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Protection of Conscience Project

www.consciencelaws.org

Service, not Servitude
Proposed Protection of Conscience Laws
Australia
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Victoria

Medical Treatment (Physician Assisted Dying) Bill 2008

What follows are the parts of an assisted suicide bill which pertain to legal immunities and protection of freedom of conscience. The Parliamentary Library has prepared a briefing paper on the bill. The bill was defeated in the upper house of the Victorian Parliament in September, 2008.

Note:

  • The purposes of the Act set out in Section 1 do not include the protection of conscientious objectors.
  • "Health care provider" refers only to health care facilities or institutions, not individuals.
  • Freedom of conscience guaranteed in Section 9 is limited to physicians and health care facilities. There is no protection for nurses, pharmacists or other health care workers.
  • Objecting physicians are required to advise the patient that the service may be obtained elsewhere, but are not required to refer.
  • The protection afforded by Section 10 is not balanced. It applies to both objecting and non-objecting physicians and health care providers (institutions). However, since the bill does not recognize freedom of conscience for nurses, pharmacists or other health care workers, they could be disciplined for refusing to participate in assisted suicide.
  • There is no provision to protect persons who object to assisted suicide for reasons of conscience from discrimination in education or employment.

7. Immunity of providing assistance or being present

(1) A treating doctor who provides assistance in accordance with this Act is immune from criminal, civil and disciplinary liability and proceedings in respect of that assistance. This does not relieve the doctor from liability for negligence in providing the assistance.

(2) A nurse, health care provider or agent who in good faith follows the instructions of a treating doctor is immune from criminal, civil and disciplinary liability and proceedings in respect of his or her actions. This does not relieve the nurse, health care provider or agent from liability for negligence in following the treating doctor's instructions.

(3) A pharmacist who dispenses in good faith a prescription issued by a treating doctor is immune from criminal, civil and disciplinary liability and proceedings in respect of that dispensing. This does not relieve the pharmacist from liability for negligence in dispensing the prescription.

(4) Any person who is present at or before the time the sufferer ends his or her life, and who has a reasonably held belief that the sufferer intends to or has ended his or her life in accordance with the provisions of this Act, is immune from criminal, civil, and disciplinary liability in respect of that presence.

8 Doctor's and nurse's immunity in relation to information

A doctor, nurse, lawyer or other individual is immune from criminal, civil or disciplinary proceedings in relation to providing information or advice to a sufferer, agent or sufferer's relatives in good faith concerning this Act or what can be done under it.

9 Duty when declining to provide assistance

(1) A doctor is not under any duty to provide assistance under this Act. A doctor who, for conscience, professional or other reasons, declines to provide assistance must tell the sufferer that other doctors may be willing to provide assistance. A doctor who fails to do so is guilty of an offence. Penalty: a fine not exceeding 5 Penalty Units.

(2) A health care provider is not under any duty, whether by employment, contract, statute or other legal requirement, to participate in the provision of assistance to a sufferer under this Act. If a health care provider is unable or unwilling to permit assistance to be given in accordance with this Act and the sufferer transfers his or her care to another health care provider, the former healthcare provider must, on request, transfer a full copy of the patient's relevant medical records to the new health care provider. Penalty: a fine not exceeding 5 Penalty Units.

10 Duty to respect assistance or refusal to provide assistance

(1) A professional organisation, 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 prejudicial pressure or 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. Penalty: a fine not exceeding 50 Penalty Units for an individual, or a fine not exceeding 500 Penalty Units for an organisation, association or health care provider.

(2) Subsection (1) does not apply to a health care provider in respect of a person who knew or reasonably ought to have known that the health care provider did not allow in its facility or under any arrangement with it, assistance which is provided for in this Act.

 

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