Page 3503 - Week 12 - Wednesday, 12 October 1994
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MR CONNOLLY (Attorney-General and Minister for Health) (11.17): Madam Speaker, I increasingly suspect that Mr Kaine is not in favour of this legislation, but I am intervening at the detail stage because I think he is working on a fundamental misconception of what the legislation is about. There is a lot of propaganda running about the town suggesting that this is somehow a suicide law; that this is about active death. A lot of Mr Kaine's comments suggested that this clause is dangerous because it allows two doctors, or a doctor and somebody else, to go away and kill somebody. It does not. What this law is about, Madam Speaker, is codifying the proposition that a person is entitled to refuse medical treatment. That, Madam Speaker, has always been the law. The problem has been that the common law has been vague. How you apply the common law has been a difficulty.
I would just like to run you through some cases to establish that proposition, although it is well known. The best-known example, in lay terms, is the fundamental tenet of a certain religious group, Jehovah's Witnesses, that they will not accept a blood transfusion. It is well known that Jehovah's Witnesses will not accept a blood transfusion, even though the advice of the most senior doctors may well be that if they do not have a blood transfusion they will die. It has always been the law that, when a Jehovah's Witness says, "It is my religious belief that I should not take a blood transfusion", the doctor is obliged to not give the blood transfusion.
Mr Humphries: Not for their children.
MR CONNOLLY: That goes to the question of the consent of the individual. The parent cannot necessarily consent to a child dying. That is a question that a court would have to look at in relation to what the child's wishes were, and in most cases the court would order a blood transfusion. There has been such litigation. Cases in Australia, Canada and England have constantly reaffirmed that it is the right of the individual to say whether they want medical treatment or not.
The most recent affirmation of that was in 1992, in the decision of the Northern Territory Health and Community Services Department against J. The individual was not identified because it was a case involving sterilisation of a child who had mental disabilities. McHugh J. stated, at page 337 of 1992 ALJR 300:
It is the central thesis of the common law doctrine of trespass to the person that the voluntary choices and decisions of an adult person of sound mind concerning what is or is not done to his or her body must be respected and accepted, irrespective of what others, including doctors, may think is in the best interests of that particular person.
The central point there is that it is a fundamental doctrine that an adult of sound mind - persons under a disability raise additional problems, and that is one of the reasons why we are trying to qualify this - has the right to say no. At common law, you now have the right to say, "I do not want that treatment. I do not want that machine to continue. I want that machine turned off". That has been the case for many years in Australia.
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