A closer look at the VAD Act: The common law forfeiture rule

The Voluntary Assisted Dying Act 2021 (the Act) was passed by the Queensland Parliament in a historic vote on 16 September 2021 and received royal assent on 23 September 2021.

This made Queensland the fifth Australian jurisdiction to legalise voluntary assisted dying (VAD), joining Victoria, Western Australia, South Australia and Tasmania. The VAD scheme will become operational on 1 January 2023.

This article is the third in a series that provides practitioners with a breakdown of what to expect once the VAD Act comes into operation in Queensland. This article focuses on the interaction of the Bill with the common law forfeiture rule.

Specifically, the article considers the potential application of the forfeiture rule in circumstances where someone assists another person to access VAD, and alternatively, where someone coerces another person to access VAD.

Assisting suicide

It is illegal in Queensland to aid another person in suicide. Section 311 of the Criminal Code 1899 (Qld) (Criminal Code) makes it a crime for any person who –

• procures another to kill himself or herself; or
• counsels another to kill himself or herself and thereby induces the other person to do so; or
• aids another in killing himself or herself.

In cases where a person is found guilty of aiding suicide, that person is prohibited from being the executor or beneficiary of the deceased’s will by virtue of the common law rule of forfeiture.

The forfeiture rule provides that where a person is criminally responsible for the death of another, and that death is a material fact in the vesting of property in favour of that person, then the person’s interest in that property is forfeited.

The first statement of the principle was made by Fry LJ in Cleaver v Mutual Reserve Fund Life Association: “It appears to me that no system of jurisprudence can within reason include amongst the rights which it enforces rights directly resulting to the person asserting them from a crime of that person.”¹

In that case, the court held that a woman who had been convicted of murdering her husband was prohibited from claiming the proceeds of his insurance policy: “[t]he rule of public policy in such a case prevents the person guilty of the death of the insured, or any person claiming through such person, from taking the money”.²

In the later case of In the Estate of Hall,³ the rule was held to apply to both manslaughter and murder when Lord Justice Hamilton stated:

“[It is] [t]rue that [Cleaver] was a case of murder, but I do not think that, by using terms wide enough to cover manslaughter, the members of the Court supposed themselves to be speaking obiter, or were in fact doing so. The principle can only be expressed in that wide form. It is that a man shall not slay his benefactor and thereby take his bounty; and I cannot understand why a distinction should be drawn between the rule of public policy where the criminality consists in murder and the rule where the criminality consists in manslaughter.”⁴

The forfeiture rule was endorsed by the High Court of Australia’s joint judgment in Helton v Allen.⁵ Unlike New South Wales⁶ and the Australian Capital Territory,⁷ Queensland has not introduced legislation to replace or augment the operation of the forfeiture rule. As such, the rule is applied inflexibly and without regard to the moral culpability of the person responsible for the death.

Generally, only those convicted of murder or manslaughter were barred from benefiting from an estate in Queensland if named as executors or beneficiaries in the victim’s will.

Despite this, recent legal precedent has expanded the scope of the forfeiture rule’s application, including to assisted suicide. The English Court of Appeal has held that the common law forfeiture rule is not confined to cases of murder and manslaughter, and extends to assisted suicide, where “the presence of acts or threats of violence is not necessary for the application of the forfeiture rule. It is sufficient that a serious crime has been committed deliberately and intentionally.”⁸

In 2014, the Supreme Court of Queensland followed the English Court of Appeal’s reasoning and applied the forfeiture rule to the case of a man who assisted the suicide of a friend,⁹ finding that he was unable to benefit from the estate.¹⁰ In that case, the court confirmed the inflexibility of the common law rule as it currently stands:

“In this State, the law is clear. A person who assists the suicide of someone else cannot act as that person’s executor, or take an interest in his or her estate. The court has no discretion to modify the application of that rule. Saying nothing as to the facts of this case, I observe that it is irrelevant that the offender may have been motivated to ease suffering or to have acted at the request of the deceased.”¹¹

Thus, in cases of assisted suicide the common law forfeiture rule as currently applied in Queensland will obviate a person’s right to benefit financially from the deceased’s death, regardless of moral culpability.

Assisting someone to access voluntary assisted dying

However, as voluntary assisted dying becomes a legal means by which to voluntarily take one’s own life in certain circumstances, it must necessarily be distinguished from assisting suicide to avoid application of the forfeiture rule to well-meaning executors and beneficiaries. Section 8 of the VAD Act remedies this by explicitly directing that voluntary assisted dying is not suicide:

“For the purposes of the law of the State, and for the purposes of a contract, deed or other instrument entered into in the State or governed by the law of the State, a person who dies as the result of the self-administration or administration of a voluntary assisted dying substance in accordance with this Act—

• does not die by suicide; and
• is taken to have died from the disease, illness or medical condition mentioned in section 10(1)(a) from which the person suffered.”

Additionally, s147(1) provides that no criminal liability will attach to a person only because the person, in good faith, does an act or makes an omission that assists another person who the person believes on reasonable grounds is requesting access to or accessing VAD in accordance with the Act, or where the person is present with another person self-administers a VAD substance.¹²

To remove any doubt, s147(2) of the Act declares that a person who does an act, or makes an omission, mentioned in s147(1) does not commit the offence of aiding suicide against the Criminal Code. Accordingly, in cases where a person lawfully assists another to access VAD, the person will not be subject to the common law forfeiture rule.

Coercing someone to access VAD or administer a VAD substance

The position, however, is less clear where a person intentionally coerces another person to request access to the VAD scheme or self-administer a VAD substance.

The Act provides a number of safeguards to mitigate against any potential coercion of a person to access the VAD scheme, including the following:

• The person must be assessed as ‘eligible’ by two different medical practitioners (who cannot be a family member of the person), which requires them to determine that the person has decision-making capacity (which includes being capable of freely and voluntarily making decisions about access to voluntary assisted dying) and that the person is acting voluntarily and without coercion.
• A medical practitioner, if unable to determine whether the person is acting voluntarily and without coercion, must refer the person to another person who has the appropriate skills and training to determine the matter.
• Two witnesses must witness the person’s second request to access the VAD scheme and certify that the person appeared to be acting freely and voluntarily.
• The coordinating practitioner, when undertaking the final review, must be satisfied that the person has decision-making capacity (which includes being capable of freely and voluntarily making decisions about access to voluntary assisted dying) and that the person is acting voluntarily and without coercion.
• Where the person makes a self-administration decision, the administering practitioner is only authorised to administer the VAD substance, in the presence of an eligible witness, if the administering practitioner is satisfied at the time of administration that the person has decision-making capacity and is acting voluntarily and without coercion.
• A witness who witnesses the administration of a VAD substance must certify that the person appeared to be acting voluntarily and without coercion.
• A decision by the coordinating practitioner (in a first assessment or final review) and the consulting practitioner (in a consulting assessment) as to whether a person is acting voluntarily and without coercion is a reviewable decision, about which an eligible person may apply to QCAT for review of the decision.

Taken together, these safeguards aim to robustly mitigate coercion in relation to VAD at all stages of the process. Additionally, the Act makes it an offence to dishonestly or by coercion induce another person to (a) make a request for voluntary assisted dying, or (b) self-administer a voluntary assisted dying substance.^[13]

However, where a person is nonetheless coerced into accessing the VAD scheme, it is presently unclear whether the current common law forfeiture rule would operate to exclude the person responsible for the coercion from benefitting financially from the person’s death.

This is because the forfeiture rule applies in Queensland to situations of murder, manslaughter and assisted suicide. It does not presently extend to the offences under the Act of coercing another person to make a request for VAD or self-administer a VAD substance.

The explicit exclusion of voluntary assisted dying from the definition of ‘suicide’ for the purpose of other Queensland legislation (that is, the Criminal Code) further complicates the circumstances in which the forfeiture rule would apply.

As such, the area would benefit from legislative intervention to clarify the application of the rule in the context of voluntary assisted dying in Queensland.

For more information about the operation of the Act, see our earlier articles in this series on superannuation and insurance, and medical liability.

Brooke Thompson is a Queensland Law Society Policy Solicitor.

Footnotes
¹ [1892] 1 QB 147, 156 (Fry LJ). See also Troja v Troja (1994) 33 NSWLR 269, 299.
² Ibid 155.
³ [1914] P 1.
⁴ Ibid 7.
⁵ (1940) 63 CLR 691, 709 (Dixon, Evatt and McTiernan JJ).
⁶ Forfeiture Act 1995 (NSW).
⁷ Forfeiture Act 1991 (ACT).
⁸ Dunbar v Plant [1998] Ch 412, 425 (Mummery LJ).
⁹ Which is a crime in Queensland pursuant to s311 of the Criminal Code Act 1899 (Qld).
¹⁰ Public Trustee of Queensland v Public Trustee of Queensland [2014] QSC 47.
¹¹ Ibid [19].
¹² Voluntary Assisted Dying Act 2021 (Qld) s147.
¹³ Voluntary Assisted Dying Act 2021 (Qld) ss141-2.