Papers by Katrine Del Villar
American journal of law & medicine, Jul 1, 2023
Social Science Research Network, Dec 31, 2022
When state parliaments legalised voluntary assisted dying (VAD), they could not have anticipated ... more When state parliaments legalised voluntary assisted dying (VAD), they could not have anticipated that the requirement to be 'an Australian citizen or permanent resident' would be one of the main areas of controversy. This criterion of eligibility was intended to prevent people travelling from other countries to access VAD. However, because the term 'permanent resident' is not defined in the legislation, it has unfortunately prevented some long-term Australian residents from accessing VAD. We evaluate various definitions of 'permanent resident' and conclude that a plain English definition better suits the text, context and purpose of the VAD laws than the technical definitions found in migration or citizenship legislation. We then suggest policy and statutory reform to ameliorate some of the problems which have occurred in practice.
Laws, May 25, 2015
In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) ha... more In 2013, and again in 2014, the UN Committee on the Rights of Persons with Disabilities (CRPD) has recommended that Australia abolish its existing mental health laws which authorise involuntary treatment and detention, and replace them with a regime of supported decision-making. The Australian Law Reform Commission has also recommended the introduction of supported decision-making to replace mental health and guardianship laws. This paper critically evaluates the concepts of autonomy and discrimination and the social model of disability which provide the theoretical underpinning of the CRPD. Focussing on coercive treatment of adults with severe mental illness under Queensland's Mental Health Act 2000, it then evaluates the advantages and disadvantages of supported decision-making, and concludes that the proposed abolition of involuntary treatment laws is not justified.
This thesis conducts a comparative study of how advance directives for treatment for mental illne... more This thesis conducts a comparative study of how advance directives for treatment for mental illness are regulated in Australia. It considers whether the legal prerequisites for making a mental health advance directive – capacity and voluntariness – are effective in promoting autonomy in decision-making by people with mental illness. It concludes that they are overly focussed on rationality and external controlling factors, and proposes reform of the current legal framework to also recognise the impact of internal controlling factors (such as delusional false beliefs, serious mood distortions and disorders of valuation) on decision-making
The Medical Journal of Australia, Feb 12, 2020
Selfbinding directives (SBDs, also referred to as Ulysses directives)1 are a type of advance heal... more Selfbinding directives (SBDs, also referred to as Ulysses directives)1 are a type of advance health directive used by people with mental illness to bind themselves to future treatment that is likely to be resisted at the time when it is needed. SBDs offer the potential to use the individual’s past experience of illness to describe early indicators of the onset of another acute phase of illness,2 and give advance consent to specified forms of mental health treatment. This treatment is intended to occur at a time when the person considers their functioning will have become severely affected by illness, which may be before they meet the criteria for involuntary treatment under mental health laws.
AIAL Forum, 2003
Writing in 1980, Kevin Cho said “Australia rivals Canada in its passion for Ombudsman”, there bei... more Writing in 1980, Kevin Cho said “Australia rivals Canada in its passion for Ombudsman”, there being at that time executive ombudsmen (or Parliamentary Commissioners) in each of the States, the Commonwealth and the Northern Territory. Since that time, ombudsmen in Australia have “gone forth and multiplied”. The past decade or so has witnessed the expansion of the ombudsman concept into the private sector, with the creation of industry ombudsmen schemes at both national and State levels to handle complaints about privatized essential services, as well as complaints about industries which were never part of the public sector. The ombudsman model has also been chosen to deal with single-issue complaints within a particular industry, a recent example being the proposed Music Industry Ombudsman which w ill have jurisdiction over censorship, but not other aspects of the music industry...
Australian Slavonic and East European Studies, 1995
There is a striking coincidence of insight in the novels of Thomas Mann and Mikhail Afanas’evich ... more There is a striking coincidence of insight in the novels of Thomas Mann and Mikhail Afanas’evich Bulgakov. Although both wrote in the 1930s , the former lived in Germany and the latter in Stalinist Russia, and there is no evidence that Bulgakov had either heard of or read Mann’s novella when working on his masterpiece, thus making their similar insights all the more remarkable. On the political plane, Mario und der Zauberer warns of the dangers of fascism, not only in Italy, where the novella is set and where Mussolini had been in power since 1922, but also in Mann’s native Germany, which the author feared could become answerable to a dark magician a la Cipolla. The Master and Margarita also takes its political content from totalitarianism - from Stalin’s communist dictatorship. However, both authors consider their political comment as of secondary importance when compared with the ethical dilemmas they explore; the questions of the personal responsibility and cowardice...
On Friday, 28 July 2000, Justice Sundberg of the Federal Court of Australia handed down his decis... more On Friday, 28 July 2000, Justice Sundberg of the Federal Court of Australia handed down his decision in McBain v State of Victoria.(1) The decision is the latest in a number of challenges to restrictions on obtaining IVF services in Victoria, South Australia and Queensland. His ruling, that provisions of the Victorian Infertility Treatment Act 1995 were inconsistent with section 22 of the Commonwealth Sex Discrimination Act 1984, has sparked nationwide controversy.
The Federal Court's decision in the McBain case(1) is analysed in the Research Note McBain v ... more The Federal Court's decision in the McBain case(1) is analysed in the Research Note McBain v State of Victoria: Access to IVF for all Women? Justice Sundberg struck down certain provisions of the Victorian Infertility Treatment Act 1995 which restricted access to fertility treatments to women who are married or in a heterosexual de facto relationship. He held that those requirements unlawfully discriminated against women on the basis of their marital status, in breach of the Sex Discrimination Act 1984 (Cwlth).
SSRN Electronic Journal
The right to refuse medical treatment is well established, even if refusal may result in death. H... more The right to refuse medical treatment is well established, even if refusal may result in death. However, it remains unsettled whether (and if so to what extent) information must be provided before a person can validly refuse treatment. This article compares conflicting statements from common law cases in England and Wales, Canada and Australia concerning refusals of medical treatment by an adult. Some cases distinguish between withholding treatment, withdrawing treatment without touching the person, and withdrawal of treatment that requires touching. These distinctions are unsustainable and inconsistent with fundamental legal principles of autonomy and bodily integrity. We propose an alternative framework that does not depend on such unsatisfactory distinctions. The common law should not require information to be received before a refusal of treatment is considered valid. Although there is a duty to offer information, the patient is under no duty to accept information offered, or to act on information provided.
Collegian
Background: Voluntary assisted dying laws have been passed in all Australian states and have comm... more Background: Voluntary assisted dying laws have been passed in all Australian states and have commenced operation in Victoria, Western Australia, Tasmania, Queensland and South Australia. Nurses have a significant role in caring for and supporting patients at the end of life, and it is likely that they will be impacted, at some point, by voluntary assisted dying practice. In some states, nurses who want to be involved in voluntary assisted dying and satisfy specified eligibility criteria will be able to administer the voluntary assisted dying medication to eligible patients. Given this, nurses should be familiar with relevant aspects of the voluntary assisted dying law in their jurisdiction. Aim: This article explores implications of the voluntary assisted dying legislation for nurses. It seeks to clarify the role of nurses to promote practice consistent with their legal roles, obligations and protections. Findings and discussion: This article explores three key legal issues for nurses in relation to voluntary assisted dying: (1) conversations about voluntary assisted dying (including prohibition provisions), (2) administration of voluntary assisted dying medication, and (3) conscientious objections (and any associated obligations). Conclusion: It is important that all nurses (not just those wishing to have a formal voluntary assisted dying role) have sound understanding of the voluntary assisted dying legislation in their jurisdiction (including legal obligations, protections, prohibitions and offenses), so that they know what the law permits them to do in their practice.
Monash University Law Review, Dec 1, 2020
Following parliamentary inquiries in both states, Victoria and Western Australia recently passed ... more Following parliamentary inquiries in both states, Victoria and Western Australia recently passed legislation to permit voluntary assisted dying (VAD), under strict conditions, with other states expected to follow. Although laws on VAD are a state responsibility, a significant hurdle to their implementation has been prohibitions in the Commonwealth Criminal Code on using a carriage service (including the telephone or internet) to counsel, promote or provide instruction on suicide. These provisions, enacted when VAD was unlawful in every Australian jurisdiction, have led state governments to instruct health practitioners to avoid discussing or facilitating VAD via telehealth. This article examines whether these concerns are founded and evaluates the extent of Commonwealth criminal liability that health practitioners might face for engaging in various conduct under the State assisted dying laws. The article argues that although the legal position is untested VAD would likely meet the definition of ‘suicide’ under Australian law and hence fall under the Commonwealth Criminal Code. The article then evaluates the extent of potential criminal liability for using a carriage service in each step of the VAD process. It concludes that there are areas with real legal risk, especially for activities that directly facilitate VAD, requiring urgent reform of the Commonwealth law
Journal of law and medicine, Aug 1, 2022
This article undertakes the first comprehensive mapping exercise of the legal regulation of volun... more This article undertakes the first comprehensive mapping exercise of the legal regulation of voluntary assisted dying in Victoria. Despite the detailed nature of the Voluntary Assisted Dying Act 2017 (Vic), this analysis reveals that voluntary assisted dying is also regulated by a diverse array of other law: a further 20 pieces of legislation and 27 broad areas of law. In some instances, this legal regulation beyond the principal voluntary assisted dying legislation is significant for how the voluntary assisted dying system operates in practice. The article then identifies the implications of this mapping exercise for the coherence of the law, focusing in particular on the domains of consistency, comprehensiveness, and completeness. Findings include identifying areas of significant incoherence and the implications of this for law reformers, policy-makers, and users of the law, including patients, families, health practitioners, and health service providers.
Journal of law and medicine, Aug 1, 2022
Unlawful assisted dying practices have been reported in Australia for decades. Voluntary assisted... more Unlawful assisted dying practices have been reported in Australia for decades. Voluntary assisted dying is now lawful in Victoria and Western Australia in limited circumstances, and will soon be lawful in a further three Australian states. This article examines nine cases involving unlawful assisted dying practices in Victoria in the 12 months prior to the commencement of the Voluntary Assisted Dying Act 2017 (Vic) in 2019. It explores whether, if that Act had been in operation at the relevant time, these patients would have been eligible to request voluntary assisted dying, having regard to their decision-making capacity and their disease, illness or medical condition. Many of these patients would not have been eligible to request voluntary assisted dying had the legislation been operational, primarily because they lacked decision-making capacity. As voluntary assisted dying is lawful only in a narrow set of circumstances, unlawful assisted deaths may continue to occur in those states where voluntary assisted dying is legal.
University of New South Wales Law Journal
‘Mercy Killing’ Cases Author Katrine Del Villar, Lindy Willmott and Ben P White This article exam... more ‘Mercy Killing’ Cases Author Katrine Del Villar, Lindy Willmott and Ben P White This article examines the sentencing remarks in all publicly reported Australian cases on assisted suicide and mercy killing since 1980. Themes emerging from judicial reasons for sentencing confirm that many traditional aims of sentencing – such as specific deterrence, retribution or rehabilitation – are inapposite in cases where relatives or friends act outside the law to end the suffering of a loved one. Pronounced leniency in sentencing, observed across the spectrum of cases, demonstrates a gap between the law on the books and the sentences imposed in practice. We identify inconsistent outcomes, both in charges laid and sentences imposed, which have the potential to undermine public confidence in the rule of law. We conclude that criminal law simultaneously provides both too much protection and insufficient protection for members of the community. We recommend law reform to enable judges to better distinguish between voluntary and non-voluntary assisted suicides and mercy killings.
Journal of law and medicine, Mar 1, 2022
Five Australian States – Victoria, Western Australia, Tasmania, South Australia and Queensland – ... more Five Australian States – Victoria, Western Australia, Tasmania, South Australia and Queensland – have now legalised voluntary assisted dying (VAD). These State legislative schemes intersect with provisions in the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) which prohibit using electronic communication to counsel, promote, or provide instruction on “suicide”. These provisions may prevent some conversations and assessments relating to self-administration of VAD occurring via telehealth, thereby restricting access for prospective VAD patients in regional and remote areas. However, as practitioner administration of VAD is not “suicide”, the Commonwealth Criminal Code does not apply. The Commonwealth law creates the absurd result that the same conversation conducted via telehealth is illegal when contemplating VAD by self-administration, but legal when discussing practitioner-administered VAD. To avoid this, we advocate amending the Code to remove the inconsistency with state VAD laws. We also recommend State legislatures consider permitting greater access to VAD by practitioner-administered VAD.
Journal of Law and Medicine, 2022
Five Australian States – Victoria, Western Australia, Tasmania, South Australia and Queensland – ... more Five Australian States – Victoria, Western Australia, Tasmania, South Australia and Queensland – have now legalised voluntary assisted dying (VAD). These State legislative schemes intersect with provisions in the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) which prohibit using electronic communication to counsel, promote, or provide instruction on “suicide”. These provisions may prevent some conversations and assessments relating to self-administration of VAD occurring via telehealth, thereby restricting access for prospective VAD patients in regional and remote areas. However, as practitioner administration of VAD is not “suicide”, the Commonwealth Criminal Code does not apply. The Commonwealth law creates the absurd result that the same conversation conducted via telehealth is illegal when contemplating VAD by self-administration, but legal when discussing practitioner-administered VAD. To avoid this, we advocate amending the Code to remove the inconsistency with state VAD laws. We also recommend State legislatures consider permitting greater access to VAD by practitioner-administered VAD.
International Perspectives on End-of-Life Law Reform, 2021
Monash University Law Review, Dec 1, 2020
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Papers by Katrine Del Villar