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Ns Euthanasia Definition Essay

Euthanasia, human rights and the law

May 2016

ISSUES PAPER


Table of Contents


1 Introduction

This issues paper explores voluntary euthanasia. It is not intended to be exhaustive, however it aims to add to considerations of this very complex and sensitive topic through analysis of the domestic regulatory environment relating to both passive and active forms of voluntary euthanasia, and of relevant international laws by way of comparison with domestic regulation. It concludes with a human rights-based analysis of voluntary euthanasia and some commentary on the practice informed by human rights principles.

The word ‘euthanasia’ is derived from the Greek word euthanatos meaning ‘easy death’.[1] Generally it is used to describe the process of intentionally terminating a person’s life to reduce their pain and suffering.[2] Euthanasia is sought not only by those suffering excruciating pain, but for other reasons such as changes in quality of life resulting from catastrophic physical injury and psychological factors associated with incurable diseases.[3]

The current debate on euthanasia sits within a social context that is in a state of flux. Modern medical technology has led to increasing developments in, and greater availability of, artificial measures to prolong life.[4] Concurrently there has been a significant increase in the ageing of the population internationally[5] and a decline in the influence of organised religion in much of the developed world.[6]

The debate sees those who support an individual’s right to a ‘good death’ at a time of their own choosing at odds with those who believe strongly in the sanctity of human life.[7] Additional is the fear that any form of state-sanctioned ‘killing’ will leave society’s most vulnerable groups at particular risk.[8] Euthanasia raises some of the most fundamental philosophical questions of all – what is life, and are there forms of it that are so unbearable that they render living worthless?[9]

1.1 Terminology

‘Euthanasia’ is often incorrectly characterised as representing one particular kind of practice. However, it is more accurately understood as an umbrella term which covers a vast array of practices that can be described as different forms of euthanasia. These include:

  • Passive voluntary euthanasia – when medical treatment is withdrawn or withheld from a patient, at the patient’s request, in order to end the patient’s life;
  • Active voluntary euthanasia – when medical intervention takes place, at the patient’s request, in order to end the patient’s life;
  • Passive involuntary euthanasia – when medical treatment is withdrawn or withheld from a patient, not at the request of the patient, in order to end the patient’s life;
  • Active involuntary euthanasia – when medical intervention takes place, not at the patient’s request, in order to end the patient’s life.[10]

Notwithstanding some inevitable overlap between these terms, the parameters of this paper is consideration of the terms ‘passive’ and ‘active’ voluntary euthanasia. Involuntary euthanasia is not considered in this paper.

2 Passive voluntary euthanasia

Passive voluntary euthanasia involves the withdrawal or withholding of medical treatment from a patient, at the patient’s request, in order to end the patient’s life. Examples include not resuscitating a person in cardiac arrest, turning off a life support machine or withholding or withdrawing other medical care that would prolong life.[11]

2.1 Current practice

(a) Good medical practice

Withholding or withdrawing medical treatment currently occurs in Australia under various circumstances and regulations.

First, the Medical Board of Australia and the Australian and New Zealand Society of Palliative Medicine (ANZSPM) states good medical practice involves medical practitioners:

...Understanding that you do not have a duty to try to prolong life at all cost. However, you do have a duty to know when not to initiate and when to cease attempts at prolonging life, while ensuring that your patients receive appropriate relief from distress.[12]

...Accepting that patients have the right to refuse medical treatment or to request the withdrawal of treatment already started.[13]

The Australian Medical Association (AMA) similarly states that medical treatment may not be warranted where such treatment ‘will not offer a reasonable hope of benefit or will impose an unacceptable burden on the patient.’[14]

There is debate, however, as to whether such measures fall within the meaning of euthanasia. The AMA states that not initiating or withdrawing life-prolonging treatment ‘does not constitute euthanasia or physician assisted suicide’ where a medical practitioner is acting in accordance with good medical practice.[15]

The ANZSPM explains that ‘euthanasia and physician assisted suicide involve the primary, deliberate intention of causing the patient’s death’.[16]

The Royal Australian College of General Practitioners (RACGP) similarly states:

Whilst doctors have an ethical duty to preserve life there is also a responsibility to relieve suffering...Death should be allowed to occur with dignity and comfort when death is inevitable...the law classifies the cause of death as the patient’s underlying condition and not the actions of others. Any legislation therefore needs to recognize that a number of existing forms of end of life care, which may hasten death, are recognized as good medical practice and do not constitute euthanasia or assisted suicide.[17]

However, the statements by medical professionals to explain their position that existing end of life practices do not constitute euthanasia appear to reflect an understanding of euthanasia more in line with active, rather than passive, euthanasia. What is clear is that regulations do currently exist to permit the withdrawing or withholding of medical treatment in certain circumstances, regardless of whether such practices are described as passive euthanasia or fall within the meaning of established medical practice.

(b) Legislation

Each state and territory has enacted laws to regulate the act of withholding or withdrawing medical treatment with the effect of hastening death. These laws provide for instruments that allow, in a formal and binding manner, the previously expressed wishes of competent adults to continue to have influence over the kind of treatment they receive (or do not receive) when they lose competence.

No piece of legislation characterises such practices as euthanasia. Indeed, as with members of the medical profession, certain government departments have explicitly stated that such instruments do not permit euthanasia.[18] However, again, such statements seem to be focused on active, rather than passive euthanasia. The Western Australian Department of Health, for example, answers the question ‘Does an Advanced Health Directive permit euthanasia?’ with the statement ‘an Advanced Health Directive cannot require or authorise a doctor or other health professional to take active steps to unnaturally end life.’[19] Despite not using the term, such practices may nonetheless fall within the practices characterised as passive voluntary euthanasia as described above.

There are two forms of instruments that exist to regulate the withholding or withdrawing of medical treatment: 1) advance directives and 2) enduring powers of attorney or guardianship. All states and territories apart from Tasmania and New South Wales have legislation recognising types of ‘advance directive’ (variously described across jurisdictions). All states and territories have legislation recognising enduring powers of attorney or guardianship. The table below sets out which instruments are available in each jurisdiction and the relevant Act.

Table: Legislation relating to passive voluntary euthanasia practices in Australia

Jurisdiction

Does legislation provide for advance directives?

Does legislation provide for enduring powers of attorney/guardianship?

South Australia

Yes – ‘Advance care directives’

(Advance Care Directives Act 2013)

Yes – ‘Substitute decision makers’

(Advance Care Directives Act 2013)

Northern Territory

Yes – ‘Advance consent decisions’

(Advance Personal Planning Act 2013)

Yes – ‘Decision makers’

(Advance Personal Planning Act2013)

Victoria

Yes – ‘Refusal of treatment certificates’

(Medical Treatment Act 1988)

Yes – ‘Enduring powers of attorney’

(Powers of Attorney Act 2014)

ACT

Yes – ‘Health directions’

(Medical Treatment (Health Directions) Act 2006)

Yes – ‘Enduring powers of attorney’

(Powers of Attorney Act 2006)

Western Australia

Yes – ‘Advance health directives’

(Guardianship and Administration Act 1990)

Yes – ‘Enduring powers of guardianship’

(Guardianship and Administration Act 1990)

Queensland

Yes – ‘Advance health directives’

(Power of Attorney Act 1998)

Yes – ‘Enduring powers of attorney’

(Power of Attorney Act 1998)

Tasmania

No (but an advance care plan can be registered as part of an enduring guardianship)

Yes – ‘Enduring guardianship’

(Guardianship and Administration Act 1995)

New South Wales

No

Yes – ‘Enduring guardian’

(Guardianship Act 1987)

The common key features and differences between these instruments are summarised below:

(i) Advance directives

Advance directives allow competent adults to execute formal directives in writing (except for the ACT where they may be oral),[20] specifying their wishes concerning medical treatment, including the refusal of treatment.[21]

Directives will generally apply in situations where the person has impaired decision-making capacity, meaning they are unable to consent to or refuse medical treatment.[22] For example, in Queensland a directive specifying the withdrawal or withholding of treatment will only operate in certain circumstances (i.e. if the patient has a terminal illness, is in a persistent vegetative state, or is permanently unconscious).[23] In Victoria, a directive to withhold or withdraw treatment can only be made with regard to a current condition.[24]

Directives in relation to refusal of treatment are generally legally binding on health professionals,[25]although there are circumstances in which a health provider will be protected for non-compliance (for example, if there are reasonable grounds to believe that the directive does not reflect the current wishes of the person, or where a directive is uncertain or inconsistent with good medical practice).[26]

Health practitioners who act in good faith and/or reasonably refuse to provide or continue medical treatment in reliance on an advance directive are generally taken to be acting with the consent of the patient.[27] In Western Australia and the Northern Territory, legislation states that a health practitioner is deemed to be acting with valid consent when relying on an advance directive, even where this may hasten death.[28]

With regard to liability, the Victorian, South Australian and Australian Capital Territory Acts specify that practitioners, acting reasonably and/or in good faith, that act in accordance with an advance directive are generally protected from criminal liability.[29]In Queensland, a person acting in accordance with an advance health directive is ‘not liable for an act or omission to any greater extent than if the act of omission had happened with the principal’s consent.’[30]However, the Queensland Act also specifies that reliance on an advance directive does not prevent criminal liability under section 296 of the Queensland Criminal Code which criminalises the acceleration of death.[31]

New South Wales has not legislated to provide for advance directives. However, it has developed ‘Using Advance Care Directives’ guidelines on the management of end-of-life decisions, and advance care directives that comply with the requirements of these guidelines are legally binding in NSW, functioning as an ‘extension of the common law right to determine one’s own medical treatment’ (discussed below).[32]

(ii) Enduring powers of attorney or guardianship.

Enduring powers of attorney or guardianship allow a person to appoint one or more agents to make decisions about the provision or refusal of medical treatment if and when that person has impaired decision-making capacity.[33]

The attorney or guardian is generally required to make treatment decisions that are consistent with directions given by the person when competent, including those specified within the enduring power of attorney/guardianship itself, or in an advance directive.[34]

In some jurisdictions, there are limitations on the ability of attorneys and guardians to refuse treatment in certain situations. In Victoria, an agent or guardian may only refuse medical treatment on behalf of a patient if the medical treatment would cause unreasonable distress to the patient, or there are reasonable grounds for believing that the patient, if competent, and after giving serious consideration to his or her health and well-being, would consider that the medical treatment is unwarranted.[35] In Queensland, an enduring power of attorney cannot consent to the withholding or withdrawal of a life-sustaining measure unless this would be consistent with good medical practice.[36]

As mentioned above with regards to advance directives, health practitioners who reasonably/in good faith rely on the decision of an attorney or guardian are generally protected from criminal and civil liability (in the Northern Territory, Western Australia, Tasmania, New South Wales and Queensland because they are deemed to have acted with the patient’s consent) if the agent makes refusal of treatment decisions in compliance with a valid instrument.[37]

(c) Common law

Common law rules govern the doctor-patient relationship and the provision of medical treatment more generally.[38] Advance directives legislation in every Australian jurisdiction except for South Australia explicitly states that common law rights are not displaced by the legislation.[39]

With regard to passive voluntary euthanasia, the common law allows a competent adult to refuse medical treatment, even where that refusal will lead to death.[40] Where a patient’s refusal is both voluntary and informed, the decision must be respected and practitioners acting in accordance with such decisions are shielded from liability.[41]

Two cases considering the common law position concerning the right to refuse medical treatment help to clarify this position.

(i) Case law

Hunter and the New England Area Health Authority v A:[42]

In this case the Supreme Court of New South Wales considered the validity of a common law advance directive (there being no legislative provisions for such directives in NSW) given by Mr A, refusing kidney dialysis. One year after making the directive Mr A was admitted to a hospital emergency department in a critical state with a decreased level of consciousness. His condition deteriorated to the point that he was being kept alive by mechanical ventilation and kidney dialysis. The hospital sought a judicial declaration to determine the validity of his advance directive.

McDougall J confirmed that the directive was valid and held that the hospital must respect this decision. His Honour stated and applied the common law principle that:

A person may make an 'advance care directive': a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and it is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive.[43]

Brightwater Care Group v Rossiter:[44]

This case, also dubbed the ‘right to starve’ case, concerned a contemporaneous rather than anticipatory refusal of treatment by Mr Rossiter, a man with quadriplegia who was ‘unable to undertake any basic human functions’, including taking nutrition or hydration orally. Mr Rossiter was not terminally ill, dying or in a vegetative state and had full mental capacity. He had ‘clearly and unequivocally’ indicated that he did not wish to continue to receive medical treatment which, if discontinued, would inevitably lead to his death.

Martin CJ considered the position at common law and concluded:

[A]t common law, the answers to the questions posed by this case are clear and straightforward. They are to the effect that Mr Rossiter has the right to determine whether or not he will continue to receive the services and treatment provided by Brightwater and, at common law, Brightwater would be acting unlawfully by continuing to provide treatment [namely the administration of nutrition and hydration via a tube inserted into his stomach] contrary to Mr Rossiter's wishes.[45]

These cases concern the common law position regarding the doctor-patient relationship and provision of medical treatment in general, rather than the issue of passive voluntary euthanasia specifically. Further research is needed to confirm the current common law position in relation to passive voluntary euthanasia practices.

2.2 Comparative international legislative schemes

As the above section demonstrates, the regulation of passive voluntary euthanasia practices in Australia is complex and, in some aspects, inconsistent. Generally, however, the Australian context reflects trends in comparable international jurisdictions, as shown by the following overview of comparative regulation and jurisprudence.

(a) United States of America

Legislation providing for advance directives (often referred to as ‘living wills’) and/or enduring power of attorney exists in all states in the United States. These instruments allow competent adults to state, in advance, that they do not wish to be kept alive by medical treatment in the latter stages of terminal illness.[46] Legislation in some states gives a patient’s family members the power to make decisions about life-sustaining medical treatment in situations where the patient has become incompetent and has not made an advance directive.[47]

(b) United Kingdom

Under the Mental Capacity ActUK (2005),[48] ‘advance decisions’ give a person the right to make a decision to refuse healthcare treatment in advance, including in situations where this would result in their death.[49] Advance decisions are legally binding and any person who withholds or withdraws treatment in accordance with a valid and applicable advance decision will not incur liability.[50]

The UK Act also allows a person to appoint an agent to act on their behalf in the event that they lose capacity in the future, in the form of a ‘lasting power of attorney’.[51] The attorney can be expressly authorised to give or refuse consent to medical treatment, including life-sustaining treatment.[52]

(c) Canada

Many of the provinces in Canada (e.g. British Colombia, Saskatchewan, Manitoba and Nova Scotia)[53] have enacted legislation that permits people to make advance directives (variously termed). These instruments record a person’s wishes or instructions regarding their future health care, and permit a person to appoint a substitute decision-maker to make health care decisions on their behalf if they become incompetent.

2.3 Summary

This section has outlined the circumstances in which individuals or their authorised agents can decide to withhold or withdraw medical treatment, including where this would result in death.

While the regulatory approach varies between Australian states and territories, all states and territories permit people, in one form or another, to formally communicate their wishes in end of life situations, an approach reflected by international practice.

Passive voluntary euthanasia thus appears to be largely accepted within current medical practice (and, in most jurisdictions, generally recognised and permitted by law), despite the refusal of medical practitioners and policy makers to describe these activities in such terms.

3 Active voluntary euthanasia

The acceptance of the practice of passive voluntary euthanasia, however defined, is in stark contrast to the practice of ‘active’ voluntary euthanasia.

Active voluntary euthanasia can be said to occur when medical intervention takes place, at the patient’s request, in order to end the patient’s life. In contrast to passive voluntary euthanasia, which involves an ‘omission’ of steps or treatment, active voluntary euthanasia concerns a person undertaking positive steps to end a life. This can include administering high doses of painkillers that hasten death or providing and/or injecting a lethal substance or dose to end life.

Thus, unlike passive euthanasia, in which the cause of death is the underlying disease or condition, with active voluntary euthanasia the death results from the action of a medical professional or other party.

The Senate Legal and Constitutional Affairs Legislation Committee’s Inquiry into the Exposure Draft of the Medical Services (Dying with Dignity) Bill 2014 (Senate Inquiry) received hundreds of submissions in support of and against the Bill. As will be explored in section 4.2 below, that Bill sought to legalise and regulate active voluntary euthanasia.[54]

Some of the major arguments for and against the legalisation of active voluntary euthanasia as raised at the Senate Inquiry are summarised below, followed by an overview of the current legal situation, in section 3.3.

3.1 Arguments against legalising active voluntary euthanasia

(a) Role of the doctor

Arguments against the legalisation of active voluntary euthanasia include the view that such practices undermine the ‘role of the doctor’ as a ‘healer’, as characterised by the Hippocratic Oath.[55] For example, the Family Council of Victoria stated in its submission to the Senate Inquiry that:

When the medical profession becomes involved in killing, the delicate trust relationship between a patient and doctor is undermined. People trust their lives to doctors and health care workers in the knowledge that they are dedicated to the preservation of life, to healing, to caring. This after all is the basis of the Hippocratic tradition. The Hippocratic Oath includes the commitment not to kill a patient, even if the patient requests such a course.[56]

This is a contested view. An alternative argument is that the relationship between doctor and patient can be more suitably defined in the terms of a provider/consumer relationship, whereby the patient as a consumer ‘can ask for whatever he or she wants’, and the doctor ‘can choose whatever he or she wants to provide.’[57] Under such an interpretation, a doctor taking action which could fall within the meaning of active voluntary euthanasia may be justified.

(b) Palliative care

Linked to this argument is the role of palliative care. A number of people submitted to the Senate Inquiry that the introduction of voluntary euthanasia would undermine investment in, as well as the role and value placed on, palliative care.[58]

In his evidence to the Senate Inquiry, Assistant Professor Andrew Cole, a palliative care specialist, outlined that providing effective palliative care and support could be an alternative to euthanasia. He explained:

[H]astening times is not necessarily the way forward. Rather, it is providing care and support, letting the natural processes take their course and choosing to withdraw therapies that are not reasonable or not helpful.[59]

Others argued that the introduction of active voluntary euthanasia would not undermine palliative care but would instead provide an additional option within the palliative care process.[60] This argument is based on the premise that there will be circumstances ‘where even the best palliative care will not relieve the suffering or distress of a terminally ill patient’.[61] For example, the South Australian Voluntary Euthanasia Society explained:

It is widely acknowledged, including by Palliative Care Australia and the Australian Medical Association, that even the best of palliative care cannot help all patients – between 5-10% find their suffering so unbearable that they persistently request an assisted death. Our palliative and medical care is highly regarded, but it can never be 100% effective.[62]

(c) Slippery slope

The Senate Inquiry heard from a number of groups warning against the ‘slippery slope’ effect that would result from the enacting of active voluntary euthanasia legislation. Specifically, the concern is that the legalisation of voluntary euthanasia in terminal cases would then lead to the practice of other forms of euthanasia such as involuntary euthanasia or voluntary euthanasia in non-terminal cases.[63] For example, the Australian Christian Lobby (ACL) stated that:

[W]e have clearly seen the slippery slope well and truly in action in Holland and in Belgium, in particular, where we have seen people being euthanized without their specific consent. That is not voluntary euthanasia.[64]

However, many submissions countered this view. For example, Professor Margaret Otlowski argued that:

The most commonly cited objection to the legalisation of active voluntary euthanasia is the 'slippery slope' argument: that the legalisation of active voluntary euthanasia would lead to widespread involuntary euthanasia and the termination of lives no longer considered socially useful. This is, however, a completely unsubstantiated argument. The 'slippery slope' argument is typically made without regard to the risks of abuse or other problems involved in retaining the present law.13

Similarly, Christians Supporting Choice stated:

From my understanding, in Oregon they have had this legislation for 17 years and they have done studies which have shown that this slippery slope you are referring to does not exist. It is a scaremongering tool used by those who are ideologically opposed to the proposed legislation and who will do anything they can to stop the law. We in Christians Supporting Choice side with loving compassion and mercy and not with religious dogmatic adherence to a particular point of view...There is no slippery slope.16

Further, there were criticisms that the slippery slope argument, in being focused on the potential for active voluntary euthanasia to lead to other, more controversial forms of euthanasia, did not provide a strong argument against the practice of active voluntary euthanasia itself. Mr Peter Short, a man with terminal cancer who appeared before the Committee, argued:

Is it rational to take a position of denying the terminally ill and suffering the choice at the end of their life, because we are concerned we cannot put effective rules around a dying process? We manage road rules, alcohol rules and smoking rules. All are slippery slopes far more difficult and destructive, but all well-accepted in society and in law.[65]

Finally, Dying with Dignity Victoria argued that a ‘slippery slope’ was more likely to occur ‘in an environment where voluntary euthanasia is prohibited rather than [in] a society where a transparent, legislative framework regulates the occurrence.’[66]

3.2 Arguments in support of legalising active voluntary euthanasia

(a) Legitimacy and transparency

This leads to a broader, related argument in support of a legislative approach which would introduce ‘appropriate scrutiny, support and regulation’ so that this practice that is ‘already occurring’ is undertaken in a safe as possible manner.[67] The law would also provide much-needed certainty as well as necessary safeguards for patients and for doctors who provide assistance.[68]

(b) Personal autonomy – the right to choose

A number of submitters to the Senate Inquiry saw the decision to end one’s life as a ‘personal one’,[69] underpinned by ‘the basic principle of respecting an individual’s right to choose’.[70] In a 1994 US Federal District Court decision on assisted suicide, the judge relied on the claim by three Supreme Court Justices in an abortion case that:

Matters involving the most intimate and personal choices a person may make in a life-time are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, or meaning, of the universe, and of the mystery of human life.[71]

In the Australian context, Professor George Williams argues that the judge’s decision in the Rossiter case was one ‘based upon the autonomy of the individual’[72] – specifically a person’s right to refuse food in order to bring about their own death.[73] However in his view ‘the law places major limits on autonomy’ where ‘the right to choose does not extend to the more dignified and humane option of voluntary assisted dying’.[74]

A number of these moral and ethical concerns are summarised in an excerpt of an article published by Father Frank Brennan:

Many Australians still believe that physician assisted suicide is wrong. While prepared to see a machine turned off, they are opposed to the administration of a lethal injection. They would never seek it for themselves. As health professionals they would never provide such assistance. Others are worried by the possible abuses, fearing that a lethal injection could be administered during a down period in a person’s life, which need not necessarily be the end. But should there be a law against the administration of the injection given that many other Australians believe individuals should have a right to choose?[75]

3.3 Current legal framework

This section will consider the current state of the law within Australia in respect of the regulation of active voluntary euthanasia. As the regulation varies depending on the practice in question, three different types of active voluntary euthanasia practice will be considered:

  1. Where the patient (in excruciating pain) requests the doctor to relieve pain and the doctor administers increased doses of pain-killing drugs that hastens the patient’s death;

  2. Where the patient wants to die and asks the doctor for assistance (prescribing drugs, setting up a mechanism, providing advice) but the lethal act is performed by the patient rather than the doctor;

  3. Where the patient wants to die and asks the doctor for assistance where the lethal act is performed by the doctor.[76]

Each of these scenarios is considered in turn below.

(a) Where the patient (in excruciating pain) requests the doctor to relieve pain and the doctor administers increased doses of pain-killing drugs that hasten the patient’s death

The administering of painkillers in this context is considered an ‘active voluntary euthanasia’ practice for the purposes of this paper because the administering of painkillers is an ‘active act’ (as opposed to an omission) which can ‘hasten death’. A somewhat open question at common law and in legislation regulating this practice is the meaning of ‘hastens death’. One interpretation is that the administering of a significantly increased level of painkiller causes (and therefore ‘hastens’) death. Another interpretation is that when treatment is withheld, resulting in an increase of pain, painkillers are used to abate the pain for long enough so that the illness takes over and ‘hastens’ death in a relatively painless manner.

A number of legislative provisions that regulate the use of painkillers in this context refer for guidance to ‘reasonable treatment’, ‘good medical practice’ and ‘proper professional standards of palliative care’ (see the section below entitled ‘Legislation’). The Australian Medical Association (AMA) characterises ‘the administration of treatment or other action intended to relieve symptoms which may have a secondary consequence of hastening death’ as part of ‘good medical practice’.[77] Presumably this would include the administering of painkillers. However, the acceptable level of painkillers in the circumstances, and whether it is incidental to or causative of a ‘hastened’ death, remains a grey area in the absence of express determination by the courts. Further research would need to be undertaken to confirm whether this has been determined. Arguably, a massive dose of painkillers that ‘cause’ death could be described as a lethal injection ‘by proxy’. In policy terms, it seems unlikely that current legislative provisions extend to cover this scenario, though in the absence of judicial clarification on what is considered ‘reasonable’ this remains unclear. For this reason the regulation of this practice is considered within the active voluntary euthanasia section with this caveat.

(i) Common law

As of the mid-nineties, there had been no criminal prosecutions of doctors in Australia in relation to their administration of pain relieving drugs that have hastened death.[78] Further research needs to be undertaken to confirm this is still the case.

In the UK (as at the mid-nineties) an exception existed at common law if the doctor’s intention could be described as an intention to relieve pain in terminal situations rather than as an intention to end the patient’s life.[79] In the absence of the required judicial clarification in Australia, it cannot be assumed that the legal ‘exception’ that exists in English law would necessarily form part of Australian criminal law.[80] It has been suggested that under a strict interpretation of the relevant Australian homicide laws a doctor may not be immune from liability for murder in this situation.[81] Even though the doctor may not have ‘intended’ to cause death, administering drugs in the ‘knowledge’ that the patient may die as a result may give rise to liability for murder.[82] In the absence of a determinative case the issue remains untested. The relevant legislative provisions are detailed below.

(ii) Legislation

Legislation in South Australia, Western Australia and Queensland provides some clarification regarding whether and in what circumstances a doctor providing pain relief which hastens death will be criminally liable. The common law position appears to be unaffected by legislation in Victoria, Tasmania, New South Wales and the ACT (in the case of the latter, however, within the context of a statutory right to pain relief). The situation in the Northern Territory is less clear.

Consent to Medical Treatment and Palliative Care Act 1995 (SA):

Section 17(1) applies to the situation where a doctor administers medical treatment to a patient in the terminal phase of an illness ‘with the intention of relieving pain or distress’, where ‘an incidental effect of the treatment is to hasten the death of the patient’.[83] This section provides that the doctor will not be found liable under criminal or civil law if the treatment was undertaken with consent; in good faith and without negligence and in accordance with proper professional standards of palliative care.[84] This provision accords with the UK exception.

Guardianship and Administration Act 1990 (WA):

In Western Australia the Act provides that if a health care professional commences or continues palliative care in accordance with an advance health directive or a decision by an enduring guardian, the health professional is taken to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.[85]
Also, in 2008 the Western Australian Criminal Code was amended to provide that:

a person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care)...to another person for that other person’s benefit...if the administration of the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.[86]

Criminal Code Act 1899 (Qld):

Section 282A of the Act absolves a doctor (or a person acting under a doctor’s orders) of criminal responsibility for providing palliative care where such provision is provided ‘in good faith and with reasonable care and skill’ and ‘is reasonable, having regard to the other person’s state at the time and all the circumstances of the case’.[87] The Act makes clear that no liability will arise ‘even if an incidental effect of providing the palliative care is to hasten the other person’s death’.[88] The pain relief will only be judged as ‘reasonable’ if it is ‘reasonable in the context of good medical practice’.[89]

Palliative care for the purposes of that section is defined as ‘care, whether by doing an act or making an omission, directed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering.’[90] Section 282A makes clear that the protection from liability depends on the intention behind the administration of the medication; it provides that ‘nothing in this section authorises, justifies or excuses (a) an act done or omission made with intent to kill another person; or (b) aiding another person to kill himself or herself.’[91]

Medical Treatment Act 1988 (Vic):

The Act provides that its operation ‘does not affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care’.[92] The definition of palliative care includes the provision of ‘reasonable medical procedures for the relief of pain, suffering and discomfort’.[93] Accordingly the Victorian legislation leaves the common law position intact in terms of possible criminal liability for this type of active voluntary euthanasia.[94]

Medical Treatment (Health Directions) Act 2006 (ACT):

Similar to the Victorian legislation, the Act provides that it ‘does not affect any right, power or duty that a medical practitioner or any other person has in relation to palliative care’.[95] It has a similar palliative care definition as including ‘the provision of reasonable medical and nursing procedures for the relief of pain, suffering and discomfort’.[96]

However s 17 of the ACT Act gives statutory recognition to the right of the patient to pain relief. That section provides that a person who has given a health direction that medical treatment be withheld or withdrawn has ‘a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances’.[97] The Act does not indicate what would be ‘reasonable’ for these purposes, merely stating that a health professional must ‘give adequate consideration to the person’s account of the person’s level of pain and suffering’ when administering pain relief to a patient.[98]

Criminal Code Act 1924 (Tas):

Section 154 of the Criminal Code Act 1924 (Tas) provides that:

A person is deemed to have killed another in the following cases where his act or omission is not the immediate, or not the sole, cause of death...(d) where by any act or omission he hastens the death of another who is suffering under any disease or injury which would itself have caused death.

There does not appear to be any statutory exception to this provision for medical professionals providing pain relief.

Crimes Act 1900 (NSW):

There is no provision in the Crimes Act 1900 (NSW) dealing with the administering of pain relief which hastens death.

Advance Personal Planning Act 2013 (NT):

The situation in the Northern Territory is less clear. The Advance Personal Planning Act 2013 (NT) refers to ‘health care’ to which a person can consent under that Act. There is no express reference to palliative care (or therapeutic measures) within the definition of ‘health care’. The Act refers to ‘unlawful health care action’, and provides that ‘this Act does not permit the form of intentional killing of another called euthanasia or the assisting of a person to terminate his or her life’.[99]

The NT Criminal Code does not appear to make any exceptions or provide any defences in relation to the provision of pain relief which hastens death. Section 26(3) of the Code provides that ‘a person cannot authorise or permit another to kill him or, except in the case of medical treatment, to cause him serious harm’. Read together these provisions seem to suggest that while consent to pain relief is permitted, pain relief that ‘hastens death’ may not be covered.

Quite apart from the question of whether the ‘hastening of death’ is caused by or incidental to the administering of painkillers, regulation of this issue is complex and, in many respects, inconsistent across jurisdictions. In contrast the laws that regulate what is clearly described as a ‘lethal act’ (as covered in the following two scenarios) are largely consistent across jurisdictions. However the use of various mechanisms within the criminal justice system to mitigate outcomes in these two situations makes the issue less clear.

(b) Where the patient wants to die and asks the doctor for assistance (prescribing drugs, setting up a mechanism, providing advice) but the lethal act is performed by the patient rather than the doctor

(i) Criminal law

Although the law in Australia no longer criminalises suicide or attempted suicide, assisting suicide is a crime in all Australian states and territories:

  • In New South Wales, the ACT and Victoria, it is an offence for a person to (1) ‘aid or abet’ a person to commit or attempt suicide, or (2) to ‘incite’ or ‘counsel’ a person to commit suicide if the person does in fact do so (or attempts to do so) as a consequence.[100]
  • In Queensland and Western Australia, it is an offence to ‘procure’, ‘counsel’ or ‘aid’ another person to commit suicide.[101]
  • In South Australia ‘a person who aids, abets or counsels the suicide of another, or an attempt by another to commit suicide, shall be guilty of an indictable offence.’[102]
  • In Tasmania it is an offence to ‘instigate or aid another to kill himself’.[103]
  • In the Northern Territory it is an offence to intentionally ‘assist’ or ‘encourage’ a person to kill (or attempt to kill) themselves, but only if the person does commit or attempt suicide and the perpetrator’s conduct was in fact a contributing factor.[104]

(ii) How is the law enforced?

As of the mid-nineties, prosecutions for assisting suicide were rare and where they occurred involved provision of assistance from family members or friends with ‘compassionate motives’.[105] This is sometimes described as ‘mercy-assisted suicide’.[106] The law is clear that liability for assisting suicide cannot be avoided by compassionate motives or other extenuating circumstances.[107] Nevertheless, Australian judges have imposed very lenient sentences on people convicted of assisting suicide in these circumstances.[108] Further research would be required to confirm that this remains the general approach.

Note that when the Northern Territory first enacted active voluntary euthanasia legislation in 1996 (described in detail in the next section) physician-assisted suicide was legal in some circumstances.[109] Shortly thereafter the Act was overridden by the Commonwealth, rendering it defunct.

While the criminal law comprehensively and largely consistently regulates this issue, the use of mitigation mechanisms reveal different policy considerations being employed in this context. Attempts at balancing ‘intention’ and ‘outcome’ against an appropriate punitive response seem to underpin this approach. A similar situation can be noted in the third ‘active voluntary euthanasia’ scenario below.

(c) Where the patient wants to die and asks the doctor for assistance where the lethal act is performed by the doctor

(i) Criminal law

If a doctor complies with a patient’s request and performs an act that ends the patient’s life, the doctor will be exposed to criminal liability, namely the offence of murder.[110] In all Australian states and territories, a person who commits an act which causes the death of another, with the intention to cause death, is liable for murder.[111] Life imprisonment is the mandatory sentence for a conviction of murder in the Northern Territory, Queensland, and South Australia.[112] In Western Australia, there are some exceptions to the otherwise mandatory imposition of a sentence of life imprisonment for murder.[113] The sentence for murder is discretionary (with life imprisonment as the maximum sentence) in New South Wales, Victoria, Tasmania and the ACT.[114]

(ii) How is the law enforced?

As of 1996-97, no doctor had been prosecuted for murder in Australia for performing active voluntary euthanasia.[115] Further research is needed to confirm that this is currently the case. There have been a number of cases involving family members and friends, referred to as ‘mercy killing cases’.[116] Similar to assisted suicide provisions, compassionate motives or other extenuating circumstances are not relevant as a defence to liability for murder, but the Australian criminal justice system has treated this situation with leniency:[117]

... a number of mechanisms within the criminal justice system have been invoked to temper the rigours of the criminal law in true instances of mercy killing...These include the exercise of prosecutorial discretion, acquittals (either by the judge or the jury) or findings of guilt on a lesser charge, lenient sentencing by the courts, favourable parole determinations, and the exercise of executive leniency.[118]

As with the second scenario above, criminal law comprehensively regulates this practice, yet available mechanisms have been used to temper the application of these laws and to mitigate outcomes. Against the backdrop of the criminal justice system grappling to find a satisfactory response to these situations, legislation has been proposed in Australia to clarify the regulation of, and make consistent, active voluntary euthanasia practices. These legislative schemes are summarised below.

4 Legislative attempts to regulate active voluntary euthanasia

A number of states and territories have made attempts to legalise active voluntary euthanasia. In November 2013 the Voluntary Assisted Dying Bill 2013 was defeated by only two votes in the Tasmanian Parliament. To date only the Northern Territory has been successful in enacting legislation (the Act having been subsequently constitutionally overridden by the Commonwealth). Even today the Northern Territory’s statutory scheme is of continuing relevance as it has formed the benchmark for subsequent reform proposals, including the proposed scheme currently before the Commonwealth Parliament.

The key features of the Northern Territory Act are summarised below. Also summarised is the proposed Commonwealth scheme which attempts to introduce a federal regime to regulate active voluntary euthanasia. Being a federal scheme, issues are raised relating to the constitutional power the Commonwealth possesses to enact such legislation, which are also discussed.

4.1 Rights of the Terminally Ill Act 1995 (NT)

The Rights of the Terminally Ill Act 1995 (NT) (NT Act) Act set out a statutory regime under which physician-assisted suicide and active voluntary suicide were permitted without violating the criminal or any other applicable law.[119]

The NT Act provided for neither an unqualified ability to end life nor an unqualified affirmation of a competent adult’s right to assistance in dying.[120] Instead the Act allowed a doctor to comply with a request from a terminally ill, competent adult patient for assistance in ending the patient’s life where specified conditions were satisfied.[121] Such conditions included:

  • The terminal illness is causing the patient ‘severe pain and suffering’ and there are no palliative care options that alleviate this to a level acceptable to the patient.[122]
  • Having been given information on prognosis and treatment options by a palliative care specialist, the patient informs the doctor of a desire to end their life.[123]
  • The doctor is satisfied as to the terminal nature of the prognosis and that the only medical treatment available is palliative care (a specialist doctor must confirm the doctor’s prognosis and a psychiatrist must confirm the patient is not suffering from a treatable clinical depression).[124]
  • A patient (or where physically unable, an agent of the patient) must sign a witnessed certificate of request (no witness must knowingly stand to gain a financial or other advantage as a result of the death), and the patient must have access to a qualified interpreter where required.[125]
  • The imposition of two ‘cooling off’ periods.[126]

Even where all these conditions had been met, the patient was entitled ‘at any time and in any manner’ to rescind the request for assistance in dying.[127] Also a doctor who received a request to assist with euthanasia could ‘for any reason and at any time, refuse to give that assistance’.[128] Where the doctor assisted the patient, the doctor could do so by prescribing and/or preparing and/or administering the most appropriate lethal substance.[129] The doctor was required to provide information to friends and family, answer questions afterwards and keep detailed written records (including reporting the death to the Coroner who in turn reports to the Attorney-General).[130]

A doctor who complied with the legislative regime and assisted in euthanasia was immune from legal and professional disciplinary action provided the assistance was undertaken in good faith and without negligence.[131] This immunity extended to other relevant health professionals.[132] Strict penalties were imposed for threats to a doctor or other person to assist; deception/improper influence to procure the signing and/or witnessing of a certificate of request and failure to comply with record-keeping and reporting requirements.[133]

(a) Constitutional issues

The Commonwealth Parliament has the power under section 122 of the Australian Constitution to enact its own legislation to override the NT Act.[134] The power under section 122 of the Constitution is a plenary power and enables the Commonwealth Parliament to pass legislation to override any Northern Territory law.[135]

Mr Kevin Andrews MP introduced a Private Member’s Bill into the Commonwealth Parliament for the express purpose of overriding the NT Act.[136] The Commonwealth Euthanasia Laws Act1997 was passed two years later which had the effect of overriding the NT Act and rendering it invalid.[137]

In March 2016 Senator Richard Di Natale introduced a Private Member’s Bill into the Commonwealth Parliament entitled the Restoring Territory Rights (Dying with Dignity) Bill 2016. The purpose of the Bill is to repeal the Euthanasia Laws Act 1997 (Cth). The Bill is not intended to restore the operation of the Rights of the Terminally Ill Act 1995 (NT), but only to restore the powers of the Legislative Assemblies in the ACT and Northern Territory to make laws in relation to voluntary euthanasia.[138]

4.2 Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (Cth)

The Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (Cth) (Draft Bill)[139] was prepared by Senator Richard Di Natale of the Australian Greens. The key features largely mirror the regime proposed under the NT Act (the detail of which will not be repeated here).

In summary, the objectives of the Draft Bill were to recognise the right of a mentally competent adult who is suffering intolerably from a terminal illness to request a medical practitioner to provide medical services to the person to end their life.[140] It also granted to a medical practitioner who provided such services immunity from liability in civil, criminal and disciplinary proceedings.[141]

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