Meaningful protection or unacceptable risk? A critical analysis of undue influence as a safeguard in proposed voluntary assisted dying legislation in South Australia

Abstract

Legalisation of voluntary assisted dying (‘VAD’) has been a recurrent issue before the Parliament of South Australia, with the introduction of 24 bills into the legislature over the past 25 years. Although VAD has been successfully enacted elsewhere in a shorter space of time, the divisive nature of this topic is reflected in the lengthy time between drafting and enactment in South Australia. One pertinent issue that arises in the ongoing debate is how a request for VAD can be adequately protected from inappropriate external pressure, which resulted in the introduction of the doctrine of undue influence as a proposed statutory safeguard in several VAD bills. This thesis challenges the reliance on the doctrine of undue influence as a statutory safeguard in proposed VAD legislation in South Australia, arguing that instead of providing meaningful protection of a voluntary decision, it has the unintended consequence of placing individuals involved in the process at risk of harm. It is argued that ‘undue influence’ does not have an ordinary meaning and is conventionally understood as a legal term of equitable origin, consequently rendering it infelicitous as a proposed statutory safeguard for a voluntary decision. It asserts that the legislature’s continued failure to define and clarify the scope of undue influence renders it an ambiguous, and consequently inappropriate, test. This thesis concludes by urging the South Australian legislature to critically examine reliance on the doctrine of undue influence as a mechanism to protect a voluntary decision, recommending that an expert multidisciplinary committee be convened to conduct further research on this specific issue. It is posited that the data concerning the statutory response to safeguarding a voluntary consent in other jurisdictions, although beneficial as it serves as a point of reference, be viewed through a cautious lens, as there is a lack of convincing evidence demonstrating that voluntariness can be rigorously protected. VAD will become lawful in the near future in South Australia, as the Voluntary Assisted Dying Act 2021 (SA) has passed through both Houses of Parliament and will commence operation on a day to be fixed by proclamation. It is imperative that further research is undertaken to devise an appropriate test to ensure meaningful protection of a voluntary decision. There is no scope for error here, as no adequate remedy can be awarded to compensate for a non-voluntary death.