Health Law Bulletin
Last Updated: 18 November 2010
Article by Alison Choy Flannigan
This article is part of a series: Click New code of good manufacturing practice for medicinal products for the previous article.


On 19 January 2010, J wrote to H Limited, the Aged care facility where she resides, informing it of her decision to end her life by refusing food, water and insulin, upon which she is dependent. On 4 March she made an anticipatory directive that should she be in a terminal phase of a terminal illness or in a persistent vegetative state, H Ltd should only administer palliative care and provide neither hydration nor nutrition.

Although J suffers from post polio syndrome and type 1 diabetes and is unable to use her right limbs, she is mentally sound and wishes to carry out her intention and for the aged care facility to comply with the directive. She finds using her left limbs painful, and their movement is extremely limited. J spends all her waking hours in a wheelchair. When in bed she is unable to move or change position. There is no prospect of any improvement in her condition. J requires assistance for all of her basic toileting and hygiene needs.


Can a declaration be made as to this matter?

As the Commonwealth entered the case as a second defendant, the primary issue before the court was whether this matter could be heard in a Supreme Court. This was decided in the affirmative as Supreme Courts are Chapter III courts and are able to exercise federal jurisdiction under s39(2) of the Constitution.1

Nexus of the common law right to self determination and the refusal of food and water

Here Kourakis J followed the case of Brightwater2, finding that there is no common law duty on providers of residential care services to provide nourishment to residents who refuse. Similarly McDougall J in Hunter3 concluded that where the right of the individual for self determination and the State's interest in preserving that individual's life come into conflict, the individual's rights must prevail, as to force a competent adult to do something that is expressly against their will would constitute a battery.

Although the authorities conflict, it was determined that so long as consent to such a course of action was given by a person of sound mind and mental competence (as it was here found) with a degree of affirmed consent then such consent is valid. Note that there is no requirement to analyse the specific motives of the person refusing consent, which does not necessarily have to be fully informed. However, Kourakis J later explains that refusal of sustenance must be rational, voluntary and informed in considering whether it relieves the duty of another to provide care.

Does ceasing to take food and water constitute a suicide?

It is accepted that to stop taking one's medication is not a suicide, and here it was decided that nor would ceasing to administer nutrition or hydration under similar circumstances.

There appears to be no common law duty to feed oneself, and there is ample legislation allowing refusal of medical treatment (see for example section 6 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) (CMTPCA) which provides that a competent adult may refuse treatment of medication or nutrition and hydration, the refusal of which would not amount to suicide). Thus refusal of nourishment cannot constitute a suicide.

It was then examined whether aiding a person to end their life in such a manner is partaking in a suicide pact. Kouriakis J reasoned that if under section 8 of the CMTPCA another mentally competent person can make such a decision for the appointee it seems incongruous that the appointee themselves cannot make such a decision when they are of competent mind. This is consistent with the criminal law where it is reasoned that under the Criminal Law Consolidation Act 1935 (SA) (CLCA) as there is no positive duty to prevent a suicide; accordingly, simply letting J refuse sustenance was not a crime on H Ltd's part. As such the directive from J to H Ltd cannot be concluded as making a suicide pact, as H Ltd is simply not acting at a time at which they might act to prevent J's death.

That being said, such an omission might be seen to endanger life or create risk of serious harm as provided by section 29 of the CLCA. However, H Ltd's omission can only constitute an offence when there is a duty to provide care, which in this case has specifically been negated in the above directive given by J, a person of sound mind.

In this case J had been examined by a specialist Geriatrician and a specialist Palliative Care practitioner. Both were satisfied of her mental competence. There was no indication that J was depressed. She showed significant insight into her condition and explained to them, rationally and dispassionately, the reasons for her decision. Both doctors explained to J in some detail, the physiological consequences of her decision and the palliative care she could be given.

Duties under the Aged Care Act 1997 (Commonwealth )

In addition, it was found that although failure to provide food and water was contrary to the Charter of Residents' Rights and Responsibilities, and the Care Principles under Aged Care Act 1997 (Cth), as it did not require the provision of care to a resident who rationally refuses in accordance with the principle of allowing residents to remain in control of their personal lives whilst of sound mind. Accordingly, J refusing to eat was not a breach of H Ltd's duty of care. So long as the refusal is 'voluntary, rational and informed' H Ltd is unlikely to be liable under this act.


Where rational, voluntary and informed consent is given, a person can legally refuse sustenance and medication to end their life. In order for such a course to be deemed legal, the person must provide to their enduring guardian a valid directive set out in the approved form, stating clearly their intentions and their acknowledgement of the consequences, and that such a guardian should act in accordance with their wishes thus granting consent for the care provider to not act, and releasing them from any duty to act otherwise.


Ultimately this matter was decided in light of the wording of the legislation, J's personal circumstances and J's directive itself. This somewhat restricts the application of the decision, and makes it likely that any analogous case would also have to be decided on its own merit.

The entire decision however rests on the directive. If a directive is not given by a person of sound mind, with considerable thought and in an informed manner, then the failure to provide medical care may incur criminal and civil liabilities.

Furthermore, as this case has been decided on South Australian Legislation, liability may alter from State to State.

1. H Limited v J [2010] SASC at 176 at [9] - [14]

2. Brightwater Care Group (Inc) v Rossiter [2009] WASC 229

3. Hunter and New England Area Health Service v A [2009] NSWSC 761

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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This article is part of a series: Click New code of good manufacturing practice for medicinal products for the previous article.
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