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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law Consolidation (Medical Defences—End of
Life Arrangements) Amendment Bill 2011
A BILL FOR
An Act to amend the Criminal
Law Consolidation Act 1935.
Contents
Part 1—Preliminary
1Short
title
2Amendment provisions
Part 2—Amendment of Criminal Law
Consolidation Act 1935
3Insertion of section
13B
13BCriminal liability in
relation to end of life arrangements
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation (Medical
Defences—End of Life Arrangements) Amendment Act 2011.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law Consolidation
Act 1935
After section 13A insert:
13B—Criminal liability in relation to end of life
arrangements
(1) It is a defence
to a charge of an offence against this Division arising out of the death or
intended death of a person if the death resulted, or was intended to result,
from the administration of drugs to the person by the defendant and the
defendant proves, on the balance of probabilities, that—
(a) the defendant was, at the time of the conduct to which the charge
relates, a treating practitioner of the person; and
(b) the defendant believed on reasonable grounds that the person was an
adult person of sound mind who was suffering from an illness, injury or other
medical condition that irreversibly impaired the person's quality of life so
that life had become intolerable to that person (the qualifying
illness); and
(c) the conduct to which the charge relates occurred at the express
request of the person; and
(d) the conduct to which the charge relates was, in all the circumstances,
a reasonable response to the suffering of the person.
(2) It is a defence
to a charge of aiding, abetting or counselling the suicide or attempted suicide
of a person if the defendant proves, on the balance of probabilities,
that—
(a) the defendant was, at the time of the conduct to which the charge
relates, a treating practitioner of the person; and
(b) the defendant believed on reasonable grounds that the person was an
adult person of sound mind who was suffering from an illness, injury or other
medical condition that irreversibly impaired the person's quality of life so
that life had become intolerable to that person (the qualifying
illness); and
(c) the conduct to which the charge relates occurred at the request
(whether express or implied) of the person; and
(d) the conduct to which the charge relates was, in all the circumstances,
a reasonable response to the suffering of the person.
(3) It is a defence to
a charge of an offence (however particularised) involving the provision, or
intended provision, of support or assistance to a medical practitioner in
relation to the death or intended death of a person if—
(a) the medical practitioner has been acquitted under this section in
relation to the death or intended death of the person; or
(b) the defendant proves, on the balance of probabilities,
that—
(i) the conduct to which the charge relates was done in good faith and in
the ordinary course of the defendant's employment; and
(ii) the conduct of the medical practitioner in relation to the death or
intended death of the person was, in all the circumstances, a reasonable
response to the suffering of the person.
(4) To avoid doubt, a court may acquit a defendant under
subsection (3) even
if the medical practitioner has been convicted of an offence arising out of the
death or intended death of the person.
(5) In determining
whether particular conduct was a reasonable response to the suffering of a
person with a qualifying illness, a court must have regard to the fact that the
Parliament intends that conduct bringing about the end of a person's life is a
reasonable response to such suffering in exceptional circumstances, including
where palliative care measures have not relieved the person's suffering to a
level acceptable to the person.
(6) If a court acquits a person under this section—
(a) the person incurs no civil liability (including liability arising
under disciplinary proceedings or similar proceedings) for the conduct to which
the charge related, provided that the conduct was done in good faith and without
negligence; and
(b) the court may make such ancillary orders as the court thinks
fit.
(7) In this section—
employment, in relation to a person,
includes—
(a) a contract for services or an agency arrangement; and
(b) unpaid employment;
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
treating practitioner, of a person, means a medical
practitioner—
(a) who is currently treating the person for his or her qualifying
illness; or
(b) who is currently responsible (whether solely or otherwise) for the
primary care of the person.