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.
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. As will be explored in section 4.
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. 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. This is a contested view. 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.
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:. 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. 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.
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. That is not voluntary euthanasia. 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. 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. 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.
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. 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. 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? 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:.
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;. Further research would need to be undertaken to confirm whether this has been determined.
For this reason the regulation of this practice is considered within the active voluntary euthanasia section with this caveat. 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. The relevant legislative provisions are detailed below.
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. Guardianship and Administration Act 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. Medical Treatment Act Vic :. However s 17 of the ACT Act gives statutory recognition to the right of the patient to pain relief.
Criminal Code Act Tas :. 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 There does not appear to be any statutory exception to this provision for medical professionals providing pain relief. There is no provision in the Crimes Act NSW dealing with the administering of pain relief which hastens death.
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. However the use of various mechanisms within the criminal justice system to mitigate outcomes in these two situations makes the issue less clear. Although the law in Australia no longer criminalises suicide or attempted suicide, assisting suicide is a crime in all Australian states and territories:.
Note that when the Northern Territory first enacted active voluntary euthanasia legislation in described in detail in the next section physician-assisted suicide was legal in some circumstances. 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.
As of , no doctor had been prosecuted for murder in Australia for performing active voluntary euthanasia. 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.
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. A number of states and territories have made attempts to legalise active voluntary euthanasia. To date only the Northern Territory has been successful in enacting legislation the Act having been subsequently constitutionally overridden by the Commonwealth.
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. The Rights of the Terminally Ill Act 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.
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. The Commonwealth Parliament has the power under section of the Australian Constitution to enact its own legislation to override the NT Act. 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.
Key provisions set out the ability to make a request and the pre-conditions to be met in accessing dying with dignity medical services. The Senate Inquiry also considered possible issues in relation to the constitutionality of the Draft Bill, specifically the power of the Commonwealth Parliament to legislate for euthanasia.
Four constitutional heads of power have been referred to in the Draft Bill and will be considered in turn. Contrasting views were submitted to the Senate Inquiry on whether euthanasia would be covered under this head of power. A number of arguments were mounted against the use of this head of power to support the Draft Bill. This included that there was no requirement in the Bill that the medical practitioner provide the service on behalf of a constitutional corporation.
Accordingly, if the Bill is enacted but later found to be unconstitutional, medical practitioners may face the prospect of homicide charges despite fully complying with the provisions of the Bill. It seems on balance that a relevant constitutional head of power most likely the medical services power may be relied on should Parliament decide to proceed with enacting a federal active voluntary euthanasia regime.
This legislation does not impose any duty upon a doctor to participate in the provision of medication to end a patient's life. If a doctor is unable or unwilling to so participate, however, and the patient transfers his or her care to another doctor, the legislation specifies that the first doctor must comply with the patient's request to transfer a copy of relevant medical records to the new doctor. The Oregon Death With Dignity Act has not yet come into operation as its operation has been suspended by injunction pending the results of a challenge to its constitutional validity.
This legal challenge was initiated in November by a group of doctors, patients and operators of residential care facilities. In August the Oregon Federal District Court held that the legislation was unconstitutional and therefore invalid. The District Court stated that the Fourteenth Amendment was violated because the legislation withheld from terminally ill persons the same legal protections from suicide that apply to other citizens of Oregon.
The court concluded that this withholding was not rationally related to any legitimate state interest and therefore was not justified. The legislation was said to lack sufficient safeguards to ensure that the means to commit suicide was only provided in response to a voluntary request by a competent, terminally ill patient. The result of that appeal may be influenced by the outcome in the two federal Court of Appeal cases discussed immediately below.
The question of whether a statutory prohibition on physician-assisted suicide violates an individual patient's rights under the United States Constitution was considered for the first time by a federal Court of Appeals in the recent case Compassion in Dying v State of Washington.
The case involved a challenge to the constitutional validity of a provision of a Washington statute that made it a crime to aid another person to attempt suicide.
The parties who initiated the action - four doctors, three terminally ill patients and a Washington non-profit organisation called Compassion in Dying - contended that this statutory provision was invalid to the extent that it prohibited doctors from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths.
They claimed the statutory provision was invalid on two bases:. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, 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 of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
The majority judges reached this conclusion via a two stage process of legal analysis. First, they identified a liberty interest in choosing the time and manner of one's own death. They also described this interest as a "constitutionally recognised 'right to die'". They deduced the existence of this liberty interest after examining historical attitudes towards suicide, current societal attitudes towards physician-assisted suicide and the manner of death, and previous Supreme Court decisions addressing the scope of the liberty interest under the Due Process Clause.
The majority judges believed that two of these Supreme Court decisions in particular were 'fully persuasive' as to the existence of a due process liberty interest in controlling the time and manner of one's own death. In one of these cases, the case Planned Parenthood v. Casey the Supreme Court reaffirmed a woman's liberty interest in deciding whether or not to have an abortion, on the basis that such a decision was central to her personal dignity and autonomy.
The majority judges in the instant case concluded that a terminally ill person's decision concerning how and when to die is at least as central to personal dignity and autonomy as the abortion decision. It considered that 'no decision is more painful, delicate, personal, important, or final than the decision how and when one's life shall end'.
The other Supreme Court case on which the majority relied was the case Cruzan v. Director, Missouri Department of Health. The Supreme Court in Cruzan held by a majority of that this restriction did not violate patients' rights under the due process clause. In reaching this conclusion, however, four of the five majority judges averted to the existence of a competent person's constitutionally protected right to refuse any kind of unwanted medical treatment.
The majority of the federal Court of Appeals in Compassion in Dying v. State of Washington stated that it was 'clear that Cruzan stands for the proposition that there is a due process liberty interest in rejecting unwanted medical treatment, including the provision of food and water by artificial means'.
As the Supreme Court in Cruzan had also recognised that refusal of treatment such as artificial feeding and hydration would inevitably lead to death, the Court of Appeals went on to conclude that Cruzan 'necessarily recognises a liberty interest in hastening one's own death'. Having identified a due process liberty interest in choosing the time and manner of one's own death, the majority acknowledged that this did not mean an individual has 'a concomitant right to exercise that interest in all circumstances or to do so free from state regulation'.
The majority assessed the validity of the restriction by weighing the liberty interest of the individual against six countervailing and legitimate state interests. We would be less than candid In the first case - volitional death - the physician is aiding or assisting a patient who wishes to exercise a liberty interest, and in the other - involuntary death - another person acting on his own behalf, or, in some instances society's, is determining that an individual's life should no longer continue.
We consider it less important who administers the medication than who determines whether the terminally ill person's life shall end. The majority concluded that all these state interests were at their weakest, and the liberty interest in choosing the time and manner and one's death was at its strongest, in the case of competent terminally ill individuals. The majority conceded that the state has a particularly strong interest in protecting individuals who are making life and death decisions from undue influence and other forms of abuse.
It concluded that the state therefore has a wide power to regulate the exercise by a terminally ill person of the liberty interest in choosing the time and manner of one's death, but that this power does not allow the state to ban its exercise completely.
The Washington statute prohibiting physician-assisted suicide did effectively prevent terminally ill people from choosing the time and manner of their own deaths, because most terminally ill people could not hasten their own deaths without the assistance of a physician. The Washington statute therefore imposed an unacceptable constraint on the liberty interest of terminally ill, competent adults who wished to hasten their deaths using medication prescribed by their physicians.
To the extent that the statue imposed such a constraint, it violated the Due Process Clause and therefore was unconstitutional. Having reached this conclusion, the majority considered it unnecessary to examine the argument that the Washington statute also violated the Equal Protection Clause.
The majority stated, however, that it did not agree with the reasoning of the District Court of Oregon in Lee v. The three dissenting judges concluded that the Washington statute violated neither the Due Process Clause nor the Equal Protection Clause.
In relation to the former, they denied that the statute infringed a liberty interest in choosing to commit suicide. One dissenting judge categorically denied that there was any such interest. Another dissenting judge doubted that there was any such interest, but did not finally decide the question.
The third dissenting judge accepted that there was a liberty interest in choosing to commit suicide, but characterised it as an interest of much less strength than the liberty interest in 'choosing the time and manner of one's own death' relied upon by the majority judges. The dissenting judges discussed four state interests:. The dissenting judges concluded that any liberty interest in committing suicide, possessed by a competent, terminally ill adult, was legitimately restricted by the Washington statute.
This was because the Washington statute rationally advanced the four legitimate and strong state interests identified above. Vacco et al. That case also examined the constitutional validity of a statutory prohibition on physician-assisted suicide. The provisions under scrutiny in this second case were the parts of the New York Penal Law that criminalised assisted suicide.
The provisions were alleged to be unconstitutional to the extent that they prohibited doctors from prescribing lethal medication to be self-administered by a mentally competent, terminally ill adult in the final stages of terminal illness.
The legal challenge was initiated by three doctors and three terminally ill patients. The arguments advanced by the litigants in Quill v.
Vacco et al were similar to those before the court in Compassion in Dying v. State of Washington. The New York statutory provisions were alleged to be unconstitutional on the basis that they violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
The majority of the Second Circuit Court of Appeals refused to accept that the New York statutory provisions violated any fundamental liberty interest under the Due Process Clause - specifically, the asserted right of competent, terminally ill persons to assisted suicide in the final stages of their illness. They felt unable to conclude that this right to assisted suicide could be read into the Constitution, on the basis that the Supreme Court of the United States had not yet identified this new right and had also advised restraint in identifying new fundamental rights.
The two majority judges did accept, however, that the New York statutory provisions violated the Equal Protection Clause. They stated that these provisions clearly did not treat similarly situated citizens alike. This was because the law in New York allowed patients in the final stages of terminal illness who were attached to life-support systems to hasten their deaths by directing the removal of that life support, but did not allow patients who were in a similar situation - except for the previous attachment of life-support systems - to hasten their death by self-administration of prescribed drugs.
The majority saw no valid difference, for the purposes of Equal Protection analysis, between the so-called 'passive' assistance in dying permitted by the law and the so-called 'active' assistance forbidden by the statutory provisions under scrutiny.
The majority further held that this unequal treatment was not rationally related to any legitimate state interest.
This conclusion also rested on the fact that New York law allowed patients to hasten their deaths by ordering the withdrawal of life-sustaining treatment. The majority argued that if the state considered a patient's choice to hasten death in that context to be consistent with the interests of the state, it must also be consistent with those state interests to allow a patient to choose to hasten death by taking lawfully prescribed medication.
These judges therefore concluded that the New York prohibition on assisted suicide violated the Equal Protection Clause to the extent that it applied to mentally competent, terminally-ill patients in the final stages of terminal illness who wished to self-administer lethal drugs. The third judge in this case agreed that the New York statutory provisions should be struck down. His reasoning, however, differed from that of the majority.
He concluded that the constitutional validity of the statutory prohibition in question was 'highly suspect' - both under the Due Process Clause and the Equal Protection Clause - but not clearly invalid under either clause. The constitutional validity of the prohibition depended largely on the strength of the state interests involved, but the New York legislature had not provided current and clear statements explaining which state interests the law aimed to protect.
Accordingly, this judge was prepared to strike down these particular statutory prohibitions as unconstitutional - but took no position on the constitutional validity of similar provisions which might be enacted in the future and accompanied by clear explanations of the aims of the legislators.
An appeal against this decision of the Second Circuit Court of Appeals is expected. Should this case or Compassion in Dying v. State of Washington reach the Supreme Court, it remains to be seen how the highest court in the United States of America would assess the arguments raised in these cases in relation to the Due Process Clause and Equal Amendment Clause.
Both physician-assisted suicide and active voluntary euthanasia are prohibited by the criminal law in the United Kingdom. Active voluntary euthanasia comprises murder. Murder is a common law offence in the United Kingdom and carries a mandatory life sentence. A murder charge can be reduced to manslaughter if the defendant can invoke any one of three exceptions contained in the Homicide Act UK : provocation, diminished responsibility and suicide pacts.
None of these exceptions are likely to apply in a situation where a doctor has killed a patient at the patient's request. The first attempt took place in The Bill was promoted by the Voluntary Euthanasia Legalisation Society, which had been founded a year earlier. Only competent adult patients suffering from a fatal and incurable disease accompanied by severe pain would have been able to receive this assistance. The Bill contained procedural safeguards to ensure that euthanasia was voluntary.
The patient would have needed to sign a prescribed form in the presence of two witnesses. This form and two medical certificates would then be sent to an official euthanasia referee appointed by the Minister of Health.
The official euthanasia referee would then interview the patient to assess whether the patient's request was voluntary. Only then would euthanasia be performed, in the presence of an official witness - a justice of the peace, a barrister, a solicitor, a doctor, a minister of religion or a registered nurse.
The Bill failed at its second reading stage, defeated by a vote of The House of Lords next debated the issue of active voluntary euthanasia in , when Lord Chorley introduced a Motion 'to call attention to the need for legalising voluntary euthanasia'.
The Motion was withdrawn without a vote after vigorous debate. In Lord Raglan introduced a Private Member's Bill into the House of Lords that sought to legalise active voluntary euthanasia in certain circumstances. The general purpose of the Bill was stated in its Explanatory Memorandum to be 'to authorise physicians to give euthanasia to a patient who is thought on reasonable grounds to be suffering from an irremediable physical condition of a distressing character, and who has, not less than 30 days previously, made a declaration requesting the administration of euthanasia in certain specified circumstances one or more of which has eventuated.
There was no division on the Bill and therefore no vote. Baroness Wootton's Incurable Patients' Bill , defeated at its second reading in the House of Lords in , emphasised the entitlement of an 'incurable patient' to 'take steps that may cause his own death'.
This would have legalised physician-assisted suicide in certain circumstances. The Bill aimed to introduce a defence to a prosecution for assisting suicide under the Suicide Act , which would operate if the accused had 'behaved reasonably and with compassion and in good faith'.
This Bill failed at its first reading stage in November , by 48 votes to The House of Commons refused leave by votes to The most recent attempt to enact this kind of legislative reform took place in The Voluntary Euthanasia Bill sought to allow a doctor to accede to an incurably ill patient's written and witnessed request for help in hastening death.
The Bill would have permitted a doctor to provide advice, counselling, assistance or euthanasia defined as 'any act at the request of a person which procures directly or indirectly the rapid death of that person at their own hand or otherwise'.
The Bill was withdrawn before any vote was taken. Bland, a Select Committee was established to investigate the legal, ethical and social issues surrounding medical treatment decisions at the end of life. The Select Committee received written and oral evidence from a wide range of interested individuals and organisations. In this report, the Select Committee recommended that there be no change to the current law prohibiting active voluntary euthanasia and physician-assisted suicide.
In relation to active voluntary euthanasia, it was the opinion of the Select Committee that the right to refuse medical treatment 'is far removed from the right to request assistance in dying'. The Select Committee did not consider that the arguments in favour of legalising voluntary euthanasia were 'sufficient reason to weaken society's prohibition of intentional killing' which it considered to be 'the cornerstone of law and of social relationships'.
The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole. In relation to physician-assisted suicide, the Select Committee identified 'no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection'.
The Select Committee acknowledged that its rejection of voluntary euthanasia and physician-assisted suicide as options for the individual entails 'a compelling social responsibility to care adequately for those who are elderly, dying or disabled'.
In relation to active voluntary euthanasia, the Government stated that it 'strongly supports the Committee's rejection of the case for the legalisation of euthanasia and endorses the reasoning by which it has arrived at its conclusion'. In relation to assisted suicide, the Government agreed that the law should not be changed. It stated that such change 'would be open to abuse and put the lives of the weak and vulnerable at risk'.
The Government responded as follows to the Select Committee's assertion that rejection of euthanasia means society has a compelling responsibility to care adequately for those who are elderly, dying or disabled:. The Government agrees. The Patient's Charter affirms the right of every citizen of whatever age to receive health care on the basis of clinical need.
Similarly local authorities are required to arrange appropriate community care services for everyone who needs them.
We expect these services to be tailored as far as possible to the needs of the individual person receiving them. The British Government has subsequently reiterated its opposition to changing the law in relation to active voluntary euthanasia and physician-assisted suicide, in written answers in Parliament in April and January The possibility of law reform in this area nonetheless remains alive in Great Britain.
Public debate remains vigorous and may become even more so as the next General Election approaches. Future attempts to change the law are likely to concentrate initially on legalising physician-assisted suicide rather than active voluntary euthanasia.
The Voluntary Euthanasia Society, which now has over 20 members, has prepared a Draft Bill to amend the Suicide Act to allow physician-assisted suicide in certain circumstances. The Draft Bill is currently being widely circulated for comment.
That research project has surveyed the attitudes of health care professionals and of the general public to the legal status of physician-assisted suicide. The results of this research will be published in August The report is expected to include a Draft Bill for the legalisation of physician-assisted suicide. Since mid, the Centre of Medical Law and Ethics at King's College London, University of London, has convened a multidisciplinary working party to assess legal and ethical issues in relation to physician-assisted suicide.
This working party is expected to produce a report some time in the future. Both physician-assisted suicide and active voluntary euthanasia are prohibited under the Canadian Criminal Code. The constitutional validity of the criminalisation of physician-assisted suicide was examined by the Supreme Court of Canada in , in the well-publicised Rodriguez case.
The applicant in the Rodriguez case, Sue Rodriguez, was a competent 42 year old woman suffering from amyotrophic lateral sclerosis 'Lou Gehrig's disease'. This incurable disease destroys cells in the spinal cord and brain stem and progressively leads to paralysis. It usually leads to death by suffocation due to loss of control over lungs and diaphragm.
As the disease does not ordinarily affect mental capacity, sufferers tend to remain competent and aware of their progressive physical deterioration. Sue Rodriguez wanted to be able to choose to die, if and when she reached the point when she no longer wished to continue living with her disease. She anticipated that this would occur at a time when she lacked the physical capacity to end her own life.
She therefore sought a court declaration that it would be lawful for a doctor 'to set up technological means by which she might, by her own hand, at the time of her choosing, end her suffering, rather than prolong her death'. She claimed that section b of the Canadian Criminal Code , which makes it an offence to aid or abet suicide , was invalid to the extent that it prevented a terminally ill person from committing physician-assisted suicide. She argued that the prohibition in section b violated her rights under a number of sections of the Canadian Charter of Rights and Freedoms hereafter, 'the Charter ' :.
The majority of the Supreme Court of Canada conceded that section b of the Criminal Code deprived Ms Rodriguez of security of her person under section 7 of the Charter , because it deprived her of autonomy over her person and caused her physical pain and distress.
The majority concluded, however, that this deprivation accorded with principles of fundamental justice and therefore did not violate section 7. The majority placed heavy reliance on its observation that there was social consensus in Canada and beyond that human life should be protected and respected. The majority stated that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.
Rather, it was an appropriate legal protection designed to protect vulnerable members of society who might otherwise be persuaded to commit suicide. The blanket prohibition was further justified by a need to ensure maintenance of a belief in the sanctity of human life, and by concerns that legalising physician-assisted suicide could not incorporate adequate safeguards against abuse. The majority therefore concluded that, in this context, society's interest in the preservation of all human life should prevail over Ms Rodriguez's personal security interest.
Three of the four dissenting judges disagreed on the above interpretation of section 7 of the Charter. They did not agree that the infringement of Ms Rodriguez's right to security of the person was justified under any principle of fundamental justice. The dissenting opinion of Madam Justice McLachlin contained a particularly forceful rejection of the argument that Ms Rodriguez should be denied individual choice in this matter:. Sue Rodriguez is asked to bear the burden of the chance that other people in other situations may act criminally to kill others or to improperly sway them to suicide.
She is asked to serve as a scapegoat. The majority of the Supreme Court of Canada disposed of the argument that section b violated Ms Rodriguez's rights under section 12 of the Charter simply by concluding that 'a mere prohibition by the state on certain action, without more, cannot constitute 'treatment' under section12'.
The dissenting judges did not address the section 12 issue. For the purposes of argument, the majority judges assumed that section b violated Ms Rodriguez's right to equality under section 15 1 of the Charter. They went on to conclude, however, that the infringement of section 15 1 was justified under section 1 of the Charter. Section 1 provides that the rights and freedoms protected by the Charter can be subject 'to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'.
The majority judges stated that the prohibition in s b was both reasonable and justified in order to give effect to the valid state objective of protecting the vulnerable from others who may wish to end their lives. This was not the view of Chief Justice Lamer, whose dissenting judgement was based on section 15 1 of the Charter.
He concluded that the discriminatory effect of section b - which denied physically disabled persons unable to commit suicide without assistance the right to choose that option, where it was lawfully available to the able bodied - was not justified under section 1 of the Charter. He did not consider that the prospect of abuse of those vulnerable to manipulation by others justified this discriminatory restriction on the rights of persons who were not vulnerable in that way, and who would voluntarily choose to die.
Despite loosing her legal action, Ms Rodriguez ended her own life in February in her home in British Columbia. She did so with the assistance of an unidentified doctor. No charges were laid against the doctor in relation to Ms Rodriguez's death. Following the Supreme Court's decision in the Rodriguez case, in November the prosecution guidelines for cases where a doctor has complied with a patient's request to hasten death were relaxed in British Columbia.
One commentator describes this relaxation as follows:. This change has opened the door to active euthanasia under certain circumstances. From an ethical perspective, it calls on a doctor to allow death with dignity and comfort when death of the body appears inevitable. The guidelines give public prosecutors broader discretion, on a case-by-case basis, to determine whether a doctor whose treatment for a terminally ill patient hastens death should be charged.
Prosecutors are to consider two issues in deciding whether to recommend charges: substantial likelihood of conviction, and the public interest. The public interest criterion under these guidelines requires the following factors to be considered: The Rodriguez case also provided an impetus for the setting up in February of a Special Committee of the Senate of Canada to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide.
The report of this committee - entitled Of Life and Death - was tabled on 6 June The report contains recommendations relating to palliative care, pain control and sedation practices, withholding and withdrawal of life-sustaining treatment, advance directives, assisted suicide and euthanasia divided into three categories: 'nonvoluntary euthanasia', 'voluntary euthanasia' and 'involuntary euthanasia'. The recommendations most pertinent to the situation addressed in the Rodriguez case are those relating to 'assisted suicide', encompassing physician-assisted suicide:.
The recommendations relating to 'voluntary euthanasia', meaning active voluntary euthanasia, are also relevant:. There is If shortening of life results from the use of adequate doses of ana analgesic drug, this is not the same as intentionally terminating life by overdose.
Any hastening of death that is linked to adequate pain control measures simply means that the patient could no longer tolerate the therapy necessary for a bearable and dignified life. A person is not criminally responsible if he or she gives such palliative care as is reasonable in the circumstances, for the control or elimination of a person's pain and suffering even if such care shortens that person's life, unless the patient refuses such care.
There is a translation difficulty in connection with the legal concept noodtoestand. The technically correct translation is ' situation of necessity', and the defence of necessity is, in general terms, the same in Dutch law as in the common law.
However, in the case of euthanasia the 'necessity' which has been recognised by the Dutch courts is not a general necessity but a specifically medical one, measured in terms of the state of medical knowledge and the professional norms of doctors, and it seems clear that no one but a doctor can successfully invoke it.
There is, therefore, an argument to be made for translating the term as 'medical necessity'. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water. The District Court's quick and untroubled conclusion that there is no legally constitutionally significant difference between assisted suicide and the termination of medical treatment is also somewhat troubling.
These judgments were grounded in the common law position that unconsented-to medical treatment, like other unconsented-to touchings, is an assault or battery, and therefore patients have a presumptive right to refuse medical treatment.
Whatever the merits of extending this doctrine to the extreme at which medical treatment can be refused in all circumstances, even when death is the likely result as most United States courts have held , there is no means in logic to extend the right to refuse treatment to include the right to insist on harmful treatment, however little the difference may be in real-life consequences or however formalistic the distinction may seem to some. The Court of Appeals for the Ninth Circuit did attempt at some length to justify its extension of the right to refuse treatment to include the right to insist on harmful treatment.
That justification, however, appears under its later discussion of whether the state's interest in preventing suicide should defeat the pre-existing liberty interest in choosing the time and manner of one's own death, not under its discussion of the scope of the liberty interest itself.
The Oregon District Court's reasoning conflicts squarely with the reasoning of this opinion and with the legal conclusions we have reached. Here, we determine that a statute that prohibits doctors from aiding terminally ill persons to hasten their deaths by providing them with prescription medications unconstitutionally burdens the liberty interests of the terminally ill.
The benefit we conclude the terminally ill are entitled to receive in this case - the right to physician-assisted suicide - is precisely what Judge Hogen determined to be a burden and thus unlawful. In short, Lee treats a burden as a benefit and a benefit as a burden.
In doing so, Judge Hogan clearly erred. Lee not only does not aid us in reaching our decision, it is directly contrary to our holding. Beezer CJ justified his refusal to categorise this liberty interest as fundamental by referring to the Supreme Court's unwillingness to identify new fundamental rights protected under the Due Process Clause. He therefore applied the restrictive test that the Supreme Court had used in Bowers v. Hardwick US.
Under that test, a new fundamental right will only exist if is deeply rooted in the nation's traditions and history, and if it can be considered so implicit in the concept of ordered liberty that neither liberty nor justice would exist if it were sacrificed. Beezer CJ concluded that the purported right to assisted suicide failed both limbs of this test.
Note that the majority judges were highly critical of the Supreme Court's approach in Bowers v. Hardwick , describing it as 'aberrant. Every instance of euthanasia and assisted suicide must be reported to 1 of the 5 regional euthanasia review committees. The committee will judge if the physician has taken due care.
If a physician fails to do so, he may be prosecuted. Penalties vary but may be as much as 12 years in prison for euthanasia and up to 3 years for assisting suicide. Minors may themselves request euthanasia from the age of 12, although the consent of the parents or guardian is mandatory until they reach the age of Sixteen and seventeen-year-olds do not need parental consent in principle, but their parents must be involved in the decision-making process.
From the age of 18, young people have the right to request euthanasia without parental involvement. For some people, the prospect of ever suffering from dementia may be sufficient reason to make an advance directive living will. This can either be drawn up independently or discussed first with the family doctor. A physician can perform euthanasia on a patient with dementia only if such a directive exists, if statutory care is taken and if, in his opinion, the patient is experiencing unbearable suffering with no prospect of improvement.
Doctors have a duty to report all unnatural deaths to the municipal pathologist. In cases of euthanasia, the latter then notifies a regional review committee.
Such committees comprise, at the minimum, a medical doctor, an ethicist and a legal expert.
0コメント