It is one of the more common questions that we are asked.
In South Australia, voluntary assisted dying or euthanasia is governed by the Voluntary Assisted Dying Act 2021, which came into effect on 31 January 2023. This legislation reflects laws already in place in other jurisdictions in Australia and elsewhere and allows eligible individuals to request and access voluntary assisted dying (VAD) under strict conditions. However, it is crucial to understand the limitations concerning substitute decision-makers.
Role of Substitute Decision-Makers
A substitute decision-maker, appointed under an Advance Care Directive, can make medical, health and care decisions on behalf of an individual if they lose decision-making capacity. This includes decisions about medical treatment, palliative care, accommodation and other healthcare matters. Nevertheless, the law explicitly restricts their authority in relation to voluntary assisted dying.
Legal Restrictions
Under the Voluntary Assisted Dying Act 2021 (SA):
- Personal Request Requirement: Only the subject individual themselves can make the request for voluntary assisted dying. The law requires the person to have decision-making capacity at every step of the process. This includes making the initial request, undergoing eligibility assessments, and giving final consent.
- No Authority to Consent: A substitute decision-maker cannot request, consent to, or administer voluntary euthanasia on behalf of the subject person. This is designed to safeguard the autonomy and rights of the individual, ensuring that the decision is voluntary and fully informed. The decision cannot be effectively delegated to someone else regardless of your wishes expressed in any Advance Care Directive.
- Advance Care Directives: Even if an Advance Care Directive explicitly states a wish for voluntary euthanasia, this cannot be actioned by a substitute decision-maker or relevant medical professionals. The law mandates that the decision must be made personally by the individual and only at the relevant times.
Implications and Considerations
These limitations uphold the principle of personal autonomy, ensuring that the choice to access voluntary assisted dying is made only by the subject person so as to reduce the scope for external influence or pressure. It also reflects ethical considerations, balancing respect for an individual’s end-of-life wishes with the need for stringent safeguards.
Conclusion
In South Australia, a substitute decision-maker cannot authorise voluntary euthanasia on behalf of another person. The person seeking to avail themselves of voluntary assisted dying laws must personally initiate the request and have the capacity to consent throughout the process. This legal framework ensures the integrity and voluntariness of the decision, aligning with the strict safeguards outlined in the Voluntary Assisted Dying Act 2021 (SA). One cannot authorise voluntary assisted dying prior to becoming eligible to use the voluntary assisted dying laws.
That is not to say that an Advance Care Directive has no importance in relation to end of life decisions. It certainly does and one should ensure that their wishes are properly reflected in the event that they are unable to make decisions themselves.
If you would like to discuss please contact one of our lawyers on 08 8344 6422.