the sufferer's pain or suffering, the medical practitioner
must not, in pursuance of the sufferer's original request for assistance,
assist the sufferer under this Act. If subsequently the palliative care
ceases to alleviate the sufferer's pain and suffering to levels acceptable
to the sufferer, the medical practitioner may continue to assist the
sufferer under this Act only if the sufferer indicates in writing to the
medical practitioner the sufferer's wish to proceed with the request.
Sufferer who is unable to sign certificate of request
11. (1) If a sufferer who has requested his or her medical practitioner to
assist the sufferer to end the sufferer'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 paragraph 8(1)(c), or a person who
is likely to receive a financial benefit directly or indirectly as a result
of the death of the sufferer, may, at the sufferer's request and in the
presence of the sufferer and both the medical practitioner witnesses
(and if, in accordance with subsection 8(4) an interpreter has been
used, also in the presence of the interpreter), sign the certificate on
behalf of the sufferer.
(2) A person who signs a certificate of request on behalf of a sufferer
forfeits any financial or other benefit the person would otherwise
obtain, directly or indirectly, as a result of the death of the sufferer.
Right to rescind request
12. (1) Notwithstanding anything in this Act, a sufferer may rescind a
request for assistance under this Act at any time and in any manner.
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(2) If a sufferer rescinds a request, the sufferer's medical practitioner
must, as soon as practicable, destroy the certificate of request and note
that fact on the sufferer's medical record.
Improper conduct
13. (1) A person must not, by deception or improper influence, procure
the signing or witnessing of a certificate of request.
Maximum penalty: 200 penalty units or imprisonment for 4 years.
(2) 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 sufferer, whether
or not the death results from assistance given under this Act.
Medical Records to be kept
14. A medical practitioner who, under this Act, assists a sufferer to end
the sufferer's life must file and, subject to this Act, keep the following
as part of the medical record of the sufferer:
(1) a note of any oral request of the sufferer for such assistance;
(2) the certificate of request;
(3) a record of the opinion of the sufferer's medical practitioner as to
the sufferer's state of mind at the time of signing the certificate of
request and certification of the medical practitioner's opinion that the
sufferer's decision to end his or her life was made freely, voluntarily
and after due consideration;
(4) the reports of the medical practitioner and qualified psychiatrist
referred to in paragraph 8(1)(c);
(5) a note by the sufferer's medical practitioner:
(a) certifying the independence of the medical practitioner and
qualified psychiatrist referred to in paragraph 8(1)(c) and the
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residential and period of practice qualifications of the sufferer's
medical practitioner; and
(b) indicating that all requirements under this Act have been met; and
(c) indicating the steps taken to carry out the request for assistance;
and
(d) including a notation of the substance prescribed;
and such other information, if any, as is prescribed.
Maximum penalty: 100 penalty units or imprisonment for 2 years.
Certification of Death
15. (1) A medical practitioner who, under this Act, assists a sufferer to
end the sufferer's life must be taken, for the purposes of any legal
requirements concerning preparation of the death certificate, to have
been responsible for the sufferer's medical care immediately before
death.
(2) A death as the result of assistance given under this Act must not,
for that reason only, be taken to be unexpected, unnatural or violent,
or of having occurred during an anaesthetic, for the purposes of any
coronial inquiry.
Medical record to be sent to Coroner
16. (1) As soon as practicable after the death of a sufferer as the result of
assistance given under this Act, the medical practitioner who gave the
assistance must report the death to a Coroner by sending to the
Coroner a copy of the death certificate and so much of the medical
record of the sufferer (including that required by section 14 to be kept)
as relates to the terminal illness and death of the sufferer.
(2) As soon as practicable after the end of each financial year the
Coroner must advise the Attorney-General of the number of sufferers
who died as a result of assistance given under this Act and the
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Attorney-General, in such manner or report as he or she thinks
appropriate, must report the number to both Houses of the Parliament.
Coroner may report on operation of Act
17. Coroner may, at any time and in his or her absolute discretion, report
to the Attorney-General on the operation, or any matter affecting the
operation, of this Act and the Attorney-General must, within 3 sitting
days of the Parliament after receiving the report, table a copy of the
report in both Houses of the Parliament.
Construction of Act
18. Assistance given in accordance with this Act by a medical practitioner
or by a health care provider on the instructions of a medical
practitioner is taken to be medical treatment for the purposes of all
legislative enactments.
Certificate of request is evidence
19. A document purporting to be a certificate of request is, in any
proceedings before a court, admissible in evidence and is prima facie
evidence of the request by the person who purported to sign it, or on
whose behalf it is purported to have been signed, for assistance under
this Act.
Effect on construction of wills, contracts and statutes
20. (1) Any will, contract or other agreement, whether or not in writing or
executed or made before or after the commencement of this Act, to the
extent that it affects whether a person may make or rescind a request
for assistance under this Act, or the giving of such assistance, is not
valid.
(2) An obligation owing under a contract, whether made before or
after the commencement of this Act, must not be conditioned or
affected by the making or rescinding of a request for assistance under
this Act or the giving of that assistance.
Insurance or annuity policies
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21. The sale, procurement or issuing of any life, health or accident
insurance or annuity policy or the rate charged for such a policy must
not be conditioned on or affected by the making or rescinding of a
request for assistance under this Act or the giving of that assistance.
Immunities
22. (1) A person must not be subject to civil or criminal action or
professional disciplinary action for anything done in good faith and
without negligence in compliance with this Act, including being
present when a sufferer takes a substance prescribed for or supplied to
the sufferer as the result of the request for assistance under this Act to
end the sufferer's life.
(2) A professional organisation or association or health care provider
must not subject a person to censure, discipline, suspension, loss of
licence, certificate or other authority to practise, loss of privilege, loss
of membership or other penalty for anything that, in good faith and
without negligence, was done or refused to be done by the person and
which may under this Act lawfully be done or refused to be done.
(3) A request by a sufferer for assistance under this Act, or giving of
such assistance in good faith by a medical practitioner in compliance
with this Act, does not constitute neglect for any purpose of law.
(4) A health care provider is not under any duty, whether by contract,
statute or other legal requirement, to participate in the provision to a
sufferer of assistance under this Act, and if a health care provider is
unable or unwilling to carry out a direction of a medical practitioner
for the purpose of the medical practitioner assisting a sufferer under
this Act and the sufferer transfers his or her care to another health care
provider, the former health care provider must, on request, transfer a
copy of the sufferer's relevant medical records to the new health care
provider.
Regulations
23. The Governor may make regulations, not inconsistent with this Act,
prescribing all matters:
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(1) required or permitted by this Act to be prescribed; or
(2) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Act to prevail
24. In the event of any inconsistency between this Act and any other Act,
including the Criminal Code Act 1924, commenced before or after the
commencement of this Act, this Act prevails to the extent of the
inconsistency unless a contrary intention is stated in the subsequent
Acts.
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Schedule 1 - Certificate of request forms
1. Request for assistance to end my life in a humane and dignified
manner;
I, have been advised by my medical practitioner that I am suffering
from an illness which will ultimately result in my death and this has
been confirmed by a second medical practitioner.
I have been fully informed of the nature of my illness and its likely
course and the medical treatment, including palliative care,
counselling and psychiatric support and extraordinary measures that
may keep me alive, that is available to me and I am satisfied that there
is no medical treatment reasonably available that is acceptable to me
in my circumstances.
I request my medical practitioner to assist me to end my life in a
humane and dignified manner.
I understand that I have the right to rescind this request at any time.
Signed:
Dated:
2. Declaration of witnesses;
I declare that -
(a) the person signing this request is personally known to me;
(b) he/she is a patient under my care;
(c) he /she signed the request in my presence and in the presence of
the second witness to this request;
(d) I am satisfied that he/she is mentally competent, of sound mind
and that his/her decision to end his/her life has been made freely,
voluntarily and after due consideration.
Signed: Patient's Medical Practitioner
I declare that -
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(a) the person signing this request is known to me;
(b) I have discussed his/her case with him/her and his/her medical
practitioner;
(c) he/she signed the request in my presence and in the presence of
his/her medical practitioner;
(d) I am satisfied that he/she is of sound mind and that his/her decision
to end his/her life has been made freely, voluntarily and after due
consideration.
Signed: Second Medical Practitioner
3. Declaration of Interpreter where under section 8(4) an interpreter is
required to be present
I declare that -
(a) the person signing this request or on whose behalf it is signed
is known to me;
(b) I am an interpreter qualified to interpret in the first language of
the patient as required by section 8 (4);
(c) I have interpreted for the patient in connection with the
completion and signing of this certificate;
(d) in my opinion, the patient understands the meaning and nature
of this certificate.
Signed: Qualified Interpreter.
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