Voluntary assisted dying and end-of-life decision-making: a global perspective and lessons to be learnt

Alison Choy Flannigan
Hall & Wilcox, Sydney
alison.choyflannigan@hallandwilcox.com.au

Introduction

There are a number of ethical issues associated with end-of-life decision-making, including suicide and the rights of healthcare professionals and organisations to conscientiously object on religious grounds.

The legal position on voluntary assisted dying (VAD), being active euthanasia, and advance care directives (ACDs), being decisions concerning the passive withdrawal of life-sustaining treatment, varies significantly across jurisdictions.

While some countries, such as Canada and Australia, have progressive frameworks permitting VAD and ACDs, others, including Singapore, India and the United Kingdom, maintain more restrictive approaches.

Recent legislative developments, particularly in Australia and Canada, highlight the importance of having clear safeguards in place, capacity assessments and respect for individual autonomy during end-of-life care.

The legal position on end-of-life decision-making varies across the world and valuable lessons can be learnt from some of the most progressive nations.

Some of the questions that arise are:

• Should ACDs and VAD be legal?
• Should VAD only be available when a person is physically dying? If so, within what period should it be allowed?
• Should a person have an adequate level of mental capacity throughout the process?
• Should VAD be extended when a person is mentally ill and not physically ill?
• Should there be a reflection period, so that a person cannot make a rash decision on the day and access VAD?
• What should be the role of medical practitioners during VAD and how can they be protected?
• If a person is suffering, how long should they be allowed to wait in pain?
• What protections should be in place?

In Singapore:

• Assisting/abetting suicide or attempted suicide remains a criminal offence pursuant to sections 305–306 of the Singapore Penal Code 1871.
• Advance medical directives (AMDs aka ACDs) are permissible and represents a form of legal planning for end-of-life care. Eligible persons, who are over 21 years of age and who are not mentally ill, can make a legal document that is signed in advance to inform the doctor treating them (in the event the person becomes terminally ill and unconscious) that they do not want any extraordinary life-sustaining treatment to be used to prolong their life. It must be a voluntary decision.
• VAD in the form of active euthanasia is not permitted.

In India:

• Active VAD is not legally permitted in India, as it may attract criminal liability under sections 103 and 115 of the Bhartiya Nyay Sanhita.
• However, the withdrawal or withholding of life support through the use of ACDs is permitted under judicially established guidelines.
• The Supreme Court of India, in Aruna Ramchandra Shanbaug v Union of India (2011), first recognised the legality of the withdrawal of life support under judicial supervision. Subsequently, in Common Cause v Union of India (2018), the Court affirmed the right to die with dignity as an intrinsic part of the right to life established under Article 21 of the Constitution of India and formally recognised living wills and advance medical directives.

In the UK:

• ACDs are legal, but VAD is illegal under English law.
• People can make an advance statement, which is a written statement that sets down their preferences, wishes, beliefs and values regarding their future care.
• People can make an ‘advance decision’ (aka an ACD). An advance decision (sometimes known as an advance decision to refuse treatment (ADRT) or a living will) is a decision you can make now to refuse a specific type of treatment that may occur at some time in the future.
• The UK is currently debating voluntary assisted dying.
• The Terminally Ill Adults (End of Life) Bill 2024–25 had its second reading on 29 November 2024 and is currently at the committee stage. The Bill aims to allow adults who are terminally ill, subject to certain safeguards and protections, to request and be provided with assistance to end their own life.

In Australia:

• ACDs, also known as living wills or advance care planning, enable a person over the age of 18, who is mentally competent, to express their preferences in relation to their future medical care and treatment.
• Common law in Australia recognises two relevant but, in some cases, conflicting interests:

– a competent adult’s right of autonomy or self-determination: the right to control his or her own body; and

– the interest of the state in protecting and preserving the lives and health of its citizens.

• ACDs are passive.
• Unfortunately, the legislation dealing with advance care directives is not uniform in Australia. In dealing with advance care directives, you must have regard to the relevant legislation in your jurisdiction, including, but not limited to, the following:

a. Australian Capital Territory – Medical Treatment (Health Directions) Act 2006 (ACT);

b. New South Wales – NSW Health has published guidelines on advance care planning applicable to NSW public sector;^[1]

c. Northern Territory – Advance Personal Planning Act 2013 (NT) and Advance Personal Planning Regulations 2014 (NT);

d. Queensland – Guardianship and Administration Act 2000 (Qld);

e. South Australia – Advance Care Directives Act 2013;

f. Victoria – Medical Treatment Planning and Decisions Act 2016 (Vic); and

g. Western Australia – Guardianship and Administration Act 1990 (WA).

• In addition to the applicable legislation, there have been a number of key cases on the matter, including:

a. Hunter and New England Area Health Service v A (by his Tutor) (2009) 74 NSWLR 88;

b. Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84;

c. Australian Capital Territory v JT [2009] ACTSC 105; and

d. H Ltd v J (2010) 107 SASR 352.

• ACDs are different from active VAD, which is also legal in Australian States and Territories (except the Northern Territory).
• There are strict rules in all states and territories where VAD is available. The rules in the different states are similar, but there are some differences, as follows:

a. The individual must be diagnosed with a disease, illness or medical condition that:

1. is incurable;
2. is advanced, progressive and will cause death;
3. is expected to cause death within weeks or months, not exceeding six months; and
4. is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable.
5. A person is not eligible for access to VAD only because the person is diagnosed with a mental illness. A person is not eligible for access to VAD only because the person has a disability.

b. Despite the above, if the person is diagnosed with a disease, illness or medical condition that is neurodegenerative, that disease, illness or medical condition must be expected to cause death within weeks or months, not exceeding 12 months.

c. The individual must

1. be an adult (18 years or older);
2. be an Australian citizen or permanent resident;
3. have lived for at least 12 months in the state or territory where they are requesting VAD;
4. be able to make their own decisions;
5. be able to make their own choice without feeling pressured or forced by others;
6. have a disease, illness or medical condition that is likely to cause death, generally within a certain amount of time;
7. have an advanced medical condition that causes unbearable suffering;
8. be able to make an enduring request for VAD (meaning that their request must be ongoing).

d. A registered medical practitioner, known as a ‘co-ordinating medical practitioner’ under the Act, must assess whether a person meets the eligibility criteria for assisted dying.

e. The person must have made a clear, unambiguous and personally made first request to the registered medical practitioner.

f. Two doctors must make assessments of the person’s eligibility to access VAD and must also certify that the request and assessment process has been complied with in accordance with the legislation.

g. There must also be a final personal request to the co-ordinating medical practitioner. The coordinating medical practitioner must then make a final review.

h. Once the assessments are completed, the doctor can apply for a permit to prescribe the medication, and the medication can then be dispensed to the person.

• Recent updates to ACDs include legislation in South Australia, the introduction of national frameworks and the ability to manage them online through systems like Australia’s My Health Record, which is administrated by Australia’s Digital Health Agency.
• Further information is available in my previous article.^[2]

In Canada, one of the most progressive nations:

• ACDs and VAD are both permitted.
• Canada has a rapidly expanding the Medical Assistance in Dying (MAiD) regime, through the adoption of a number of laws.^[3]
• On 29 February 2024, legislation to extend the temporary exclusion on eligibility for MAiD in circumstances where a person’s sole underlying medical condition is a mental illness received royal assent and immediately came into effect. The eligibility date for persons suffering solely from a mental illness is now 17 March 2027.
• The revised 2021 law modified the MAiD eligibility criteria in response to the Superior Court of Québec’s 2019 Truchon decision. The Superior Court found the ‘reasonable foreseeability of natural death’ eligibility criterion in the Criminal Code, as well as the ‘end-of-life’ criterion in Québec’s Act Respecting End-of-Life Care, to be unconstitutional.
• The law no longer requires a person’s natural death to be reasonably foreseeable as an eligibility criterion for the MAiD.
• As of 17 March 2021, persons who wish to receive MAiD must meet the following eligibility criteria:

– be 18 years of age or older and have decision-making capacity;

– be eligible for publicly funded healthcare services;

– make a voluntary request that is not the result of external pressure;

– give informed consent to receive MAiD, meaning that the person has consented to receiving MAiD after they have received all the information needed to make such a decision;

– have a serious and incurable illness, disease or disability (excluding a mental illness until 17 March 2027);

– be in an advanced state of irreversible decline in capability; and

– have enduring and intolerable physical or psychological suffering that cannot be alleviated in regard to conditions the person considers acceptable.^[4]

• Canada's MAiD regime operates based on a two-track system:

– Track 1 is for individuals whose natural death is reasonably foreseeable, with simplified safeguards, while

– Track 2 is for those with a grievous and irremediable condition who are not near death, requiring stricter procedural safeguards.

• Both tracks require a patient to be a competent adult who has made a voluntary and informed request for MAiD.
• Canada now has, arguably, the most open-ended euthanasia law, with a record of 60,000 deaths. Some 4.7 per cent of all deaths in Canada are by MAID, second only to the Netherlands. Most fall within Track 1 (foreseeable natural death), but many of these people may have had years of life left. Since the expansion of the regime, more than 1,000 disabled persons have died under Track 2.^[5] These are astonishing statistics.
• In British Columbia, the family of a man is suing the federal and provincial government after he was granted VAD during a day pass from hospital.^[6]

– The family of a BC man with bipolar disorder and chronic back pain is suing the federal and provincial governments after he allegedly used a day pass from hospital to end his life with medical assistance.

– In a lawsuit filed in BC Supreme Court, the man’s family claims the 52-year-old, known as JMM, fell in with a group of people whose concurrent physical and mental illnesses leave them ‘vulnerable’ under Canada’s (MAiD) framework.

– ‘JMM received approval for medical assistance in dying, but he subsequently expressed that he did not wish to proceed with the procedure and instead, he wished to pursue other treatments, including rehabilitation,’ the claim reads.

– ‘Regrettably, while receiving treatment at St. Paul's Hospital for his incapacitating illness, JMM left the hospital on a day pass, visited a clinic in the afternoon, and died through the (alleged) improper administration of MAiD.’

– It's the second time the MAiD framework has come under the scrutiny of the court in recent months. In late October, another judge issued a last-minute injunction to prevent the medically assisted death of a woman that was planned for later the same day.

This article was written following a discussion on the topic at the IBA’s Annual Conference 2025 that took place in Toronto, which involved Barbara Connolly KC (UK); Benjamin Gaw, Drew & Napier (Singapore); Dr Milind Antani, Nishith Desai Associates (India); and Professor Trudo Lemmens, University of Toronto (Canada).