case study on euthanasia in australia

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What are the laws on voluntary assisted dying in each state?

Australia does not have a national approach to VAD. So how do the laws differ across the country?

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Voluntary assisted dying has been legalised in all states across Australia, with legislation in New South Wales coming into effect from the end of November this year. It is not yet legal in the Northern Territory or the Australian Capital Territory. But last December, commonwealth laws that stopped the territories from making new laws on voluntary assisted dying were repealed, which opens a pathway to potential future legalisation.

How do the laws differ across Australia?

Who is eligible for voluntary assisted dying?

In states where VAD is legalised, individuals must be Australian citizens or permanent residents aged 18 or over. They must be acting voluntarily, have decision-making capacity and have a terminal medical illness likely to cause death within six months, or 12 months in the case of neurodegenerative conditions. Queensland’s rules differ: the person applying needs to have a condition likely to cause death within a year. The medical condition must also cause suffering that cannot be relieved tolerably.

Generally, patients must make at least three requests for access to VAD, and be assessed at least twice by medical professionals.

There are two methods of accessing euthanasia: self-administration, where a person takes the VAD medication themselves, and practitioner administration. Both methods are available across Australia but certain states have specific requirements. For example, in Victoria and South Australia, practitioner administration is only available if the patient cannot physically self-administer or digest the medication.

What legal obligations do health professionals have?

In Victoria and South Australia, health practitioners cannot initiate VAD conversations. In Western Australia, Tasmania, Queensland and NSW, medical practitioners can bring up VAD, but must also discuss treatment and palliative care options at the same time.

Ben White, a professor of end-of-life law at Queensland University of Technology, says the laws in Victoria and SA are a problem. “Family members and patients have described not being able to find the right words, not being able to generate the right conversation,” he says. “There’s an issue of health literacy in a voluntary assisted dying setting. How can you access VAD if you don’t know it exists and doctors don’t tell you about it?”

Health practitioners can conscientiously object to providing euthanasia. “In three states – Queensland, WA and Tasmania – there’s a requirement of either provision of information or contact details, or referral,” White says. In other states, such as Victoria, a person with conscientious objection to euthanasia can refuse to provide patients with any information about it.

Three states – Queensland, South Australia and NSW – include institutional objection provisions in their legislation. In those states, people are generally able to access voluntary assisted dying if they are permanent residents of an aged care or palliative care facility, even if the facility objects.

“It would be optimal to have national laws, but I think that has proved extremely challenging … including the related field of advanced care planning and advanced care directives,” White says.

Voluntary assisted dying status, state-by-state

Legalised in 2017 , laws came into effect on 19 June 2019.

Person must have an incurable illness.

Health professionals cannot bring up VAD as an option; the patient must initiate a VAD conversation.

Patients must take the medication themselves unless they cannot self-administer or digest it, in which case a practitioner can administer it.

Legalised in May 2022 , the legislation will come into effect on 28 November 2023.

Patients can choose whether they want to take the medication themselves orally or for it to be injected by a doctor.

Includes institutional objection provisions in the legislation: individuals living permanently in aged care, palliative care or other facilities are usually able to access VAD services even if the facility objects, because it is considered the person’s home.

Legalised in 2021 , laws came into effect on 1 January 2023.

Unlike other states, which require a medical condition likely to cause death within six months, the person applying needs to have a condition likely to cause death within a year.

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Conscientious objectors must provide contact details of a service that provides VAD.

South Australia

Legalised in 2021, laws came into effect on 31 January 2023.

Western Australia

Legalised in 2019, laws came into effect on 1 July 2021.

Legalised in 2021, laws came into effect on 23 October 2022.

Person must have an incurable and irreversible illness.

Not legal. A person who assists another individual to die may be charged with murder, manslaughter or assisting suicide. In December 2022, commonwealth laws that stopped Australian territories from making new laws on voluntary assisted dying were repealed.

Northern Territory

Not legal. A person who assists another individual to die may be charged with murder, manslaughter or assisting suicide. Euthanasia was previously legal in the NT in 1996-97, until the territory law was nullified by the federal government. In December 2022, commonwealth laws that stopped Australian territories from making new laws on voluntary assisted dying were repealed.

Most viewed

Seven deaths in Darwin: case studies under the Rights of the Terminally Ill Act, Northern Territory, Australia

Affiliation.

• 1 University of Melbourne Centre for Palliative Care, Kew, Victoria, Australia. [email protected]
• PMID: 9798585
• DOI: 10.1016/s0140-6736(98)05406-3

Background: During the 9 months between July, 1996, and March, 1997, the provision of euthanasia for the terminally ill was legal in the Northern Territory of Australia. Seven patients made formal use of the Rights of the Terminally Ill (ROTI) Act; four died under the Act. We report their clinical details and the decision-making process required by the Act.

Methods: We taped in-depth interviews with the general practitioner who provided euthanasia. Further information was available from public texts created by patients, the media, and the coroner.

Findings: All seven patients had cancer, most at advanced stages. Three were socially isolated. Symptoms of depression were common. Having met criteria of the Act, some patients deferred their decision for a time before proceeding with euthanasia. Medical opinions about the terminal nature of illness differed.

Interpretation: Provision of opinions about the terminal nature of illness and the mental health of the patient, as required by the ROTI Act, created problematic gatekeeping roles for the doctors involved.

Publication types

• Case Reports
• Attitude to Death
• Decision Making*
• Euthanasia, Active, Voluntary*
• Middle Aged
• Neoplasms / physiopathology
• Neoplasms / psychology*
• Northern Territory
• Physician's Role*
• Qualitative Research
• Right to Die / legislation & jurisprudence*
• Social Isolation
• Stress, Psychological
• Suicide, Assisted / legislation & jurisprudence
• Suicide, Assisted / statistics & numerical data*
• Uncertainty*

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Euthanasia, human rights and the law.

ISSUES PAPER

Table of contents, 1 introduction, 2 passive voluntary euthanasia, 3 active voluntary euthanasia, 4 legislative attempts to regulate active voluntary euthanasia, 5 international human rights issues and considerations, (a) passive voluntary euthanasia, (b) active voluntary euthanasia.

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.

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

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 Act UK (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]

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.

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:

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;

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;

• 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

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]

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.

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 Act 1997 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]

Key provisions set out the ability to make a request and the pre-conditions to be met in accessing dying with dignity medical services. [142] This included the ability to rescind a request as well as the provision of safeguards (information provision, three doctor sign off, Certificate of Request). [143] There were record-keeping obligations and offence provisions (including failure to keep records and undue influence) as well as exclusion of liability provisions. [144]

(a) Senate Inquiry/Constitutional issues

On 24 June 2014 the Senate referred the Draft Bill to the Legal and Constitutional Affairs and Legislation Committee for inquiry and report by 27 October 2014. [145] The Senate Committee made two recommendations: the first that technical and other issues raised in evidence to the Committee be addressed and further advice sought of relevant experts before the Bill is taken further. [146] Secondly that if a Bill dealing with this broad policy issue is introduced in the Senate, that Party Leaders allow Senators a conscience vote. [147]

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. [148] This issue will be considered in some detail. Four constitutional heads of power have been referred to in the Draft Bill and will be considered in turn.

(i) The medical services power [149]

Contrasting views were submitted to the Senate Inquiry on whether euthanasia would be covered under this head of power. Views against the proposition included ‘if you have reached, by definition, an end of what medical treatment can do, then that which you are doing is not medical treatment’. [150] Arguments for the proposition included ‘some words or concepts expressed in the Constitution...are given ambulatory meaning so as to necessarily encompass later developments in a particular field’. [151] The Public Law and Policy Research Unit at the University of Adelaide concluded that a ‘dying with dignity medical service’ is a medical service within the meaning of subsection 51(xxiiiA) of the Constitution. [152] The basis for this is that the meaning of ‘medical services’ ‘must be informed by the dynamic nature of the medical practice’ and that, ‘from a purely constitutional standpoint, there is no obvious inference to be drawn that the meaning of “medical service” is solely limited to the “preservation of life”.’ [153]

(ii) The corporations power [154]

The corporations power has been interpreted broadly by the High Court to extend to any law that ‘imposes a duty or liability, or confers a right or privilege, only on a constitutional corporation’. [155] This includes regulating the conduct of ‘those through whom it acts’ including employees. [156] The High Court has emphasised that to fall within the corporations power, the law needs to regulate or permit acts done by or on behalf of corporations. [157]

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. [158] Even where that was the case, doubts exist as to whether this amounts to a ‘sufficient’ enough connection to bring it within the coverage of the corporations power. [159] The Public Law and Policy Research Unit at the University of Adelaide suggested that validity under this head of power would be strengthened if the Bill was ‘confined to a medical practitioner employed by a constitutional corporation acting in the course of their employment by that corporation’. [160] If that is accepted then arguably the intended coverage of the Bill would be far more limited than that potentially offered under the ‘medical services’ head of power.

(iii) The territories power [161]

It was generally accepted by submitters to the Senate Inquiry that insofar as conduct occurring in a territory was concerned, the head of power was unlimited and unqualified’ in subject matter covered and could easily be relied on. [162] The obvious limitation with this head of power is that it only applies to the territories and precludes national coverage.

(iv) Implied powers

The Bill also refers to and relies on the ‘implied legislative powers of the Commonwealth’. [163] In the absence of an Explanatory Memorandum or similar document no submissions considered whether there was an applicable implied power upon which the Bill could rely. [164]

(b) Consequences of constitutional invalidity

It should be noted that the Draft Bill would provide medical practitioners with immunity from ‘civil, criminal and disciplinary action’. This requires the Bill ‘to create an inconsistency with the relevant State legislation under s 109 of the Constitution, thus rendering the State laws inoperative’. 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. If such legislation was enacted it would most likely be subject to constitutional challenge in the High Court where the question of whether a ‘medical service’ includes a service that ‘terminates’ life would be determined.

While currently a comprehensive statutory scheme regulating active voluntary euthanasia practices does not exist in Australia, this is not the case elsewhere. Active voluntary practices have been legislated for, to varying extents, in other comparable countries which are considered below.

4.3 International legislative schemes

A number of countries have legalised certain forms of active voluntary euthanasia and/or assisted suicide (the latter, for the purposes of this paper, is considered a form of active voluntary euthanasia). Some of these schemes and/or provisions have been summarised below.

(a) The Netherlands

With the passing of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) (Neth), [165] the Netherlands became the first country in the world to legalise euthanasia. [166] News reports state that strict conditions must be satisfied including that patients have an incurable condition and face unbearable suffering. [167] Key criteria include the patient has to be in full possession of mental faculties; a second medical opinion must be sought; and after the event it is referred to a regional review committee (which includes a doctor, a legal expert and a medical ethicist). [168] The Act allows for both doctor administered and self-administered assisted (assisted suicide) dying. [169] Additionally, a patient can request doctor-administered assisted dying through an advance directive. [170]

(b) Belgium

Belgium became the second EU country to legalise euthanasia with the enactment of the Belgium Act on Euthanasia (28 May 2002). [171] News reports describe the Act as allowing adults who are in a ‘futile medical condition of constant and unbearable physical or mental suffering that cannot be alleviated’ to request voluntary euthanasia. [172] Doctors who practise euthanasia commit no offence if prescribed conditions and procedures have been followed (the patient has legal capacity; the request is made voluntarily and repeatedly with no external pressure and the patient’s medical state is hopeless with constant, unbearable pain or mental suffering which cannot be relieved). [173] The Act does not cover assisted suicide [174] (only doctor-administered assisted dying) although the Belgian federal oversight body, Commission Federale de Controle et Evaluation acknowledges that some cases of self-administered assisted dying are covered by the law. [175] Similar to the Netherlands, a patient can request doctor-administered assisted dying through an advance directive. [176] In May 2014, Belgium became the first country in the world to allow children access to euthanasia. [177]

(c) Luxembourg

Luxembourg became the third European country to legalise euthanasia [178] with the passing of The Law of 16 March 2009 on Euthanasia and Assisted Suicide (Lux). [179] News reports state that the law permits euthanasia and assisted suicide in relation to those with incurable conditions (requirements include repeated requests and the consent of two doctors and an expert panel). [180] Doctors who provide euthanasia and assisted suicides do not face ‘penal sanctions’ or civil suits for damages and interest. [181]

(d) Switzerland

Article 115 of the Swiss Criminal Code (1994) states that inciting or assisting suicide is a punishable offence, however it is only a crime if it is undertaken out of self-interested motivations. [182] This has the effect of ‘legalising’ assisted suicide in Switzerland without having a specific euthanasia law in place. [183] In Switzerland, assistance is provided almost exclusively by a range of not-for-profit right to die organisations [184] (which can involve non-physicians). [185] However it is the patient who must self-administer the ‘lethal dose’. [186] All forms of active euthanasia (i.e. doctor-administered assisted dying) remain prohibited in Switzerland. [187]

(e) The United States of America (states of Oregon, Washington, Vermont, Montana) [188]

Active euthanasia remains illegal in most of the United States. [189] The United States does not provide for federal provisions or a federal regime for active voluntary euthanasia practices.

Assisted suicide is legal in the states of Oregon, Washington, Vermont and Montana, [190] with legislation passed in both Oregon and Washington. [191] In both Oregon and Washington only self-assisted dying is permitted. [192] Doctor-administered assisted dying and any form of assistance to help a person commit suicide outside the provisions of these Acts remains a criminal offence. [193]

On 6 February 2015 the Supreme Court of Canada found that the prohibition on physician-assisted death in place in Canada (in ss 14 and 241(b) of the Canadian Criminal Code ) unjustifiably infringed the right to life, liberty and security of the person in article 7 of the Charter of Rights and Freedoms in the Canadian Constitution. [194] The Supreme Court declared the infringing sections of the Criminal Code void:

insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable’, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual. [195]

The Supreme Court suspended the declaration of invalidity of the provisions in the Criminal Code for 12 months, to give the Canadian legislatures time to revise their laws. On 15 January 2016 the Supreme Court granted the Canadian governments a further 4 months to make any law reform. [196] This means that the Supreme Court’s decision will take effect, and the prohibition on physician-assisted suicide in Canada will therefore end, on 6 June 2016.

The Supreme Court made clear that:

nothing in the declaration of invalidity...would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. [197]

Since the Supreme Court’s decision, the Canadian governments have been exploring options for legalising and regulating physician-assisted dying. A Special Joint Committee on Physician-Assisted Dying was appointed by the Canadian Parliament to ‘make recommendations on the framework of a federal response on physician-assisted dying respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians’. [198] The Special Joint Committee released its report in February 2016, recommending a legislative framework which would regulate ‘medical assistance in dying’ by imposing both substantive and procedural safeguards, namely:

Substantive Safeguards:

• A grievous and irremediable medical condition (including an illness, disease or disability) is required;
• Enduring suffering that is intolerable to the individual in the circumstances of his or her condition is required;
• Informed consent is required;
• Capacity to make the decision is required at the time of either the advance or contemporaneous request; and
• Eligible individuals must be insured persons eligible for publicly funded health care services in Canada.

  Procedural Safeguards:

• Two independent doctors must conclude that a person is eligible;
• A request must be in writing and witnessed by two independent witnesses;
• A waiting period is required based, in part, on the rapidity of progression and nature of the patient’s medical condition as determined by the patient’s attending physician;
• Annual reports analyzing medical assistance in dying cases are to be tabled in Parliament; and
• Support and services, including culturally and spiritually appropriate end-of-life care services for Indigenous patients, should be improved to ensure that requests are based on free choice, particularly for vulnerable people. [199]

It should be noted that physician-assisted has already been legalised in the province of Québec. Québec passed An Act respecting end-of-life care (the Québec Act) in June 2014, with most of the Act coming into force on 10 December 2015. The Québec Act provides a ‘framework for end-of-life care’ which includes ‘continuous palliative sedation’ and ‘medical aid in dying’, defined as ‘administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.’ [200] In order to be able to access medical aid in dying under the Québec Act a patient must:

(1) be an insured person within the meaning of the Health Insurance Act (chapter A-29); (2) be of full age and capable of giving consent to care; (3) be at the end of life; (4) suffer from a serious and incurable illness; (5) be in an advanced state of irreversible decline in capability; and (6) experience constant and unbearable physical or psychological suffering (7) which cannot be relieved in a manner the patient deems tolerable. [201]

The request for medical aid in dying must be signed off by two physicians. [202] The Québec Act also established a Commission on end-of-life care to provide oversight and advice to the Minister of Health and Social Services on the implementation of the legislation regarding end-of-life care. [203]

4.4 Summary

Unlike passive voluntary euthanasia, active voluntary euthanasia does not, in a regulatory sense, enjoy the same widespread acceptance. This is despite the apparent widespread public support for these practices as revealed in general polls on the issue. Arguments for and against these practices range from the role of the doctor, support of palliative care and the ‘slippery slope’ to arguments about legitimacy and transparency in our laws and the importance of autonomy in the right to choose.

Currently legislative provisions on the administering of painkillers that hasten death are inconsistently regulated across states and territories. In contrast the performance of a ‘lethal act’ (or assistance of) is consistently regulated in criminal law but reveal a criminal justice system seeking out mechanisms for mitigation of outcomes. From this situation have emerged various legislative attempts that seek to directly regulate active voluntary euthanasia practices. While such laws are not yet in existence in Australia, elsewhere such legislative schemes have been enacted and are in operation today.

Another relevant source of guidance is to be found in a human rights-based analysis, which is contained in the following section.

Australia is a party to seven key human rights treaties. The most relevant obligations when discussing voluntary euthanasia are contained in the International Covenant on Civil and Political Rights (ICCPR). [204] The following rights in the ICCPR may be engaged by the practice of voluntary euthanasia:

• right to life (article 6)
• freedom from cruel, inhuman or degrading treatment (article 7)
• right to respect for private life (article 17)
• freedom of thought, conscience and religion (article 18).

The Convention on the Rights of Persons with Disabilities contains specific obligations in relation to people with disability that are also relevant to a discussion of voluntary euthanasia, and therefore will also be considered below. [205]

5.1 Right to life

Article 6(1) of the ICCPR provides:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The right to life has been characterised as the ‘supreme human right’, as ‘without effective guarantee of this right, all other rights of the human being would be devoid of meaning’. [206] It is the only right in the ICCPR that is expressly described as ‘inherent’. [207]

The second sentence of article 6(1) imposes a positive obligation on States to provide legal protection of the right to life. However, the subsequent reference to life not being ‘arbitrarily deprived’ operates to limit the scope of the right (and therefore States’ duty to ensure the right). [208]

Comments from the UN Human Rights Committee suggest that laws allowing for voluntary euthanasia are not necessarily incompatible with States’ obligation to protect the right to life. [209] As one leading commentator on the ICCPR has concluded:

If a national legislature limits criminal responsibility here after carefully weighing all the affected rights and takes adequate precautions against potential abuse, this is within the scope of the legislature’s discretion in carrying out its duty to ensure the right...the State’s obligation to ensure does not go so far as to require that life and health be protected against the express wishes of those affected. [210]

The UN Human Rights Committee has emphasised that laws allowing for euthanasia must provide effective procedural safeguards against abuse if they are to be compatible with the State’s obligation to protect the right to life. In 2002 the UN Committee considered the euthanasia law introduced in The Netherlands. The Committee stated that:

where a State party seeks to relax legal protection with respect to an act deliberately intended to put an end to human life, the Committee believes that the Covenant obliges it to apply the most rigorous scrutiny to determine whether the State party’s obligations to ensure the right to life are being complied with (articles 2 and 6 of the Covenant). [211]

The UN Human Rights Committee expressed concern about whether the wording of the conditions under the Dutch law for legally terminating a life provided adequate safeguards. [212] The Committee commented that the large numbers of cases referred to the Dutch review committee in 2000 (and the very low proportion of negative assessments by that committee) ‘raise doubts whether the present system is only being used in extreme cases in which all the substantive conditions are scrupulously maintained.’ [213]

The UN Committee recommended to the Netherlands that it:

re-examine its law on euthanasia and assisted suicide in the light of these observations. It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. [214]

When the Netherlands came up for review again by the Human Rights Committee in 2009, the Committee again expressed concern about its euthanasia law, noting:

Under the law on the Termination of Life on Request and Assisted Suicide, although a second physician must give an opinion, a physician can terminate a patient’s life without any independent review by a judge or magistrate to guarantee that this decision was not the subject of undue influence or misapprehension (art. 6). [215]

The Committee ‘reiterate[d] its previous recommendations in this regard and urge[d] that this legislation be reviewed in light of the Covenant’s recognition of the right to life’. [216]

The European Court of Human Rights (ECtHR) has adopted a similar position to the UN Human Rights Committee when considering euthanasia laws and the right to life in article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention). [217] According to the ECtHR, the right to life in article 2 cannot be interpreted as conferring a right to die, or a right to self-determination in terms of choosing death rather than life. [218]

However, the ECtHR has held that a State’s obligation to protect life under that article does not preclude it from legalising voluntary euthanasia, provided adequate safeguards are put in place and adhered to. In Hass v Switzerland the ECtHR explained that the article 2:

creates for the authorities a duty to protect vulnerable persons, even against actions by which they endanger their own lives... this latter Article obliges the national authorities to prevent an individual from taking his or her own life if the decision has not been taken freely and with full understanding of what is involved . [219]

Accordingly, the ECtHR concluded that:

the right to life guaranteed by Article 2 of the Convention obliges States to establish a procedure capable of ensuring that a decision to end one’s life does indeed correspond to the free will of the individual concerned. [220]

In its most recent decision regarding end of life issues, Lambert and Others v France , [221] the ECtHR considered whether the decision to withdraw artificial nutrition and hydration of Vincent Lambert violated the right to life in article 2.

Vincent Lambert was involved in a serious road-traffic accident, which left him tetraplegic, and with permanent brain damage. He was assessed in expert medical reports as being in a chronic vegetative state, and required artificial nutrition and hydration administered via a gastric tube.

Mr Lambert’s medical team initiated the collective procedure provided for under the relevant French law in relation to patient’s rights and end-of-life issues. This process ultimately resulted in the Judicial Assembly of the Conseil d’Etat authorizing the withdrawal of the artificial nutrition and hydration of Mr Lambert.

Mr Lambert’s parents applied to the ECtHR alleging that the decision to withdraw his artificial nutrition and hydration breached, inter alia, the State’s obligations under article 2 of the European Convention.

The ECtHR highlighted that article 2 imposes on States both a negative obligation (to refrain from the ‘intentional’ taking of life) and a positive obligation (to ‘take appropriate steps to safeguard the lives of those within its jurisdiction’). [222] The Court held that the decision of a doctor to discontinue life-sustaining treatment (or ‘therapeutic abstention’) did not involve the State’s negative obligation under article 2, and therefore the only question for the Court under article 2 was whether it was consistent with the State’s positive obligation. [223]

The ECtHR emphasized that ‘the Convention has to be read as a whole’, and therefore:

in a case such as the present one reference should be made, in examining a possible violation of Article 2, to Article 8 of the Convention and to the right to respect for private life and the notion of personal autonomy which it encompasses. [224]

The Court noted that there was a consensus among European member States ‘as to the paramount importance of the patient’s wishes in the decision-making process, however those wishes are expressed’. [225] It identified that in dealing with end of life situations, States have some discretion in terms of striking a balance ‘between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy’. [226]

The Court considered that the provisions of the Act of 22 April 2005, as interpreted by the Conseil d’Etat , constituted a legal framework which was sufficiently clear to regulate with precision the decisions taken by doctors in situations such as in Mr Lambert’s case. The Court found the legislative framework laid down by domestic law, as interpreted by the Conseil d’État , and the decision-making process, which had been conducted in meticulous fashion, to be compatible with the requirements of the State’s positive obligation under article 2.

5.2 Right to freedom from cruel, inhuman or degrading treatment

The purpose behind the prohibition on torture or cruel, inhuman or degrading treatment or punishment in article 7 of the ICCPR is ‘to protect both the dignity and the physical and mental integrity of the individual.’ [227] This article imposes a duty on State Parties:

to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. [228]

Article 7 therefore imposes a positive obligation on States to protect persons in its jurisdiction from ill-treatment reaching the requisite threshold. There are two ways in which it may be argued that a State denying a person the option of voluntary euthanasia may have the result of forcing them to endure cruel, inhuman or degrading treatment.

The first is that a prohibition on voluntary euthanasia may force people to live with extreme and chronic pain, against their express wishes. It is debatable however whether the State’s positive obligation under article 7 of the ICCPR requires it to allow active voluntary euthanasia where the only options for a person are to endure what they consider to be unbearable suffering, or to choose to end their life.

In the ECtHR case of Pretty v the United Kingdom , the applicant suffered from Motor Neurone Disease. She was paralysed from the neck down, had ‘virtually no decipherable speech’ and was being fed through a tube. Her life expectancy was a matter of only months or even weeks. However, she had full mental capacity. The ECtHR noted that:

The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.’ [229]

Because of her disease, the applicant was unable to end her own life. She sought an undertaking from the Director of Public Prosecutions not to prosecute her husband if he assisted her to commit suicide, as the latter was a criminal offence under English law. The Director refused. The applicant alleged, among other things, a violation of article 3 of the European Convention.

The ECtHR recognised that article 3 (combined with article 1) of the European Convention imposes a positive obligation, in that it ‘requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals’. [230] However, the ECtHR concluded that this positive obligation did not extend to require that the State ‘sanction actions intended to terminate life’ by legalising (or at least decriminalising) assisting suicide. [231]

A State prohibition on passive voluntary euthanasia (i.e. consensual withdrawal of life-sustaining treatment) may potentially raise issues under article 7 of the ICCPR if it requires doctors to administer treatment against the wishes of the patient. The physical integrity of a person (which article 7 is designed to protect) may be compromised if they are subjected to medical treatment without their consent.

However, article 7 does not protect against all interferences with physical integrity, and therefore ‘medical treatment, even if given without consent, will have to reach a certain level of severity before violating article 7’. [232]

Interferences with personal (including physical) integrity which are not so severe as to fall within article 7 may however violate the right to privacy in article 17, as will be discussed immediately below. [233]

5.3 Right to privacy

Article 17 of the ICCPR provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

A leading commentator on the ICCPR has explained that ‘the right to privacy protects that particular area of individual existence and autonomy that does not touch upon the sphere of liberty and privacy of others’. [234]

In terms of protecting individual existence, this includes a person’s physical (and mental) integrity. [235] Accordingly ‘medical treatment without consent or against the will of the patient is to be deemed interference with privacy, as this term also covers the inviolability of one’s own body’. [236] Such interference with personal integrity is therefore permissible only when it is both lawful and non-arbitrary, i.e. ‘when it serves a legitimate purpose and observes the principle of proportionality’. [237]

Article 17 also encompasses protection of ‘that area of individual autonomy in which human beings strive to achieve self-realisation by way of actions that do not interfere with the liberty of others’. [238] The right to privacy ‘gives rise to a right to one’s own body’, and therefore protection of individual autonomy includes actions which may be injurious to a person’s own health. [239] Refusals to allow passive euthanasia or assisted suicide despite the express wishes of the patient therefore represent interferences with the right to privacy. [240]

Under article 17 any interference with privacy, even if lawful ‘should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.’ [241]

The question is whether legislation which prohibits voluntary euthanasia meets these requirements for a justifiable interference with the right to privacy.

The ECtHR has considered the relevance of the right to privacy in article 8 of the European Convention in the context of requests for access to voluntary euthanasia. While the wording of that article is not identical to article 17 of the ICCPR, the substance and scope of the right protected by both articles is sufficiently similar that comments made by the ECtHR about article 8 can offer useful guidance on the possible application of article 17 of the ICCPR. [242]

In Pretty v the United Kingdom , the ECtHR stated that ‘[t]he very essence of the Convention is respect for human dignity and human freedom’. [243] The Court held that ‘it is under Article 8 that notions of the quality of life take on significance’. [244]

The ECtHR recognised that the concept of ‘private life’ in article 8 of the European Convention ‘covers the physical and psychological integrity of a person’. [245] It also held that ‘the notion of personal autonomy is an important principle underlying the interpretation of [Article 8’s] guarantees’. [246]

In relation to personal autonomy, the Court noted that:

the ability to conduct one's life in a manner of one's own choosing may...include the opportunity to pursue activities perceived to be of a physically or morally harmful or dangerous nature for the individual concerned...even where the conduct poses a danger to health or, arguably, where it is of a life-threatening nature, the case-law of the Convention institutions has regarded the State's imposition of compulsory or criminal measures as impinging on the private life of the applicant within the meaning of Article 8 § 1 and requiring justification in terms of the second paragraph’. [247]

In relation to a person’s choice to refuse medical treatment, the ECtHR stated that:

the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person's physical integrity in a manner capable of engaging the rights protected under Article 8 § 1 of the Convention...a person may claim to exercise a choice to die by declining to consent to treatment which might have the effect of prolonging his life’. [248]

The ECtHR held in Pretty that the fact that the applicant was ‘prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life’ constituted an interference with her right to respect for private life in article 8. [249] However, the Court concluded in that case that the blanket ban on assisted suicide was justified as ‘necessary in a democratic society’ for the protection of the rights of others, and therefore was a permissible limitation of the right. [250]

In subsequent cases the ECtHR has confirmed that the right to respect for private life includes:

• ‘an individual’s right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence’, [251] and
• ‘the right of each individual to decline to consent to treatment which might have the effect of prolonging his or her life’. [252]

5.4 Rights of people with disability

As is evident from the facts in the cases of Lambert and Pretty (discussed above), an analysis of the issues raised by voluntary euthanasia includes consideration of the rights of people with disability. Australia is a party to the Convention on the Rights of Persons with Disabilities (the Disability Convention), and therefore is under an obligation to ensure that people with disability enjoy all their human rights without discrimination of any kind on the basis of disability. [253]

The Disability Convention does not provide a comprehensive definition of disability, but provides that ‘persons with disabilities’ include those who have long-term mental impairments and intellectual impairments.  When a person’s impairment interacts with various barriers that restrict a person’s effective participation in society on an equal basis to others, they are considered to have disability. [254]

Key principles which underpin the Disability Convention include non-discrimination and ‘[r]espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’. [255]

The Disability Convention makes clear that all people with disability have an inherent right to life, and places an obligation on States to take all necessary measures to ensure that people with disability enjoy this right on an equal basis with others. [256] The Convention requires States parties to provide people with disability equal protection under the law as those without disability. [257]

These obligations would, for example, prohibit States from passing laws which allow for involuntary euthanasia of people with disability because of their disability. Article 25 of the Disability Convention specifically prohibits the ‘discriminatory denial of health care or health services or food and fluids on the basis of disability’. [258]

However, in the case of voluntary euthanasia, the same balancing of the right to life with the right to personal autonomy that occurs for people without disability applies under the Disability Convention for those with disability. The Convention makes clear that people with disability, like those without disability, have a right to respect for their physical and mental integrity, and privacy. [259] People with disability are entitled to make choices as to their own welfare, and to be supported to do so where necessary. They enjoy legal capacity on an equal basis with those without disability, and are entitled to support in exercising that capacity. [260] Any safeguards which are put in place in relation to people with disability exercising their legal capacity, to protect against undue influence and/or abuse, must respect the rights, will and preferences of the person. [261]

Respect for the right of people with disability to make decisions includes deciding whether to agree to medical treatment. Article 25 of the Disability Convention places an obligation on States Parties to require health professionals to ‘provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’. [262] The UN Committee on the Rights of Persons with Disabilities has made clear that:

The right to enjoyment of the highest attainable standard of health (art. 25) includes the right to health care on the basis of free and informed consent. States parties have an obligation to require all health and medical professionals (including psychiatric professionals) to obtain the free and informed consent of persons with disabilities prior to any treatment. [263]

The UN Committee on the Rights of Persons with Disabilities has further stated that treating people with disability without their consent may violate a number of rights in the Disability Convention, as:

forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention. States parties must, instead, respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations; must ensure that accurate and accessible information is provided about service options...and must provide access to independent support...The Committee recommends that States parties ensure that decisions relating to a person’s physical or mental integrity can only be taken with the free and informed consent of the person concerned. [264]

5.5 Freedom of thought, conscience and religion

Article 18 of the ICCPR requires protection of freedom of thought, conscience and religion, and provides that:

• Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
• No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
• Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others...

Article 18 of the ICCPR distinguishes between the freedom to hold or adopt a particular belief, and the freedom to manifest that belief in conduct. It is clear from the different focuses of paragraphs (2) and (3) of article 18 that the freedom to hold a belief is broader than the freedom to act upon it.

The right to hold a belief is absolute - the State is not permitted to interfere with a person’s right to autonomously develop thoughts and a conscience. [265] However, once a belief is manifested (that is, implemented) in action, it leaves the sphere of absolute protection and may be the subject of legitimate limitations, because the manifestation of a religious belief may have an impact on others. The right to freedom of belief therefore ‘does not always guarantee the right to behave in public in a manner governed by that belief’. [266]

Discussions about the legalisation of voluntary euthanasia will often touch on matters of personal belief, whether it is belief in the ‘sanctity of life’ or belief in ‘personal autonomy’ and an individual’s right to choose a ‘good death’. The extent to which article 18 would require the State to permit actions based on these beliefs will depend on all the circumstances.

A law legalising voluntary euthanasia may need to make allowances for those whose beliefs in the sanctity of life would preclude them from being able to participate in end-of-life processes, in order to be compatible with article 18. This could take the form, for example, of a ‘conscientious objection’ provision for doctors whose beliefs are incompatible with involvement in euthanasia.

In the case of the belief in personal autonomy and a person’s right to choose a ‘good death’, the extent to which this might found an argument that the State is required to decriminalise voluntary euthanasia was considered by the ECtHR in Pretty v the United Kingdom . In that case the Court considered the right to freedom of thought, conscience and religion in article 9 of the European Convention. The ECtHR held that:

The Court does not doubt the firmness of the applicant's views concerning assisted suicide but would observe that not all opinions or convictions constitute beliefs in the sense protected by Article 9 § 1 of the Convention. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. As found by the Commission, the term “practice” as employed in Article 9 § 1 does not cover each act which is motivated or influenced by a religion or belief...To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention. [267]

The ECtHR accordingly concluded that the fact that assisted suicide was criminal in the applicant’s case did not result in a violation of her right to freedom of thought, conscience and religion under article 9. [268]

An analysis of international human rights law relevant to the practice of voluntary euthanasia does not lead to ‘the’ answer. Rather it reveals a balancing of rights, the appropriate balance of which may be subject to competing views.

The right to life does not (as a corollary) include a right to choose to die. But nor does it require a State to ensure that a person’s life is protected when this is against the express wishes of that person. In the case of a request for voluntary euthanasia, the State’s obligation to protect life must be balanced against the right to personal autonomy which is contained within the right to privacy.

Laws prohibiting access to voluntary euthanasia may interfere with the right to respect for private life as guaranteed under article 17 of the ICCPR, and as such need to be able to be justified as a legitimate limitation of that right.

In relation to access to passive euthanasia, it is important to note that to subject a person to medical treatment against their will or without their consent may violate their physical integrity and breach their rights under article 17 (and possibly article 7) of the ICCPR.

Further, the Disability Convention makes clear that people with disability are entitled to the same respect for their rights to life, health, physical integrity and personal autonomy as people without disability.

If a State does choose to legalise voluntary euthanasia, article 6 of the ICCPR requires that the legislation includes strict and effective safeguards against abuse. In order to be compatible with the right to freedom of thought, conscience and belief, such laws may need to include an appropriately worded ‘conscientious objection’ provision.

The analysis suggests that there is no one identifiable right that necessarily requires the legalisation of voluntary euthanasia, nor is there one identifiable right that prevents its legalisation, provided stringent safeguards are instituted. It would seem from a human rights perspective, the option exists to support legalisation of voluntary euthanasia practices provided that sufficient safeguards are put in place to prevent ‘arbitrary’ (including discriminatory) deprivations of life.

7 Commentary

Individual support for the issue of euthanasia is, at its core, a matter of personal belief. Values based on ‘sanctity of life’ and ‘personal autonomy’ are usually grounded in deeply held moral and/or religious beliefs. Further, supporting euthanasia may not be an absolute position. People may support some forms of euthanasia, such as passive voluntary euthanasia, while rejecting other, more active, forms of euthanasia.

The functions of the Australian Human Rights Commission include examining legislation and proposed legislation for compliance with human rights standards, [269] and promoting understanding, acceptance and public discussion of human rights in Australia. [270]

Any definitive position taken by the Commission on voluntary euthanasia will depend on the way in which it is framed in legislation. In the absence of a specific proposal to legislate for any form of euthanasia, the commentary below should be taken as indicative of a general position based on consideration of the relevant human rights laws and principles presented in this paper.

The most striking aspect of passive voluntary euthanasia, defined as the withdrawal or withholding of treatment by omission, is that it is already occurring, although is not referred to as such. Whether it is called palliative care or ‘good medical practice’ it forms part of our current medical landscape when considering ‘end of life choices’ and is subject to regulation. As these practices already exist, are generally accepted within the Australian community and are broadly consistent with human rights standards, there seems little to be gained in arguing for or against these practices. Instead the form of regulation in place can usefully be subject to scrutiny.

Currently the regulation of passive voluntary euthanasia practices rests with the states and territories, where, in the absence of legislation or other regulation, the common law applies. Mostly state-level regulation focuses on setting up systems that allow people to formalise or ‘expressly state’ their wishes through instruments such as advanced care directives and enduring powers of attorney or guardianship. These systems also include an array of safeguards to ensure that decisions are voluntary and informed.

From a human rights perspective, any potential breach of the right to life is arguably alleviated by the inclusion of strict safeguards in advance directives and enduring powers of attorney. Other rights – the rights to privacy and freedom of belief - are similarly served by these instruments that place at the forefront the control of the individual over their bodies, beliefs and end of life choices.

What can be subject to criticism is the inconsistent nature of this regulation. Common regulatory features exist between states and territories, however the level of regulation varies significantly as do the consistency in safeguards and liability provisions. For example, while advance directives legislation exists in some states/territories, in New South Wales these practices are wholly regulated by guidelines. If reliance is given to the existence of adequate safeguards in ensuring the ‘non-arbitrary’ deprivation of life then, at minimum, such safeguards should be consistent and represent best human rights practice across the country. There may be a role for the Federal Government in leading development of a nationally consistent approach on this issue.

Currently active voluntary euthanasia practices involving a ‘lethal act’ are illegal in Australia and are regulated by assisted suicide and murder provisions in criminal law. The practice of administering pain relief with the incidental effect of ‘hastening death’ is legal in a number of states/territories although, in the absence of judicial determination, it is unclear whether practices amounting to ‘a lethal act’ would be covered by these provisions. Again, there may be a leadership role for the Federal Government towards ensuring that ‘hastening death’ provisions are consistent across states and territories and accord with best practice human rights standards.

It is noteworthy that where a ‘lethal act’ is clearly identified in so-called ‘mercy-killings’, courts have typically imposed more lenient sentences, which perhaps indicates a shift in how these practices are viewed. The recent Senate Inquiry referenced Australian polls that show strong public support for active voluntary euthanasia. Yet unlike passive voluntary euthanasia, supporting active voluntary euthanasia would require law reform, where the form of regulation would be a matter of debate, rather than improving on an existing system.

Notwithstanding this, the precedent has been set in Australia with the now invalid Rights of the Terminally Ill Act 1995 (NT) which has, subsequently, been used as the model for the exposure draft of the Medical Services (Dying with Dignity) Exposure Draft Bill presented to Federal Parliament in 2014 and subjected to a subsequent inquiry by the Senate Legal and Constitutional Affairs Legislation Committee.

Apart from arguments about ‘sanctity of life’ and personal autonomy, the major objections to regulating active voluntary euthanasia as summarised by the Senate Inquiry are largely practical. The ‘role of the doctor’ and end of life choices within a palliative care process can co-exist with an active voluntary euthanasia regime. People who would not wish to choose active voluntary euthanasia options could remain within the palliative care process and access the options it offers. All doctors would not be required to provide euthanasia services, only those who wished to do so.

Further, non-doctors could possibly be involved in the provision of euthanasia services, which currently occurs in Switzerland. ‘Slippery slope’ arguments are primarily concerned with the risk that unsanctioned deaths would occur without specific consent and/or in non-terminal cases. The practical solution to this would be to improve the safeguards contained within any regulatory regime in order to prevent this from occurring, to the greatest extent possible.

Well drafted ‘proactive’ legislation permitting and regulating active voluntary euthanasia can deliver certainty, transparency and above all, protection to all who may be involved in these practices. This would not be the case if such practices were simply decriminalised. If jurisdictions in Australia were simply to decriminalize participation in voluntary euthanasia processes without regulating such processes, this may not be consistent with the State’s positive obligation to protect against arbitrary deprivations of life in article 6 of the ICCPR.

It is arguable whether practices amounting to active voluntary euthanasia are best regulated by criminal law provisions. The use of a number of ‘mitigating’ mechanisms in so-called ‘mercy killings’ seems to indicate a criminal justice system grappling to find the right balance between intention and outcome. However, it must be acknowledged that for some the best possible safeguard is a total ban on these practices that the criminal law currently provides.

If it is accepted that a ‘proactive’ legislative approach was able to deal with the practical objections to active voluntary euthanasia, then it would be incumbent on the Commission to advocate for a model with best practice safeguards which meet human rights standards. Other international comparative jurisdictions may provide better safeguards or approaches to improve upon the model presented to Federal Parliament in 2014. The safeguards contained within that model would allow people to ‘expressly state’ their wishes through a ‘Certificate of Request’. Such an instrument is intended to provide certainty to all participants in the process, including health professionals and law enforcement, and would be accompanied by a range of safeguards to ensure that the decision made is both voluntary and informed. Such safeguards aim to minimise the risk of any arbitrary deprivation of life, and confer to people the right to control over their end of life choices in a manner that is consistent with their beliefs.

The alternative is to allow the prohibition of such practices to remain within the realm of criminal law. However, the groundswell of public support and history of legislative attempts within Australia, as well as the general trend toward legislating active voluntary euthanasia in a number of comparable countries, may signal a social shift on this issue which may in time compel a definitive legal response.

[1] Castan Centre for Human Rights, Euthanasia, Have you got that right? At http://www.haveyougotthatright.com/seasons/season-1/#euthanasia (viewed 8 April 2016). [2] Castan Centre for Human Rights, Euthanasia, Have you got that right? At http://www.haveyougotthatright.com/seasons/season-1/#euthanasia (viewed 8 April 2016). [3] Castan Centre for Human Rights, Euthanasia, Have you got that right? At http://www.haveyougotthatright.com/seasons/season-1/#euthanasia (viewed 8 April 2016). [4] George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Opportunity Commission (1996), 2. At https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/human-rights-and-euthanasia (viewed 8 April 2016). [5] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), pi. [6] George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Opportunity Commission (1996), p 2. [7] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), pi. [8] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), pi. [9] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), pi. [10] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), piii. [11] See, e.g. Queensland Government: Queensland Health, Implementation Guidelines: End-of-life care: Decision-making for withholding and withdrawing life-sustaining measures from adult patients, part 2. At: https://www.health.qld.gov.au/qhpolicy/docs/gdl/qh-gdl-005-1-2.pdf [12] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 28. [13] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 28. [14] Australian Medical Association, Position Statement on the Role of the Medical Practitioner in End of Life Care 2007 (Amended 2014). At: https://ama.com.au/position-statement/role-medical-practitioner-end-life-care-2007-amended-2014 (viewed 8 April 2016). [15] Australian Medical Association, Position Statement on the Role of the Medical Practitioner in End of Life Care 2007 (Amended 2014). At: https://ama.com.au/position-statement/role-medical-practitioner-end-life-care-2007-amended-2014 (viewed 8 April 2016). [16] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 28. [17] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 28-9. [18] See, for example, NSW Government, Department of Health, What is Advance Care Planning? (11 February 2016). At: http://www.health.nsw.gov.au/patients/acp/Pages/advance-care-planning.aspx (viewed 8 April 2016) ; Government of Western Australia, Department of Health, Frequently Asked Questions, Advance Health Directives. At http://www.health.wa.gov.au/advancecareplanning/home/faqs.cfm#25 (viewed 8 April 2016). [19] Government of Western Australia, Department of Health, Frequently Asked Questions, Advance Health Directives. At http://www.health.wa.gov.au/advancecareplanning/home/faqs.cfm#25 (viewed 8 April 2016). [20] Medical Treatment (Health Directions) Act 2006 (ACT) ss 7 and 9. [21] Advance Care Directives Act 2013 (SA) s 11 (requires use of particular form); Advance Personal Planning Act 2013 (NT) ss 8(1)(a), 9, 10, and 38; Medical Treatment Act 1988 (Vic) s 5; Medical Treatment (Health Directions) Act 2006 (ACT) ss 7-9; Guardianship and Administration Act 1990 (WA) ss 3 and 110P; Powers of Attorney Act 1998 (Qld) s 35. Note though, for example, in Victoria and the ACT palliative care is expressly excluded from the definition of medical treatment which a person can refuse (see ss 3 and 4 of the Medical Treatment Act 1988 (Vic) and s 6 of the Medical Treatment (Health Directions) Act 2006 (ACT)). [22] Advance Care Directives Act 2013 (SA) s 34(2); Advance Personal Planning Act 2013 (NT) s 40; Medical Treatment (Health Directions) Act 2006 (ACT) s 11; Guardianship and Administration Act 1990 (WA) s 110S (‘at any time the maker of the directive is unable to make reasonable judgments in respect of that treatment’).

[23] Powers of Attorney Act 1998 (Qld) s 36. Also, s 66A of the Guardianship and Administration Act 2000 (Qld) provides that whether contained in an advance directive or given by an enduring power of attorney, ‘consent to the withholding or withdrawal of a life-sustaining measure for the adult cannot operate unless the adult’s health provider reasonably considers the commencement or continuation of the measure for the adult would be inconsistent with good medical practice.’

[24] Medical Treatment Act 1988 (Vic) s 5. [25] Advance Care Directives Act 2013 (SA) ss 19 and 36 and Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17(2)(b); Advance Personal Planning Act 2013 (NT) ss 41, 45, 52 and 53(1) and (4); Medical Treatment Act 1988 (Vic) s 6; Guardianship and Administration Act 1990 (WA) s 110ZJ (note however that there is an exception in this Act for urgent treatment following an attempted suicide, in which case a directive may be overridden – see s 110ZIA); Powers of Attorney Act 1998 (Qld) s 36 (1)(b) (but see s 103, which protects health providers for non-compliance with an advance health directive in certain circumstances, including if the health provider believes that the directive is ‘inconsistent with good medical practice’). [26] See, e.g. Powers of Attorney Act 1998 (Qld) s 103; Advance Care Directives Act 2013 (SA) s 36(2). [27] See, for e.g., Advance Care Directives Act 2013 (SA) s 38; Advance Personal Planning Act 2013 (NT) s 45; Guardianship and Administration Act 1990 (WA) s 110ZK. [28] See Advance Personal Planning Act 2013 (NT) ss 45 and 46 and Guardianship and Administration Act 1990 (WA) s 110ZL. [29] Medical Treatment Act 1988 (Vic) s 9; Advance Care Directives Act 2013 (SA), s 41; Medical Treatment (Health Directions) Act 2006 (ACT) s 16. [30] Powers of Attorney Act 1998 (Qld) s 101. [31] Powers of Attorney Act 1998 (Qld) s 37. Section 296 of the Criminal Code 1899 (Qld) provides that ‘A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.’ [32] NSW Government, NSW Health, Guideline: Advance Care Directives (NSW) – Using (2005) 5. At http://www0.health.nsw.gov.au/policies/gl/2005/GL2005_056.html (viewed 8 April 2016). [33] Advance Care Directives Act 2013 (SA) ss 21, 23(1) and 34(1); Advance Personal Planning Act 2013 (NT), ss 15, 16, 17, 20; Powers of Attorney Act 2014 (Vic) ss 22, 23; Powers of Attorney Act 2006 (ACT) ss 8, 13(2), 32; Guardianship and Administration Act 1990 (WA) ss 3, 110B 110F and 110G(1); Powers of Attorney Act 1998 (Qld) ss 32 and 33(4); Guardianship and Administration Act 1995 (Tas) ss 25(2)(e) and 32; Guardianship Act 1987 (NSW) ss 3, 6 and 6A.

[34] Advance Care Directives Act 2013 (SA) s 35; Advance Personal Planning Act 2013 (NT) ss 18 and 21; Medical Treatment (Health Directions) Act 2006 (ACT) ss 44, 46 and sch 1, cl 1.11(2); Guardianship and Administration Act 1990 (WA) ss 110G(1) and 110ZJ(2); Guardianship and Administration Act 1995 (Tas) s 32(6); Guardianship Act 1987 (NSW) s 6E (1)(d), (2) and (3); Powers of Attorney Act 2014 (Vic) ss 21 and 24.

[35] Medical Treatment Act 1988 (Vic) s 5B(2). [36] Guardianship and Administration Act 2000 (Qld) s 66A and Powers of Attorney Act 1998 (Qld) sch 2 cl 5(2). [37] Advance Care Directives Act 2013 (SA) s 41; Advance Personal Planning Act 2013 (NT) s 46; Medical Treatment Act 1988 (Vic) s 9 (and see sch 3); Guardianship and Administration Act 1990 (WA) s 110ZK; Guardianship and Administration Act 1995 (Tas) ss 47 and 48; Guardianship Act 1987 (NSW) s 6G. [38] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), 1. [39] Advance Personal Planning Act 2013 (NT) s 55; Medical Treatment Act 1988 (Vic) s 4; Medical Treatment (Health Directions) Act 2006 (ACT) s 6; Guardianship and Administration Act 1990 (WA) s 110ZB; Powers of Attorney Act 1998 (Qld) s 39. [40] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), 1. [41] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), i-ii. [42] (2009) 74 NSWLR 88. [43] Hunter and the New England Area Health Authority v A (2009) 74 NSWLR 88, [40]. [44] (2009) WASC 229. [45] Brightwater Care Group v Rossiter (2009) WASC 229, [32]. [46] See U.S. Living Will Registry, Frequently Asked Questions (FAQ) About the U.S Living Wills Registry, http://www.uslivingwillregistry.com/faq.shtm (viewed 8 April 2016). [47] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 1: Passive Voluntary Euthanasia, Parliamentary Library Research Paper No 3 (1996-7), 19. [48] Applying to England and Wales. [49] Mental Capacity Act UK (2005) ss 24, 25(5) &(6). [50] Mental Capacity Act UK (2005) ss 25-6. [51] Mental Capacity Act UK (2005) s 11. [52] Mental Capacity Act UK (2005) s 11. [53] For more information see Canadian Virtual Hospice, Advance Care Planning Across Canada (15 July 2015). At http://www.virtualhospice.ca/en_US/Main+Site+Navigation/Home/Topics/Topics/Decisions/Advance+Care+Planning+Across+Canada.aspx (viewed 8 April 2016). [54] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 12. [55] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 6. [56] Family Council of Victoria, Submission No 85 to Senate Legal and Constitutional Affairs Legislation Committee, Medical Services (Dying with Dignity) Exposure Draft Bill 2014, August 2014, 2-3. At: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Dying_with_Dignity/Submissions (viewed 8 April 2016). [57] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 6-7. [58] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 10. [59] Quoted in Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 12. [60] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 11. [61] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 11. [62] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 11. [63] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 7. [64] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 8. [65] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 10. [66] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 10. [67] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 6. [68] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 6. [69] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 38. [70] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 38. [71] George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Opportunity Commission (1996), 4. At https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/human-rights-and-euthanasia (viewed 8 April 2016). [72] George Williams, ‘Changing minds on the right to die’, The Drum (online), 25 February 2015. At http://www.abc.net.au/news/2015-02-25/williams-euthanasia/6261884 (viewed 8 April 2016). [73] George Williams, ‘Changing minds on the right to die’, The Drum (online), 25 February 2015. At http://www.abc.net.au/news/2015-02-25/williams-euthanasia/6261884 (viewed 8 April 2016). [74] George Williams, ‘Changing minds on the right to die’, The Drum (online), 25 February 2015. At http://www.abc.net.au/news/2015-02-25/williams-euthanasia/6261884 (viewed 8 April 2016). [75] George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Opportunity Commission (1996), 4. At https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/human-rights-and-euthanasia (viewed 8 April 2016). [76] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 1-2. [77] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 28. [78] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 5. [79] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 2. [80] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 5. [81] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 5. [82] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 5.

[83] Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17(1).

[84] Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17(1) and (3)(a). [85] Guardianship and Administration Act 1990 (WA) s 110ZL. [86] Criminal Code Act Compilation Act 1913 (WA) s 259(1). [87] Criminal Code Act 1899 (Qld) s 282A(1). [88] Criminal Code Act 1899 (Qld) s 282A(2). [89] Criminal Code Act 1899 (Qld) s 282A(4). [90] Criminal Code Act 1899 (Qld) s 282A(5). [91] Criminal Code Act 1899 (Qld) s 282A(3). [92] Medical Treatment Act 1988 (Vic) s 4(2). [93] Medical Treatment Act 1988 (Vic) s 3. [94] See Medical Treatment Act 1988 (Vic) s 4(3) and Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 6. [95] Medical Treatment (Health Directions) Act 2006 (ACT) s 6(1). [96] Medical Treatment (Health Directions) Act 2006 (ACT) Dictionary. [97] Medical Treatment (Health Directions) Act 2006 (ACT) s 17(1) and (2). [98] Medical Treatment (Health Directions) Act 2006 (ACT) s 17(3). [99] Advance Personal Planning Act 2013 (NT) s 51(3). [100] Crimes Act 1900 (ACT) s 17; Crimes Act 1900 (NSW) s 31C; Crimes Act 1958 (Vic) s 6B(2). [101] Criminal Code Act 1899 (Qld), s 311; Criminal Code Act Compilation Act 1913 (WA) s 288. [102] Criminal Law Consolidation Act 1935 (SA), s 13A(5). [103] Criminal Code Act 1924 (Tas) s 163. [104] Criminal Code Act (NT) s 162. [105] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 9. [106] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 9. [107] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 9. [108] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 9. [109] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 9. [110] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 10.

[111] Crimes Act 1900 (ACT) s 12; Crimes Act 1900 (NSW) s 18; Criminal Code Act (NT) s 156; Criminal Code 1899 (Qld) s 302; Criminal Law Consolidation Act 1935 (SA) s 11 and Legal Services Commission of South Australia, Murder , at http://www.lawhandbook.sa.gov.au/ch12s05s01s07.php (viewed 11 April 2016); Criminal Code Act 1924 (Tas) s 157; Crimes Act 1958 (Vic) s 3 and Judicial College of Victoria, 7.2.1.1 Bench notes: Intentional or Reckless Murder (1 November 2014) Criminal Charge Book, at http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4478.htm (viewed 4 April 2016); Criminal Code Act Compilation Act 1913 (WA) s 279.

[112] Criminal Code Act (NT) s 157; Criminal Code 1899 (Qld) s 305; Criminal Law Consolidation Act 1935 (SA) s 11. [113] Criminal Code Act Compilation Act 1913 (WA) s 279(4). [114] Crimes Act 1900 (ACT) s 19A; Crimes Act 1900 (NSW) s 19A; Criminal Code Act 1924 (Tas) s 158, Crimes Act 1958 (Vic) s 3. [115] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 10. [116] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 10. [117] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 11. [118] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 11. [119] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 11. [120] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 11. [121] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 11. [122] Rights of the Terminally Ill Act 1995 (NT) ss 7 and 8. [123] Rights of the Terminally Ill Act 1995 (NT) s 7(e) and (f). [124] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 12. [125] Rights of the Terminally Ill Act 1995 (NT) s 7(i)-(m). [126] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 13. [127] Rights of the Terminally Ill Act 1995 (NT) s 10(1). [128] Rights of the Terminally Ill Act 1995 (NT) s 5. See also s 20(4). [129] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 14. [130] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 14. [131] Rights of the Terminally Ill Act 1995 (NT) s 20(1). [132] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 14. [133] Rights of the Terminally Ill Act 1995 (NT) ss 6(1), 11 and 12. [134] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 18. [135] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 18. [136] Natasha Cica, Euthanasia – the Australian Law in an International Context Part 2: Active Voluntary Euthanasia, Parliamentary Library Research Paper No 4 (1996-7) 18. [137] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [138] Explanatory Memorandum, Restoring Territory Rights (Dying with Dignity) Bill 2016 (Cth). [139] Medical Services (Dying with Dignity) Bill 2014 (Cth) Exposure Draft. Available at http://www.aph.gov.au/~/media/Committees/Senate/committee/legcon_ctte/dying_with_dignity/Exposure%20draft%20dying%20with%20dignity.pdf (viewed 8 April 2016). [140] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 1. [141] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 1. [142] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 1. [143] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 1. [144] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 2. [145] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 1. [146] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 39. [147] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 40. [148] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 15. [149] Subsection 51 (xxiiiA) of the Australian Constitution states ‘the Parliament shall subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to...the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances’. [150] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 17. [151] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 18. [152] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 18. [153] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 18-19. [154] Subsection 51(xx) of the Australian Constitution states ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. [155] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 22. [156] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 22. [157] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 22-23. [158] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 23. [159] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 23. [160] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 23-24. [161] Section 122 of the Australian Constitution (Government of territories) states ‘The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority if and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either the House of Parliament to the extent and on the terms which it thinks fit’. [162] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 24-25. [163] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 25. [164] Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (2014) 25. [165] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [166] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [167] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [168] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [169] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 46. See also CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [170] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [171] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [172] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [173] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [174] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). See also Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [175] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [176] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [177] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [178] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). See also Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [179] Ministere de la Sante & Ministere de la Sociale Securite, Euthanasia and assisted suicide – Law of 16 March 2009. [180] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [181] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [182] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [183] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [184] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [185] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [186] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [187] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. See also CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [188] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [189] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). [190] Castan Centre for Human Rights Law, Euthanasia Laws (10 March 2015) Have you got that right? At http://www.haveyougotthatright.com/s-ep3-laws (viewed 8 April 2016). [191] CARE, Country Comparison. At http://www.care.org.uk/our-causes/sanctity-life/assisted-suicide-euthanasia/country-comparison (viewed 8 April 2016). See also Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [192] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [193] Lara Giddings MP and Nick McKim MP, Voluntary Assisted Dying – A Proposal for Tasmania, Consultation Paper (2013) 45. [194] Carter v Canada (Attorney General), 2015 SCC 5. [195] Carter v Canada (Attorney General), 2015 SCC 5, [127]. [196] Carter v Canada (Attorney General), 2016 SCC 4. [197] Carter v Canada (Attorney General), 2015 SCC 5, [132]. [198] Special Joint Committee on Physician-Assisted Dying, Parliament of Canada, Medical assistance in Dying: A patient-centred approach (2016) 2. [199] Special Joint Committee on Physician-Assisted Dying, Parliament of Canada, Medical assistance in Dying: A patient-centred approach (2016) 3-4. [200] An Act respecting end-of-life care, RSQ, c S-32.0001, s 3(6). [201] An Act respecting end-of-life care, RSQ, c S-32.0001, s 26. [202] An Act respecting end-of-life care, RSQ, c S-32.0001, s 29. [203] An Act respecting end-of-life care, RSQ, c S-32.0001, ss 38-42. [204] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). [205] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). [206] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 121. [207] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 122. [208] George Zdenkowski, Human Rights and Euthanasia, Occasional Paper of the Human Rights and Equal Opportunity Commission (1996), 11. At https://www.humanrights.gov.au/our-work/rights-and-freedoms/projects/human-rights-and-euthanasia (viewed 8 April 2016).

[209] See UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands , Human Rights Committee, 72 sess, UN Doc CCPR/CO/72/NET (27 August 2001).

[210] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 155. [211] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 72nd sess, UN Doc CCPR/CO/72/NET (27 August 2001) para 5(a). [212] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 72nd sess, UN Doc CCPR/CO/72/NET (27 August 2001) para 5(b). [213] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 72nd sess, UN Doc CCPR/CO/72/NET (27 August 2001) para 5(b). [214] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 72nd sess, UN Doc CCPR/CO/72/NET (27 August 2001) para 5(d). [215] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 96th sess, UN Doc CCPR/C/NLD/CO/4 (22 August 2009) para 7. [216] UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations Of The Human Rights Committee – Netherlands, Human Rights Committee, 96th sess, UN Doc CCPR/C/NLD/CO/4 (22 August 2009) para 7. [217] Opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953). [218] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [39]. [219] Haas v Switzerland (European Court of Human Rights, Chamber, Application No 31322/07, 20 January 2011) [54] (emphasis added). [220] Haas v Switzerland (European Court of Human Rights, Chamber, Application No 31322/07, 20 January 2011) [58]. [221] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015). [222] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [117]. [223] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [121] and [124] (emphasis added). [224] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [142]. [225] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [147]. [226] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [147]. [227] UN Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), UN Doc HRI/GEN/1/Rev.1 at 30 (10 March 1992) [2]. [228] UN Human Rights Committee, General Comment No 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), UN Doc HRI/GEN/1/Rev.1 at 30 (10 March 1992) [2]. [229] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [8]. [230] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [51]. [231] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [55]. [232] Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford University Press, 3rd ed, 2013) 285. [233] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 386. [234] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 385. [235] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 385, 386. [236] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 387. [237] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 387. [238] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 388. [239] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 389. [240] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 389. [241] UN Human Rights Committee, General Comment No 16: Article 17 (Right to privacy), UN Doc HRI/GEN/1/Rev.1 at 21 (8 April 1988) [4]. [242] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 385. [243] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [65]. [244] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [65]. [245] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [61]. [246] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [61]. [247] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [62]. [248] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [63]. [249] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [67]. [250] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [78]. [251] Haas v Switzerland (European Court of Human Rights, Chamber, Application No 31322/07, 20 January 2011) [51]. Confirmed in Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015), at [142]. [252] Lambert and Others v France (European Court of Human Rights, Grand Chamber, Application no 46043/14, 5 June 2015) [180]. [253] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), arts 4(1) and 5(1) and (2).

• [254] Convention on the Rights of Persons with Disabilities , opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 1.

[255] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 3. [256] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 10. [257] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 5. [258] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 25(f). [259] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), arts 17 and 22. [260] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 12(2) and (3). [261] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 12(4). See also UN Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Article 12: Equal recognition before the law, UN Doc CRPD/C/GC/1 (19 May 2014) [22]. [262] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008), art 25(d). [263] UN Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Article 12: Equal recognition before the law, UN Doc CRPD/C/GC/1 (19 May 2014) [41]. [264] UN Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014): Article 12: Equal recognition before the law, UN Doc CRPD/C/GC/1 (19 May 2014) [42]. [265] Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2nd rev. ed, 2005) 412. [266] Pichon and Sajous v France (European Court of Human Rights, Chamber, Application No 49853/99, 2 October 2001) p 5. See also Skugar and Others v Russia, (European Court of Human Rights, Chamber, Application No 40010/04, 3 December 2009). [267] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [82]. [268] Pretty v United Kingdom (European Court of Human Rights, Chamber, Application No 2346/02, 29 April 2002) [83]. [269] Australian Human Rights Commission Act 1986 (Cth) s 11(e). [270] Australian Human Rights Commission Act 1986 (Cth) s 11(g).

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Why Australia hesitates to legalise euthanasia

Senior Lecturer, Faculty of Law, Queensland University of Technology

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The Australian public supports legalising euthanasia and bills are introduced into state parliaments every year. Yet Australian governments continue to resist legalising euthanasia or its cousin, assisted suicide.

Some of the concerns at the heart of this resistance can be addressed with carefully drafted legislation. But others, such as how we value life, remain key challenges for policymakers.

Vulnerability concerns

When euthanasia (I use the term here to include assisted suicide) is debated, both sides tend to raise “slippery slope” and vulnerability concerns.

Opponents of legalisation say: once we take the significant step of allowing doctors to kill patients (or to help patients end their lives) in narrowly defined circumstances, there will be pressure to increase the range of circumstances with amending legislation. And it’s easier to amend existing legislation than enact it in the first place (the slippery slope concern).

Or, patients who do not really want to end their lives might feel they are a burden and so feel a subtle pressure, real or imagined, to end their lives when this is not what they want (the vulnerability concern).

Proponents – such as broadcaster and television producer Andrew Denton – generally respond by claiming there is no evidence of either concern being realised in places where euthanasia is lawful.

The issue about evidence is controversial, and so the debate about these two well-known concerns goes on. But it seems that both concerns can be alleviated.

The vulnerability concern, in particular, can largely be dealt with by providing safeguards in legislation. We can require qualified, independent third parties to check whether the decision is genuinely voluntary, rather than coerced, and provide a minimum period of time during which the patient’s decision must be an unwavering one.

Although there is scepticism about whether these safeguards would always be complied with or effective, this is no less a concern with the status quo, such as with decisions to withdraw life-sustaining measures or give pain relief which may hasten death. These are just as susceptible to abuse as euthanasia, but are already lawful.

So why is there an abiding resistance to euthanasia, and is there anything that can be done about it?

Question of access

The main difficulty in combating resistance to euthanasia has been deciding who should have access: should it be restricted to the terminally ill?

Should it extend to people who have an unbearable physical condition which does not make them terminally ill?

Or should it even extend to people who aren’t physically ill at all, but are experiencing unbearable mental suffering?

Andrew Denton suggests it should not be restricted but based simply on “unbearable suffering”, as it is in Belgium . This means that it could extend to people who have no physical ailment.

A case discussed in a recent episode of the SBS program Dateline illustrates just what a dilemma the access question is. The program presented the case of a woman in Belgium, Simona de Moor, 85. She wanted to take the opportunity to end her life under what the program describes as “the most liberal euthanasia laws in the world”.

Simona was not terminally ill. But under Belgian law it is not necessary to be terminally ill for euthanasia or assisted suicide. It is sufficient to be experiencing unbearable mental suffering that cannot be alleviated.

Someone who is depressed, where that depression is not responsive to attempts at alleviation, can ask for euthanasia or assisted suicide, provided the request is voluntary and well thought through (it doesn’t impair capacity), and the desire to die is unwavering.

In the program, Simona tells viewers she lost the will to live after her daughter, with whom she was very close, died – just three months before the day Simona would herself choose to die by lethal poisoning.

One worry here is that Simona’s judgement is clearly being made while she is still grieving for her daughter.

However, we can draft legislation to ensure that Australians would not be able to make such a choice so soon after the loss of a loved one. So this concern is not fatal to the case for euthanasia.

The deeper worry is this: if we allow people with no terminal illness to have help to end their lives, what avenues for survival and recovery are closed off?

Value of human life

Legalisation this broad inevitably brings about a shift in how we think about our lives. In Belgium, someone who is depressed but otherwise well, such as Simona, is able to enter a train of thought that is allowed to gather momentum because euthanasia is a genuine option.

Alternative ways of thinking about her situation become unavailable. If you keep thinking about ending your life, just as if you keep thinking about failure, it can become a self-fulfilling prophecy. Other possibilities are not even entertained.

This is what opponents worry about when they say euthanasia could “erode” the value of human life. This is one horn of the dilemma about euthanasia for patients who are not terminally ill.

We can try to resolve this worry by enacting a law that allows euthanasia only for “terminally ill” people.

But this lands us on the other horn. There are always those rare cases of someone – such as Tony Nicklinson in England – whose suffering is by all objective standards unbearable but there is no terminal illness. And this is the very case that prompted the UK Supreme Court to encourage parliament to consider legislation.

Nicklinson had a physical condition (locked-in syndrome), unlike Simona who had no physical ailment at all. So we could limit euthanasia to those who at least have a physical condition. But then, why should the option be limited to people with a physical condition?

There is no easy answer to this dilemma. But, to use a famous phrase, hard cases make bad law. I don’t take this phrase to mean we should never legislate to cover the rare cases such as Nicklinson’s, but only that we need to be really sure, and get it right, before we do.

As for the less rare cases, we should think instead of ways of helping people who suffer which don’t involve encouraging them to end their lives.

• Voluntary euthanasia
• Legislation
• Assisted dying
• Slippery slope

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Voluntary assisted dying

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• Voluntary assisted dying (VAD) is when someone has medical assistance to end their life because they have an advanced medical condition that causes intolerable suffering.
• Currently, VAD is available in Queensland, New South Wales, South Australia, Tasmania, Victoria and Western Australia.
• Strict criteria govern who is eligible for VAD, but these criteria vary slightly from state to state.
• If you have a terminal medical condition (a disease or illness that is likely to cause death soon) and are thinking about VAD, your doctor or health professional can give you more information.

What is voluntary assisted dying?

Voluntary assisted dying (VAD) is when someone chooses medical assistance to end their life . Terms such as ‘physician-assisted suicide', ‘physician-assisted dying' and ‘euthanasia' refer to VAD.

VAD is voluntary. You can only choose VAD if you are an adult who is able to make decisions and if you choose VAD on your own. No one can force you.

There are 2 main types of VAD:

• self-administered — when a person takes VAD medicine that an eligible healthcare practitioner has prescribed for them
• practitioner-administered — when an eligible healthcare practitioner administers VAD medicine to a person

Is voluntary assisted dying legal?

VAD is legal and available in Queensland, New South Wales, South Australia, Victoria, Western Australia and Tasmania.

Contact your state's health department for the latest VAD information relevant to your state.

In the past, Commonwealth laws stopped Australian territories (Northern Territory and Australian Capital Territory) from making new laws on VAD. Recent changes now allow the territories to pass VAD laws, so it is possible that VAD will be legalised in the territories in the future.

What are the eligibility criteria for voluntary assisted dying?

There is strict eligibility criteria in all states where VAD is available. The criteria between the states are similar, but there are some differences. The person must:

• be an adult (18 years or older)
• be an Australian citizen or permanent resident who has been a resident in Australia for at least 3 continuous years when the first request is made
• have lived for at least 12 months in the state in which they are requesting VAD — exemptions may apply
• be able to make decisions
• make it their own choice without pressure or duress from others
• have a disease, illness or medical condition that is likely to cause death within a specified time
• have an advanced condition that causes intolerable suffering
• make an enduring request for VAD (meaning that their request must be ongoing)

Which medical conditions may make me eligible for voluntary assisted dying?

To be eligible for VAD in most states, a medical condition must be expected to cause death within 6 months, or 12 months in the case of a neurodegenerative (progressive neurological ) condition. In Queensland, the expected timeframe is 12 months for all medical conditions.

People with dementia are generally not eligible for VAD. This is because dementia advanced enough to allow a person to qualify for VAD is likely to hinder their ability to make decisions.

A disability or mental illness alone does not make a person eligible for VAD, unless they meet all of the other eligibility criteria listed above.

What is end-of-life care?

End-of-life care includes the support and assistance you may get when you are diagnosed with a terminal condition.

Palliative care

The goal of palliative care is to relieve pain and other distressing symptoms, and to improve your quality of life, without necessarily curing your illness.

You can choose palliative care alongside other medical treatments, including those that aim to cure your disease. You can also get palliative care if you choose VAD.

Many states require that medical professionals who give information about VAD also give information about palliative care.

Advanced care planning

Advanced care planning is the process of considering your current and future health choices. It's how you can make sure that your loved ones and medical team are aware of your wishes if you ever lose the ability to make decisions.

As part of advanced care planning, you can formalise your preferences in an advance care directive. This legal document outlines your values and choices for your future care. You can also use it to appoint a substitute decision-maker who can make medical decisions for you if you are not able to.

You cannot request VAD as part of your advance care directive. This is because your advance care directive comes into effect only once you no longer have decision-making capacity. But even if you are considering VAD, it's still a good idea to make an advanced care directive, in case you unexpectedly are no longer able to make decisions.

The process for creating an advance care directive varies slightly from state to state.

Visit Advance Care Planning Australia for more information and to create your own advance care directive.

Who should I talk to if I am considering voluntary assisted dying?

If you are thinking about VAD, ask your doctor or healthcare professional about it. In some states, some medical professionals are not legally allowed to start a conversation about VAD, so you will need to ask them. Your doctor or healthcare practitioner will give you more information about VAD and other end-of-life care choices, such as ongoing treatment or palliative care.

Some medical practitioners choose not to assist with VAD requests. If your doctor does not assist with VAD requests, they may refer you to another healthcare practitioner. In some states, even healthcare practitioners who do not assist with VAD requests must refer you to someone who does.

What is the process for voluntary assisted dying?

The exact process differs slightly from state to state, but the basic process involves these steps:

• A person requests VAD from an eligible medical practitioner.
• The same eligible medical practitioner does an eligibility assessment for VAD.
• A second eligible medical practitioner does an eligibility assessment for VAD.
• The person requests for VAD again, in writing.
• The person makes a final request for VAD.
• Officials authorise VAD.
• An eligible healthcare practitioner prescribes and dispenses VAD medicine.
• an eligible person takes VAD medicine, or
• an eligible healthcare practitioner gives the eligible person VAD medicine

If you take the VAD medicine yourself (known as self-administration), you can choose a suitable time and place to do so. If you wish, other people, such as friends and family, can be there.

If VAD medicine is given by a healthcare practitioner, most states require a witness.

It's important to remember that you can withdraw (stop) your request for VAD at any time, even after you have had an assessment or made a request in writing.

Where can I get support if I'm considering voluntary assisted dying?

Coping with a terminal condition and end-of-life decisions can be emotional and stressful. There are many people who can support you as you come to terms with your condition and make important decisions about your health.

Your doctor or medical team can give you information and support while you consider VAD, as well as information about other end-of-life care choices, including ongoing treatment and palliative care.

Your family, friends or other support people, such as carers, can support you as you consider your end-of-life choices. Many people find it difficult to discuss end-of-life matters with their friends and family, especially if friends and family do not agree with their decisions. Your doctor can help support you in discussing VAD with your loved ones.

If you need more support, your doctor or medical team may refer you to a counsellor . You can also contact the support services referred to below.

Many states have VAD Care Navigator services to help you find out about VAD in your state. Check your local Department of Health website to see if your state has a VAD Care Navigator service.

Where can friends, family and carers get support?

Friends and family can help to support someone with a terminal illness. However, many people find it difficult and emotional to discuss end-of-life choices with their loved ones, especially if views differ.

If someone close to you is considering VAD, healthcare professionals and services can provide information and support, including:

• your doctor
• your loved one's doctor, if your loved one consents for their doctor to discuss their medical situation with you
• in-person counselling services
• phone counselling services , listed below

Resources and support

• For more information about VAD in your state, visit your health department .
• For more information about palliative care, visit the Palliative Care Australia website .
• If you are a carer, you can search the Carer Gateway website , call 1800 422 737 or use their interactive service finder to locate your nearest carer support services.
• Anyone involved with voluntary assisted dying in Western Australia — including patients, the family and carers of patients, community members, health professionals and service providers — can access the WA Voluntary Assisted Dying Statewide Care Navigator Service .

For emotional support, contact:

• Griefline on 1300 845 745
• Grief Australia on 1800 642 066
• Lifeline (for anyone having a personal crisis) on 13 11 14 or chat online, 24 hours a day

Learn more here about the development and quality assurance of healthdirect content .

Last reviewed: April 2023

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Voluntary assisted dying | Queensland Health

The Voluntary Assisted Dying Bill proposes to establish a scheme that will enable certain individuals who are suffering and dying to choose the timing and circumstances of their death.

Read more on Queensland Health website

Voluntary assisted dying is a choice available to an eligible person who is approaching the end of their life.

Read more on NSW Health website

WA Voluntary Assisted Dying Statewide Care Navigator Service

The WA VAD Statewide Care Navigator Service (SWCNS) is available to provide support to anyone involved with voluntary assisted dying in WA.

Read more on WA Health website

Voluntary assisted dying in South Australia explained | SA Health

Information about the key aspects of voluntary assisted dying to help you gain a better understanding of what it is.

Read more on SA Health website

Coping With Grief After Voluntary Assisted Dying: A Guide For Family And Friends  | Griefline

If you are grieving for someone who accessed voluntary assisted dying, you may feel a range of emotions and challenges. This resource offers practical information and guidance to help you cope.

Read more on Griefline website

Voluntary assisted dying - Better Health Channel

Victoria is the first state in Australia to pass voluntary assisted dying laws. The Voluntary Assisted Dying Act (2017) provides a safe legal framework for people who are suffering and dying to choose the manner and timing of their death.

Read more on Better Health Channel website

End of Life Law - Voluntary Assisted Dying -FAQs

Frequently asked questions about voluntary assisted dying

Read more on End of Life Directions for Aged Care ELDAC website

End of Life Law - Voluntary Assisted Dying - Overview

Voluntary assisted dying (VAD) is the assistance provided by a health practitioner to a person with a terminal disease, illness or medical condition to end their life.

Voluntary Assisted Dying | Living with illness | Patients and Carers | Community

Voluntary Assisted Dying or VAD refers to the law allowing people with an advanced life-limiting illness to control when they die by taking a medicine prescribed by their doctor.

Read more on CareSearch website

Tips To Improve Your Sleep | Griefline

Having difficulty sleeping? Changes to your sleep patterns is common when experiencing grief and loss. Click here to learn how you can improve your sleep.

End of Life Law - Voluntary Assisted Dying - Factsheets

These factsheets focus on the roles, and legal rights and obligations of health professionals and residential facilities in relation to voluntary assisted dying (VAD).

Voluntary Assisted Dying | Clinical Care | Nureses | Health Professionals

Voluntary Assisted Dying or VAD refers to “the legal administration of a lethal drug to a terminally ill person at the request of that person”.

Voluntary Assisted Dying | Clinical Decisions | General practitioner | Health Professionals

Racgp - silver book - voluntary assisted dying in aged care.

Reproduced with permission from The Royal Australian College of General Practitioners

Read more on RACGP - The Royal Australian College of General Practitioners website

Advance care planning explained | Advance Care Planning

Advance care planning involves planning for your future health care and communicating your treatment preferences.

Read more on Advance Care Planning Australia website

End of Life Law - Protection for administering pain and symptom relief Factsheet

Uncertainty can arise for those giving palliative medication about whether it is lawful, particularly where a person is close to death. This factsheet explains key legal principles about providing palliative medication.

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• v.32(12); 2006 Dec

What people close to death say about euthanasia and assisted suicide: a qualitative study

To explore the experiences of people with a “terminal illness”, focusing on the patients' perspective of euthanasia and assisted suicide.

A qualitative study using narrative interviews was conducted throughout the UK. The views of the 18 people who discussed euthanasia and assisted suicide were explored. These were drawn from a maximum variation sample, who said that they had a “terminal” illness, malignant or non‐malignant.

That UK law should be changed to allow assisted suicide or voluntary euthanasia was felt strongly by most people. Those who had seen others die were particularly convinced that this should be a right. Some had multiple reasons, including pain and anticipated pain, fear of indignity, loss of control and cognitive impairment. Those who did not want to be a burden also had other reasons for wanting euthanasia. Suicide was contemplated by a few, who would have preferred a change in the law to allow them to end their lives with medical help and in the company of family or friends. The few who opposed a change in UK law, or who felt ambivalent, focused on involuntary euthanasia, cited religious reasons or worried that new legislation might be open to abuse.

Qualitative research conducted on people who know they are nearing death is an important addition to the international debate on euthanasia and assisted suicide. Those who had seen others die were particularly convinced that the law should be changed to allow assisted death.

The Netherlands and Belgium permit euthanasia performed by a doctor, and define it as the act, undertaken by a third party, which intentionally ends a person's life at his or her request. Doctor‐assisted suicide is legal in The Netherlands, Belgium and Oregon. Assisted suicide, with or without the involvement of a doctor, is legal in Switzerland. In Australia, the Northern Territory approved euthanasia in 1995, but in 1997 this bill was overturned by parliament.

In the UK, the issue of euthanasia has been widely debated since the 1870s, 1 and many argue that the question of the right to die has become one of the most important in contemporary ethics. 2 A House of Lords select committee recently produced a report on Joel Joffe's Assisted Dying for the Terminally Ill Bill, and recommended that, in future, assisted suicide and voluntary euthanasia be debated separately, allowing the possibility of a change in the law for one but not the other. 3 Lord Joffe has since redrafted his bill, which had its formal first reading in November 2005.

Euthanasia in the UK is illegal, but the application of the law is not always clear. For example, although doctors in the UK are not allowed to give treatment that causes death, doctors can withhold artificial nutrition and hydration (defined by the British Medical Association as “life‐prolonging treatments”) if they believe that this would be in the patient's “best interests”. In the absence of consensus, any decision must be authorised by a court, but the meaning of “best interests” can be controversial. Giving food and drink to the sick has long been used to symbolise “compassionate care”, 4 and some may regard the withdrawal of food and water, as in the Tony Bland case, i as a form of involuntary euthanasia or even murder. 5 , 6 Thus, the law seems to be inconsistent. 7 It forbids doctors to give a patient a lethal injection at his or her request, but permits a court to authorise death by starvation without such a request.

The UK law on assisted suicide has also been described as “contradictory, confusing and opaque”. 8 What counts as assistance in suicide in “mercy‐killing cases” seems to be rather arbitrary. In 1989, a couple were convicted because they sat and watched their daughter (who had motor neurone disease) commit suicide and die of an overdose, but in 2005 Graham Lawson was not prosecuted after he comforted his sister, who had multiple sclerosis, during a 26‐h suicide ordeal. She finally killed herself with a plastic bag. The Director of Public Prosecutions continues to consider cases individually. Under the Suicide Act 1961 section 2 (4), no prosecution for the offence of assisted suicide can take place without the consent of the Director of Public Prosecutions. He will exercise his discretion only after a suicide has taken place; therefore, no prospective guidance can be given to people. 9

Previously, attitudes to euthanasia and assisted suicide were examined mainly from the perspectives of politicians, ethicists, health professionals and the general public. 10 , 11 , 12 A few studies tried to capture the patients' perspective indirectly—for example, Seale and Addington‐Hall 13 found that a quarter of bereaved respondents would have preferred an earlier death, and examined the reasons, but they did not interview the people who were dying. Little is known about euthanasia or assisted suicide from the patients' point of view. 14 We explore these issues from the perspectives of people who knew they were terminally ill.

With the approval of the ethics committee, we invited people living in the UK to participate in a study on the experience of “living with a terminal illness”. Interviews were contributed to the website, DIPEx (Personal Experiences of Health and Illness; www.dipex.org ). 15 We interviewed 41 people who said that they had a terminal illness. We aimed for a sample with maximum variation, including younger and older people from various social backgrounds, with malignant and non‐malignant disease (table 1 ​ 1 ). 16 The sample included people who had attended a hospice for day care and others who had spent a few weeks in a hospice or nursing home. Some people were recruited through general practitioners, hospice staff and Macmillan nurses. Long discussions (to explain the study) were held with health professionals, who then approached suitable patients with full information. Patients returned a reply slip to the research team if they wished to participate. Other people volunteered after reading about DIPEx in a national newspaper, through support groups or during a conference about palliative care that included patients.

Numbers in parentheses indicate those in the entire sample.

The interviews

Most people were interviewed in their homes during 2003 and 2004 by a sociologist and asked to talk about their recent experience of illness. Some were interviewed twice, usually because of fatigue. All interviews were audiotaped and lasted 1–2 h. Rather than use a structured approach, we conducted narrative interviews, which were led by respondents. A few people themselves raised the subject of suicide, euthanasia or assisted suicide, which became a high profile issue in the media during the fieldwork. It was considered to be unethical to press respondents to talk about the subject, but in some cases the researchers judged that they could invite respondents to comment on the euthanasia debate. In some interviews the subject was initially raised during a break for rest or cup of tea (it is sometimes easier to raise a sensitive subject “off tape” in a more informal atmosphere) and then repeated as part of the taped interview. The subject was not always raised because it became apparent during the interviews that some respondents did not think they were dying (even though they had said they had a terminal illness and had volunteered for the study), and it did not seem appropriate at the time. Eighteen people discussed these topics, some briefly and others at some length.

Two members of the research team, both medical sociologists, read and re‐read the data and constructed a coding frame. Data analysis included examining expected themes such as pain and emergent themes, including suicide and assisted death, across the whole dataset and in the context of each person's interview. The method of constant comparisons was used to ensure that all perspectives were included in the analysis. 17 QSR N5 (a qualitative data‐indexing package; QSR International Pty, Melbourne, Australia) facilitated the analysis. 18 AC and SZ regularly discussed coding and interpretation of results (for more details on methods, see www.dipex.org/methodology.aspx ).

Arguments supporting voluntary euthanasia or assisted suicide

Pool 5 found that “control over the time and manner of death” was a central theme in requests for euthanasia in a Dutch hospital. Some people we interviewed also mentioned a need to control events, but had further reasons for wanting a change in the law. For example, a young woman with chronic obstructive lung disease said that without a change in the law she may commit suicide alone. She was in great pain, and could not find a place in a hospice. Throughout the interview she said she wanted to be in control and emphasised her right to choose:

R: I myself want to be in control as long as I can, I don't want doctors and nurses controlling me (…) I'm on morphine, I get a lot of breakthrough pain, when I get to the pitch where I really can't cope with anything any more, where my quality of life is totally gone, I will tell my husband I want a really good day out with the kids which is when he'll know that when I go to bed that night I won't wake up the next morning. I: Because you're going to take control? R: Yes. I: Have you talked to anyone else about that? R: Yes, I've talked to my GP about it. He wishes I lived in another country because that decision would be helped. (…) I: And if you were in control of legislation what would you say should happen? R: (…) I think that you have to really look into it seriously, whether this is the right thing for the right person because I think there is the risk it might be abused. But with myself, if the legislation was there then it would be nicer for me, so I'm not on my own, which I know I will be because I don't want any of the family here when it happens. I: Why don't you want anyone with you? R: Because I don't want them involved, I don't want them to get in trouble. (…) In other countries, (…) I believe now, you're allowed to choose when you die so you've still got your dignity. This country we don't allow it; (…) if anybody helps us they lock them up, which is wrong. You've taken away that person's dignity and nobody should have the right to do that. We should all have the right to choose when we die and how we die (LD25).

She believes that without a change in UK law she would have to die alone to protect her family from prosecution for their involvement in assisted suicide. She also notes the difference made by personal involvement:

I think the government has got to seriously take it on board, and I realise that it's a very dangerous subject, and it's a very dangerous area, but in the right situation it's needed (…). I think if some of these ministers and politicians who are against euthanasia, I sometimes wonder, if it was their life or their wife or mother, how they'd feel then (LD25).

One argument against euthanasia has been that good palliative care should control symptoms, including pain and depression, and therefore people who consider ending their lives may change their minds when symptoms are properly controlled. Although most patients do have a pain‐free death, however, a few do not. Sometimes analgesia is insufficient without side effects such as sedation, nausea and confusion. 19 Some respondents mentioned uncontrolled pain:

R: Sometimes I am in that much pain that all I want to do is put myself on my bed and go to sleep but I can't sleep because the pain keeps me awake (…). I feel sad and angry that at the dawn of the 21st century they're able to talk on television about taking photographs and soil samples of Mars but they can't give me something that will keep me awake, lucid and to be a useful member of society and kill the pain at the same time (LD09).

This man had searched the internet to find out how to commit suicide. He said that he would not do this without talking it through with his fiancée. He was against euthanasia but for assisted suicide:

R: The people that have motor neurone disease, the people that have MS and are in excruciating pain, a lot worse than the pain that I have, they should be able, in conjunction with their partner [our emphasis], to decide that enough is enough and that they should be able to take their own life (LD09).

The hospice movement exists to deliver outstanding care to dying patients and does so. 20 But research suggests that hospice care does not stem the wishes of a notable minority for euthanasia. Seale and Addington‐Hall 21 interviewed relatives and acquaintances of those who had died and found that respondents for hospice patients were more likely than respondents for those who had not received hospice care to believe that an earlier death would have been better, even after controlling for levels of distress and dependency among those who were dying. The authors suggest that this may be either because hospice care is geared to helping patients express their fears and exercise choice or because people (and their relatives) who accept hospice care may be predisposed to consider the benefits of an earlier death. But other reasons may also contribute. One woman we interviewed said that she would welcome euthanasia or assisted suicide because of what she saw on a shared ward:

R: I spent a month in the hospice, (…) just unfortunately probably nine different ladies came into the ward and died (…). So I have seen what happens at the end and if I could avoid it happening to me I would, simple as that. (…). It was really bad luck because I've seen it first hand whereas in the past I could only guess at I suppose what it could be like at the end, and it's not a pleasant prospect and if I could just take enough of something to put myself to sleep for good, I would happily do it and [um]. If somebody wants, you know wanted to help me, if somebody was brave enough to help me, I'd be grateful to them. It's almost a nonsense we can't decide what to do with our life at the end, isn't it? Why should a judge be able to say, no, I can't kill myself if I want to? (LD02).

In the 1970s Murray Parkes 22 interviewed surviving spouses, and asked how their husbands and wives had felt about other people's deaths in St Christopher's Hospice. Of these, 15 (44%) respondents said that their spouse had realised that a death had occurred but most were apparently not upset. More recently, however, Lawton 23 observed patients in a hospice who had unpleasant symptoms that could not be successfully treated or controlled, and who sometimes requested euthanasia or refused food and drink to hasten death. She noted that other patients in the ward, like the woman just quoted, were very distressed by what they saw and smelt. 23

Another woman with metastatic kidney cancer, whom we interviewed, had seen her mother die a painful, undignified death, and hoped that the law would be changed before she died. She too was worried by the possibility of an incontinent, “unbounded” body: 23

R: It would be a comfort to me to think that when I've come to a point where I'm clearly dying, you know there is no further treatment available for me and if I am in lots of discomfort, I would like to be able to say, “Can you get my kids to come and see me,” and maybe, I don't know, my friend, that's a minister or whatever and say goodbye. And then [er] you know can you just do what has to be done, give me an overdose of morphine or whatever it is. Because actually my Mum was in hospital for about three months before she died. And she had sort of raging osteoporosis having taken lots of steroids for another condition. And she was in terrible pain and she had made a living will actually. [Um] And they had to give her so much morphine in the last few weeks, to be honest she was talking rubbish and coming up with ideas. She told us there was something she wanted to tell me and that she had murdered twelve children. And I said, “Oh Mum, you know that is your mind playing tricks because of the drugs. You haven't murdered anybody”. But she still insisted that she had. And I just wish that she could have gone a month or two earlier before she went through all that indignity that is dying really. [um] And I would feel the same about myself (…). I just think that when you've come to that stage, only you know when that is, how bad that has to be, you don't need to go through the physical indignities of throwing up, being smelly, being incontinent, whatever it might be (LD17).

Others have noted that when death approaches, people still wish to remain physically independent. 13 , 24 A man with progressive multiple sclerosis hated being dependent on his wife and wanted the option of euthanasia. He had run a nursing home and had seen others die in great pain. At times he suffered from excruciating pain himself, and he dreaded cognitive impairment:

R: I have a strong opinion about that [euthanasia]. First of all I believe that it is everybody's right to die as it is their right to live (…). Now I would like to think that if something happens to me [so] that I become completely incapable of enjoying life then I would want someone to do to me what they would do to any ordinary animal. They would if it was a dog and it was suffering and in pain and couldn't be a dog anymore, you would say, “Oh pity”, and you would take the dog to the vet. I would hope that I could be taken to a doctor or the doctor would come to me, or would be allowed to and would be able to just put me to sleep, because I think life is only tolerable if you're alive (…). What I am saying is for me if I have a stroke that leaves me paralysed, leaves me brain dead, then I don't want to live like that, I don't and why should I? (…) I've seen people who you could show a mirror and they would say, “Who's that?” and they don't know who it is, but the soul has gone as far as I'm concerned if that's what happens. I don't want to be like that (LD27).

That some people will feel undervalued and obliged to end their lives to reduce the cost to others is a concern. Two people we interviewed said that they did not want to be a burden to others, an important finding, but this was not the only reason they wanted the option of euthanasia. For example, one woman knew a man with dementia. Having seen his wife struggling to cope, she said she did not want to “lumber” herself with anyone or with any institution. But she was also concerned about pain:

If your usefulness has gone out of life I can't see the point in delaying things. And certainly if you are in a vegetative state there is none, I don't know how anyone can justify it (…). I know one lady who is determined to go on looking after her husband, and in the eleven years since he was diagnosed with Alzheimer's, he got to the stage where he was blind, dumb, and she thought deaf, and she was still pushing food in one end and collecting it the other. He wasn't alive he was existing (…) God forbid that I ever got to that (…). I don't want to lumber myself on anyone, or any institution for that matter (…) but if I ever get to the stage of having the pain which I'd had in the past without my husband and without my children really needing me, (…) I think the plastic bag might just come in use. Back to euthanasia, I would much prefer it if someone would say, “Well, we'll just do it for you calmly and quietly”. I don't see any point in continuing when there is no purpose in life (LD 22).

A woman with motor neurone disease worried about the cost of care, but also strongly favoured euthanasia because she had seen her husband suffer:

R: I said the same when my lovely husband was ill, if I could have given him a tablet I would have done. But that isn't possible (…). If your GP or someone can't do it [assist with suicide or euthanasia] or wouldn't do it, I respect them but I think somewhere along the line someone should help you. What is the point? You're suffering unnecessarily and the cost is, you can end up with the cost, the costs are astronomical and there's no point because there's no end to it. I: In some countries, I think in Scandinavia, it's different, isn't it? R: Yes, and Holland there is. My grandson lives in Holland so I know. I: Why do you think it's happened in those countries and not in ours? R: Because we so drag our feet here, that's why. I mean it's all judgement by people who are able‐bodied and they don't have a clue. I: So if the people who are in your situation could be asked their opinion, do you think a lot of people would think like yourself? R: I don't know, I really don't know. But I'm only speaking for me and I saw my own husband suffer unnecessarily for an end that was inevitable anyway. And to me that is evil or at least cruel (LD34).

Among these interviews with people who were themselves facing death, those who spoke most passionately about the need for a change in the law were those who had also seen others die.

Arguments against a change in UK law

A few people opposed a change in UK law (or were ambivalent), who represent negative cases in the analysis. 25 Apart from three people who appeared to be discussing involuntary euthanasia, one said that people should trust God and that good could come out of suffering, and another was anxious that people might ask for assisted suicide to help carers rather than themselves. Others, who overall were in favour of euthanasia, feared that any new legislation may be misused. For example, a man with oesophageal cancer said that he would welcome euthanasia for himself, but hesitated to recommend it as national policy:

R: I would like an easy death and from that point of view I think I would welcome euthanasia. Having said that I see all the complications of it, and people who are at a stage of illness where they can't speak for themselves, a possibility of somebody wanting to get rid of their relatives, that makes me very nervous, so although on the one hand I would like to see it to help me, I'm very hesitant about it. I: As a national policy. R: As a national policy (…). Yet on the other hand there was um, Dianne [Dianne Pretty, who took her case to the European court] isn't it, with motor neurone disease, and that poor women obviously wanted to die and nobody would do anything about it. It's a conflict, I don't know, I can't deal with it, I don't know how you sort it out (LD21).

Others shared concerns about the potential for abuse, but concluded that each case should be judged on its own merit:

The thing that would concern me very much is the abuse of it [euthanasia]. It could be used in the wrong way, and therefore requires a lot of careful thought (…) I think you've got to judge each case on its own merit actually, and the people involved (LD31).

Our study is important because it draws on accounts of patients who knew that they would probably die soon of either cancer or non‐malignant disease (table 1 ​ 1). ). Most previous qualitative research designed to understand the dying process has been based on the views of patients with cancer or those of patients dying of AIDS. 14 , 26 When examining the views of those with HIV‐1 or AIDS, Lavery et al 26 found that people desired euthanasia or assisted suicide because of disintegration or loss of community. Our participants did not mention loss of community as a reason for desiring euthanasia or assisted suicide, perhaps because they did not have diseases as highly stigmatised as AIDS. But they gave many other reasons for wanting the option of ending their lives. They often had multiple reasons for wanting a change in the law, including the right to choose when to end their own life, pain, anticipated pain, cognitive impairment, fear of indignity, fear of loss of control and concern that they may be a physical or financial burden on others. Some regretted that they may have to die alone if suicide became their only legal option.

Only a few people opposed a change in UK law, mainly it seems because they were discussing involuntary rather than voluntary euthanasia. Some were ambivalent about a change in the law that would allow voluntary euthanasia because they feared that a new law may be misused. It is important, however, to note that this was not a numerically representative sample and that interviews were led by the patient's story, not by a set of questions from the researcher. The appropriate emphasis for the findings is therefore the range of perspectives and the characteristics and experiences of people who held different views and not the numbers of people who were for or against euthanasia.

The method was appropriate to the aim of the study but it had some limitations. The interviewer did not define exactly what she meant by euthanasia when she introduced the subject herself, which led to confusion in some cases. One person, for example, mentioned Harold Shipman, and evidently thought that the interviewer was talking about involuntary euthanasia or murder. Also, some respondents may have had strong views but felt unable to introduce the topic themselves. Although we aimed for a maximum variation sample, we interviewed few manual workers and the two from minority ethnic groups did not discuss the subject. It is extremely hard to recruit patients who are dying for any type of research. Family members may resent precious time and energy being spent on work that will not give a chance of a cure. 27 Health professionals can also be very protective of their patients and may not facilitate recruitment. 28 Seale and Addington‐Hall 13 found that social class and religious denomination did not greatly influence people's views about euthanasia, but they interviewed few people of non‐Christian faiths. If we had interviewed more people from minority groups with other religious views, we may have heard additional arguments. Numbers of people interviewed in qualitative studies are necessarily small; so entire studies may be needed to explore the subject of euthanasia and assisted suicide from the perspective of the various minority ethnic groups in the UK. 29

Most people in our study were interviewed only once. Some of those who expressed strong views, either for or against the option of euthanasia or assisted death, may have changed their views as their illness progressed. Also, the comments some people made about euthanasia or assisted dying, or the lack of comment in other accounts, may have been influenced by a need to project a particular moral stance, by current media debates, or by the palliative care argument that better end of life care would reduce the need for euthanasia.

Of course it is important to provide more resources to help all patients die with dignity in a setting of their choice. 20 But, some reason that even with the best palliative care there may be a case for euthanasia or assisted suicide in certain situations, 30 and that without new legislation, euthanasia and assisted suicide will simply be driven underground. 11

In the UK, the law on euthanasia and assisted suicide certainly needs clarification, and perhaps even change. Our respondents spoke powerfully, some thinking about their own deaths, and others recalling the deaths of other people, which fuelled their criticism of the current UK law. In many parts of the world, the intense controversy about euthanasia and assisted suicide persists. 31 , 32 , 33 We believe that these accounts of ordinary people who are facing death should inform current debate in the UK and elsewhere, but there is still a need for more research that includes patients' views of these important issues.

Acknowledgements

We thank the men and women who contributed the interviews; Audrey Chamberlain, who conducted most of the interviews; those who helped to recruit volunteers; the members of our advisory panel; and The Gatsby Charitable Foundation for funding the work. We also thank Clive Seale, Emmie Arnold, Emily Jackson and John Coggon for valuable comments on an earlier draft of this manuscript. We also thank Cancer Research UK for a personal award to SZ.

i Airedale NHS Trust v Bland (1993) AC 789.

Competing interests: AM and AH are cofounders of DIPEx ( www.dipex.org ) and all authors are on the DIPEx steering group. This does not, however, represent a conflict of interest for this paper.

Ethics approval: Eastern MREC, House No 1, Papworth Hospital NHS Trust, Papworth Everard, Cambridge CB3 8RE, UK, approved the protocol.

Written consent: All the patients quoted in this manuscript gave written consent to use their interviews in publications, education, lectures and broadcasting.

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Psychological Perspectives on Euthanasia and the Terminally Ill: An Australian Psychological Society Discussion Paper

1998, Australian Psychologist

... Attitudes towards Euthanasia A large number of studies have investigated physicians' and nurses' attitudes towards euthanasia - euthanasia being variously defined as passiveeuthanasia, active euthanasia, or physician-assisted suicide. ...

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The Ethical Dilemmas of Euthanasia

June 01, 2010 2 Comments

Discussion of euthanasia often elicits strong emotion, which is not surprising as it involves life and death issues. For over 2000 years it has been a prohibited medical practice. But now?

Euthanasia is legal in the Netherlands, Belgium and Luxembourg. Physician Assisted Suicide (PAS) is legal in Oregon and Washington State in the US. There are serious discussions going on in Montana, Singapore and Spain. In The UK, over 100 Brits have died under the arrangements in Switzerland, and the government is developing guidelines for prosecution of those who assist in such suicides. The Swiss authorities are having a similar debate themselves, with the final outcome far from clear.

In Australia legislation concerning end-of-life issues has been dealt with on a state basis. In 1995 the Northern Territory passed legislation allowing euthanasia, but it was overturned by the Federal Parliament in 1997. Last year a bill was tabled in the Federal Senate trying to reactivate it. Recently bills have been debated in Victoria, Tasmania and South Australia. Legislation for euthanasia has been twice considered and rejected by the NSW parliament. It just keeps coming back. 

Why are we having this debate in Western countries at a time when we have more medical cures than ever before in human history? What is going on?

In this paper I will first discuss the definitions of the terms of the debate. I will then consider arguments for and against euthanasia, before giving a Christian perspective.

Definitions

In the euthanasia debate, inadequate definitions have been a real barrier in attempts to find clear community consensus. It is no secret that many euthanasia advocates have muddied the waters by bracketing euthanasia with other accepted end-of-life practices in order to increase public support. We need to keep our definitions clear so we all know what we’re talking about. 

The word euthanasia is taken from Greek eu thanos , meaning ‘good death’.  However, this is not particularly helpful as both sides claim the advantage of bringing about a good death, and indeed, the question of what constitutes a good death is at the heart of the euthanasia debate. We would all like to see people in our communities dying with dignity and without suffering.  The question is, how do we go about achieving this?

I define euthanasia as: ‘An act where a doctor intentionally ends the life of a person, by the administration of drugs, at that person’s voluntary and competent request, for reasons of compassion’. I prefer to keep the definition narrow, so we can evaluate each end of life scenario individually.

The terms active/ passive, and voluntary/involuntary should be avoided when referring to euthanasia, as they are ambiguous and confusing.   For example, there is no such thing as involuntary euthanasia.  It is a contradiction of terms.  If someone is killed without their consent, even in a medical setting, it is not euthanasia, it is murder.  I will discuss the active/passive distinction in a moment.

I define Physician Assisted Suicide (PAS) as: ‘The situation where a doctor intentionally helps a person to commit suicide by providing drugs for self-administration, at that person’s voluntary and competent request’.  In PAS the doctor is distanced from the act but morally it is no different from euthanasia as the motive, intention and outcome are the same.  As they are similar in moral terms, I will use euthanasia and PAS interchangeably in this paper.

To understand the debate we also need to be clear on what euthanasia is not.  Euthanasia needs to be distinguished from the withdrawal of treatment, and management of symptoms at the end of life.

In discussions of legislation for euthanasia and PAS, the focus population has always been those who do not have long to live. When a patient is in the terminal stages of their illness, a time may come when treatments aimed at cure either no longer work (they are futile) or the burden of side-effects such as nausea and vomiting may be so overwhelming that they cancel out any benefit of treatment.  At this stage the treatment may be not prolonging life so much as prolonging the process of dying.  At this time a decision may be made to stop, or not to start, such a treatment.  The decision is made carefully in full consultation with the patient and their family and it is not euthanasia because the intention is not to kill the patient, but to allow the underlying disease to take its course.  Full supportive care will remain in place so the patient is kept comfortable.

Another situation which if often confused with euthanasia is adequate symptom control in the terminally ill.  In all areas of care we seek direction from the patient as to where we should place our efforts.  Very occasionally in the terminal stages of disease the distressing nature of a patient’s symptoms may require the careful sedation of the patient. The most common indication would be delirium or extreme agitation.  Once again this will be done carefully in consultation with the patient and their family and we will seek to preserve the dignity of the patient.  The doses are titrated to allow regular awakening so that the patient and their loved ones can communicate. It is not euthanasia because the intention is not to kill the patient, but to alleviate their distressing symptoms.

Some people would call this practice of symptom control passive euthanasia because of a myth in the community that use of morphine shortens the life of the patient.  They argue that if we already practice that type of euthanasia, there is no reason not to practice the other type of euthanasia, using lethal injection, which they call active euthanasia.  You see the problem.

But it is all based on a myth, that morphine shortens the life of the patient.  This myth causes lots of problems for palliative care workers.  It’s been around for years, and we don’t seem to be able to squash it.  It makes people scared to use what is an excellent treatment for pain.  Let me state clearly that research has shown that morphine in therapeutic doses does not shorten life.  Indeed, not only does it not shorten life, it may in fact prolong it.  A study in 2005 showed increased survival of patients in a Newcastle hospice on high doses of morphine. [i]

Stopping futile and burdensome treatment and maintaining adequate symptom control are good medical practices at the end of life and should be encouraged in clinically appropriate situations.  When the public has a better understanding of end-of-life care it reduces the call for euthanasia because there is less suffering experienced along with an increased sense of control for the patient.

Arguments for euthanasia

• Euthanasia is a compassionate response to the suffering of the terminally ill which is perceived (often wrongly) to be otherwise unrelievable.

2.Euthanasia is an expression of autonomy – that a competent individual should have the right to make self-governing choices, especially in the face of increasing support for euthanasia in public opinion polls.

• Legalisation is called for as a way to regulate the alleged existing practice of euthanasia in order to provide protections for patients and doctors under the law.

Arguments against euthanasia

• Sanctity of human life forbids it.
• Euthanasia is unnecessary due to the availability of palliative care to relieve suffering in the terminally ill.
• There are negative social consequences of legalising euthanasia.
• There is danger of abuse due to the slippery slope which is created with the legalisation of euthanasia.

Let me unpack these for you.

Responding to suffering

It is true that many people experience pain and suffering when they are dying , and this has led to a situation where too many of us have seen someone die badly.  Perhaps they were in pain, treated without dignity, or experiencing spiritual turmoil.   Maybe this is your experience.

This should not happen, but it still does and is an important factor in the call for the legalisation of euthanasia. It has been the experience of many people campaigning most strongly for the cause. We must do better.

I don’t know how many dying patients I have cared for as a palliative care doctor, but I imagine it must be in the thousands. I would like to assure you that at the end of your life, you will not be faced with just two options – pain and suffering on the one hand, or euthanasia on the other.  There is another option, which explains why euthanasia is increasingly unnecessary: palliative care.

Palliative care is specialised care for dying people, which aims to maximise quality of life, and assist families and carers during and after the death. Its intention is to liberate patients from the discomfort of their symptoms, and neither hastens nor defers death. An old slogan for palliative care was ‘we will help you live until you die’. 

Currently, only a fraction of those people who would benefit from palliative care, receive it.  Why is this?

The main reason is that, although churches established the first hospices in the 19 th century, the modern palliative care movement is relatively new. While students now receive training in pain control, there are many doctors in the community who are not aware of what can be done. The discovery that different types of pain respond to different treatments has revolutionised care of the dying.

Furthermore, there are certain demographic characteristics which reduce access to palliative care in the community - low income, non-urban location, acute care settings and nursing homes, ethnic or indigenous background, very old or very young age, and non-cancer diagnosis. [ii]

The World Health Organisation has developed a pain relief ladder which enables up to 90% patients to be pain-free using a basic approach which all doctors can learn. [iii]   Specialist centres can achieve even higher rates of success.  Not everyone needs to see a specialist or visit a hospice, but all dying patients would benefit from palliative care in some form.

Interestingly, one response to the brief legalisation of euthanasia in Australia was an increased injection of funds into palliative care services by the federal government. Since then, the argument for euthanasia on grounds of unrelieved suffering of dying patients has become much less prominent.  Palliative care in Australia is improving all the time, but we should not be complacent: the most common reason why palliative care services cannot help dying patients is because they are referred too late or not at all.  As the European Association for Palliative Care states in their position statement on euthanasia, our challenge is ‘to transform our care of the suffering and the dying, not to legalise an act which would all too easily substitute for the palliative competence, compassion and community that human beings need during the most difficult moments of their lives’. [iv]

We also need to recognise that suffering is not merely a medical problem but an existential problem which extends beyond physical pain. It is influenced by psychological, cultural and spiritual factors. The physical symptoms can be dealt with but the suffering may well remain. 

It is made worse by the fact that we, as a society, have lost touch with the spiritual concerns surrounding death.  Dying forces us to face the big issues of life – What does it all mean? What are we doing here? Western society is struggling to answer these questions. We are youth-obsessed and death-denying, and don’t know how to die properly anymore. We’re uncomfortable discussing it and we have lost our traditions in the West. I think we could be trained to die by example, but few of us have seen examples. Most members of the public have never seen a corpse and many people have long ignored the spiritual dimension when they face the mystery of death.  They’re unprepared, and it can be scary. 

Furthermore, we are immersed in a culture of comfort where we are more likely to reach for the quick fix than the stiff upper lip.  Christians understand the benefits of suffering, such as the opportunity to grow in perseverance, character and hope (Rom 5:3-4), but the wider community does not share this understanding.  It may be that what people are requesting in the call for legalised euthanasia is not so much a right to die, as the opportunity to avoid the process of dying itself.

In our community the fear of dying is promoted by numerous accounts of pain and misery experienced as life draws to a close.  There seems to be a desire in some people to go from a state of health, straight to a state of being dead, without having to ‘die’ at all.  In a society which has lost touch with the meaning of suffering, there is also, understandably, a loss of the willingness to endure it.

Medicine and protection of life

One aspect of the euthanasia debate that is often ignored is that it expects doctors to perform euthanasia.  I was asked recently whether the doctor uses a sterilised needle when performing euthanasia.  This encapsulates how antithetical euthanasia is to the way medicine is currently practised.  There seems to be an attempt to confer medical legitimation on the ending of life, but what will happen to doctor- patient relationships if patients can’t trust their doctor to always be a protector of life?  Will patients forgo medical care because of fear of euthanasia?

Euthanasia violates codes of medical ethics which have existed since antiquity. The Hippocratic Oath, taken by doctors on graduation since the 5 th century BC, specifically prohibits doctors from helping their patients die. Medical and palliative care associations all over the world are strongly opposed to the legalisation of euthanasia.

Dying as part of life

If we accept dying as a part of life we should all embrace, is there anything good about the dying process?

When a person is dying, he and his family find themselves in a crisis situation.  All the joys and regrets of the past, the demands of the present and fears for the future will be brought together.  Help may be needed to deal with things like guilt, depression and family discord, but in this time of crisis, there is the possibility of resolving old family problems and finding reconciliations which greatly strengthen the family group.  The time between diagnosis of a terminal condition and death is often a time of great personal growth.  I have seen this time and time again. When relatives think back on the last days of their loved one, how much better to remember a time of peace and reconciliation than one of anguish which is violently cut short.  Those at the coal face know very well that patients can and do choose the moment of death as a natural act if good care is available.

Legalising euthanasia

Arguments supporting euthanasia laws presuppose a world of ideal hospitals, doctors, nurses and families. But we don’t live in an ideal world.  We live in a fallen world where humans make mistakes and have selfish motives.  For this reason, legalisation of euthanasia holds a number of risks.

We cannot be sure that euthanasia, once legalised and socially accepted would remain voluntary. Vulnerable and burdensome patients may be subtly pressured to request termination of their lives, even though they don’t really want to.  Consider the difficulty of having a relative in hospital long term, the stress of daily visits – finding a parking space!  And sadly, the prospect of inheritance brings out the worst in a lot of people. These patients aren’t stupid.  They know what a burden they can be on others. Legal euthanasia introduces a factor which should not be present in the environment of a sick person.

With euthanasia legalised, would we remain a caring society ready, in times of financial constraint, to continue to invest money and resources into attempts to improve the care of the terminally ill? Palliative care is expensive and becoming more so as patients survive longer and develop more complex problems. It is a very labour intensive discipline. Public opinion can be influenced once a law is changed.  Is this what we want?  I believe western medicine has progressed as far as it has because we do value all human lives and continue to seek cures for the diseases which afflict us.

Another risk is that doctors may not be able to resist the extension of euthanasia to those who don’t, or can’t, consent to termination of their lives. Proponents of euthanasia will tell you that legal guidelines will prevent this happening. However, the Dutch Government’s Remmelink Report in 1991 [v] found that around one in three euthanasia deaths were without patient knowledge or consent (around 1000 each year). Government reviews showed similar results in 1995 [vi] and again more recently, [vii] despite the fact that there are stringent guidelines in place in Holland. One argument put forward to support euthanasia suggests that we need to regulate what is already taking place illegally. If those doctors performing euthanasia now are unwilling to obey the law, why do we think we could trust them to do so after it is changed?

Lastly, if euthanasia were legalised, would we avoid the intolerable abuses that other civilised countries have slipped into before us?  We say the holocaust could never happen again, but in the Nuremburg trials after WWII it was established that the extermination programmes of the Nazis had their origins in the promotion of mercy killing by German doctors in the 1920s [viii] .  Once you accept that some lives are not worth living, what will happen?

In the Netherlands, euthanasia was legalised in 2002 after 20 years of widespread practice under legal guidelines.  By the time the law had passed, the courts had already legitimized the death of patients who were not terminally ill. [ix] The Dutch are currently debating the need to allow the elderly to be euthanased when they are ‘tired of life’. [x] And early in 2005 a Dutch hospital published their guidelines on how to kill disabled newborns. [xi]   Are these the values we want to pass onto our children?

We ignore the lessons of the Netherlands at our peril. The discrimination, racism and triumph of expediency over justice in our society should warn us against naïve enthusiasm about proposals to decriminalise euthanasia.

Now I would like to look at what I think is the strongest argument for euthanasia – that of autonomy, the principle of self-determination, expressed here as the right of the individual to choose the timing and manner of their own death.

It is undeniable that after we have done all we can in palliative care and made sure the patient is mentally competent, there will be a small number of patients who still suffer and who request euthanasia. It is unlikely to be because of pain. There is little good research into why people actually request euthanasia, but the studies that have been done show the most common reasons are not related to physical factors but to psychosocial and existential factors—things like the fear of death and loss of control, fear of becoming a burden and of loss of dignity, fear of the future. [xii]   Patient desires are known to fluctuate over time, [xiii] but whatever the reason, euthanasia is what these patients want.  What are we to do with this small group of people who rationally request that their lives be terminated after all our attempts to care for them are still not enough?

There are a few things you need to check.  Suicidal thoughts are a symptom of depression. The first step when a patient is requesting euthanasia is to assess—and where appropriate treat—the patient for depression. Research shows that sometimes when patients expressed their fears at the end of life it was misinterpreted by healthcare providers as a request for euthanasia when it was really intended to be a cry for help. [xiv]

The incidence of depression in cancer patients has been measured as high as 45%. [xv] There are reports that 1 in 6 of patients who requested a lethal prescription in Oregon 2004-2006 were clinically depressed but not referred for counselling, (as the law requires). [xvi]  In any other group, a request for death would alert a doctor for urgent psychiatric review: why is this group of patients being treated differently?

Another thing to check is whether the patient aware of the rights they already have in terms of refusing life-prolonging treatment. I find many patients are not aware that this is an ethical and legal option.  No mentally competent patient has to undergo futile, burdensome or life-prolonging treatment if they don’t want to.  It can be hard as a doctor to accept this decision, but knowledge of the right to refuse treatment would ease many of the concerns felt by those who fear being kept alive by artificial means against their wishes.

Finally, if the suffering the patients wish to avoid is due to metaphysical or spiritual concerns, then it is not only patient autonomy, but also the social, psychological, religious and cultural concerns that need to be addressed.

But given that some people do still request euthanasia, how do we proceed?

The public debate is about whether we should change the law to allow euthanasia, not about whether euthanasia is right or wrong for individual cases.  Euthanasia is going to be ethically appropriate for some individuals whose morality recognizes autonomy as a priority. If you think that this world is all there is and living has become unbearable, the choice to end it all makes sense.

So from the community perspective there is a tension here – between those people who rationally request euthanasia and the vulnerable people who would be at risk of being killed against their will, as is happening now in the Netherlands. Autonomy – the right of the individual to determine the timing and manner of their own death – versus security – the right to protection and security as expressed in the values of the larger society.  How are we to resolve this? Is there a right to die that the government should support?

While as Christians we would say our bodies are not our own, legally, a man is free to end his life when he chooses.  But that does not mean he has a right to do so, and he certainly does not have the right to compel someone else to kill him.

Many people say that when they are facing death they would want to be able to request euthanasia.  A news poll from October last year commissioned by a Euthanasia support group found 85% of Australians in favour of euthanasia [xvii] (though I have questions about what exactly was asked and how well defined the questions were). Even if we accept that large numbers of people would like the option to request euthanasia though, the proportion of people actually requesting it when facing death is very different.  A study done in Sydney has shown that only 2.8% of patients in a palliative care service requested euthanasia when first seen. After palliative care commenced, this number was reduced to less than 1% of those referred. [xviii] I am not surprised by these low numbers – in my experience, those facing death are more likely to want more time, not less.

We do need to respect autonomy, but as one of many relevant factors, not as a preeminent stand-alone factor.  People are more than autonomous entities. The argument from autonomy is based on a view of human beings which is too shallow, and devoid of the inevitable social context.

Moreover, in practice, some will lose autonomy whichever legal path is chosen: if euthanasia is legalised, precedent shows that legally unprotected persons too often have their autonomy to choose life undermined; if it remains illegal, Persons genuinely desiring euthanasia lose their autonomy to choose death. Either the right of the vulnerable to protection, or the right of the sufferer to end their suffering is compromised. Surely it is the responsibility of our society to care for those who cannot care for themselves.

In view of the very small number of people demanding autonomy, I believe that we must err on the side of justice and the responsibility of our society to care for those who cannot care for themselves. Those demanding euthanasia will not have what they want and that is terrible for them, but we must protect the frail and vulnerable who want to live. This is the conclusion of government-sponsored enquiries in England, Canada, the USA and Australia. [xix]

Proponents of euthanasia bills will reject this reasoning . They keep saying that it only affects patients and their carers, but this is just not true.  It can’t be.  Legalisation of euthanasia must affect society as a whole because in legalising euthanasia we are changing one of the most basic tenets of our society.  That is, that we do not kill each other, even for reasons of mercy and compassion.

Christian ethical response

Ethical choices involve motivation, action and consequences. So far the arguments we have looked at for and against euthanasia judge right and wrong on the basis of the consequences believed to ensue if euthanasia were legalised. Christians have another moral compass: the Bible. The Bible teaches that in ethical decision-making, motivations, actions and consequences all matter. [xx]

The most common motivation for those on both sides of the euthanasia debate is compassion for those who suffer. Motivation prompts us to act but does not inform the content of our actions, so common motivation may lead to different actions. Euthanasia is an inappropriate response for Christians because there are some actions we must never do, whatever the motivation or consequences. The Bible is very clear on euthanasia: the intentional killing of an innocent human being is wrong (Ex 20:16).

In addition, Christians recognise that all humans are made in the image of God and thus have value that is not dependent on our state of health or abilities. It also means that we are creatures, and so our autonomy will operate within the parameters given to us by our creator, God. Our bodies are not our own (1 Cor 6:19-20).

These arguments against euthanasia may seem inadequate in the face of the suffering we have identified as central to the debate.  God calls us to be salt and light – salt to preserve the good in the world, light to illuminate the truth as we influence the cultural drift. What does it mean to say no to euthanasia? What do we have to say to those who suffer?

We say that life is a gift from God, and acknowledge that sometimes it takes less courage to die than to continue living. We say that while we do not always understand why suffering occurs, we are willing to walk with them because God in his mercy created us to carry each other’s burdens, and when we are suffering, we are comforted by human presence. This is the challenge for the church: to stay with the dying.

When Job’s friends first saw him, they sat on the ground with him for seven days and seven nights.  No-one said a word to him, because they saw how great his suffering was.  And as Job learnt, it is only God who can give meaning to our suffering.

The euthanasia debate is an expression of a society that is struggling to find meaning in life, and so finds no meaning in death.  It is desperately trying to control death any way it can.  But the true answer to our plight as we struggle on in this broken, fallen world is not legalisation of euthanasia but the good news that Jesus came to give us new life, new bodies, better bodies in the world to come (1 Cor 15:44). In the next world there will be no more death or mourning or crying or pain (Rev 21:4).  Euthanasia is not the solution to suffering.  In the end, the only thing that can wipe our tears from our eyes is the hand of God.

E N D N O T E S

[i] P. D. Good et al ., (2005). Effects of opioids and sedatives on survival in an Australian inpatient palliative care population. Intern Med J , Vol.35(9) , pp512–517.

[ii] Palliative Care Australia. (2009). EOL, Vol.1(2).  

[iii] World Health Organization. (1996). Cancer pain relief (2nd ed.). (Geneva: WHO, 1996).

[iv] F. D. J. Roy & C. H. Rapin et al ., (1994). Regarding euthanasia. European Journal of Palliative Care, Vol.1(1), pp1-4.

[v] Medische Beslissingen Rond Het Levenseinde – Rapport van de Commissie Onderzoek Medische Praktijk insake Euthanasie. (The Hague, The Netherlands: Sdu Uitgeverij, 1991).

[vi] H. Jochemsen & J. Keown, ‘ Voluntary euthanasia under control? Further empirical evidence from The Netherlands’. Journal of Medical Ethics , Vol. 25(1), 1999, pp 16 - 21 .

[vii] A. van der Heide et al ., ‘End-of-life practices in the Netherlands under the Euthanasia Act’. The New England Journal of Medicine , Vol.356 (19), 2007, pp1957-65.

[viii] R. J. Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide. (New York: Basic Books, 1986).

[ix] Y. Sheldon, Dutch argue that mental torment justifies euthanasia. BMJ , Vol.308, 1994, pp431-432.

[x] Dutch News.nl. 09-02-2010. Tired of life? Group calls for assisted suicide.

[xi] P. Verhagen & P. J. Sauer, The Groningen Protocol — Euthanasia in Severely Ill Newborns. NEJM, Vol.352(10),  2005, pp959-962.

[xii] P. Hudson et al ., Desire for hastened death in patients with advanced disease and the evidence base of clinical guildelines: a systematic review. Palliative Medicine , Vol.20, 2006, pp693-701.

[xiii] H. Chochinov et al ., Will to live in the terminally ill. Lancet , Vol.354, 1999, pp 816–19.

[xiv] Hudson, op. cit.  p697.

[xv] S. D. Passik, M. V. McDonald, W. M. Dugan Jr, S. Edgerton  & A. J. Roth, Depression in Cancer Patients: Recognition and Treatment. Medscape Psychiatry & Mental Health eJournal, Vol.2(3), 1997.

[xvi] L. Ganzini, E. R. Goy & S. K. Dobscha, Prevalence of depression and anxiety in patients requesting physicians’ aid in dying: cross sectional survey.   BMJ, Vol.337, 2008,  p1682.

[xvii] News poll (2009) Voluntary Euthanasia Study. Prepared for Dying with Dignity NSW. Available at: http://www.dwdv.org.au/DOCS/Newspollsurvey2009.pdf   (accessed March 3, 2010).

[xviii] P. A. Glare, The euthanasia controversy. Decision-making in extreme cases. MJA, Vol.163 , 1995, p558.

[xix] U K Select Committee on Medical Ethics, House of Lords. (1994). (Unanimous); New York State Task Force on Life and the Law, Euthanasia and Assisted Suicide in the Medical Context, ( 1994). (Unanimous); Senate of Canada, (1995) Of Life and Death ; Community Development Committee, Parliament of Tasmania, The Need for Legislation on Voluntary Euthanasia, ( 1998). (Unanimous);

Social Development Committee, Parliament of South Australia. Report of the Inquiry into the Voluntary Euthanasia Bill 1996 . (1999).

[xx] E.g. Matt 5-7; Rom 3:8.

2 Responses

October 18, 2017

Yes, the oldest surviving code of medical ethics, the Hippocratic Oath (500 BC) says ‘Neither will I administer a poison to anybody when asked to do so, nor will I suggest such a course.’ In more modern times, the World Medical Association states ‘Euthanasia, that is the act of deliberately ending the life of a patient, even at the patient’s own request or at the request of close relatives, is unethical’ (WMA Resolution on Euthanasia 2013).

Isimar Zorrilla

September 29, 2017

Does euthanasia by any means go against any any of points established in the medical code of ethics?

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Peruvian woman dies by euthanasia after years-long fight for 'dignified death'

LIMA (Reuters) - A Peruvian woman suffering from a degenerative illness has died by euthanasia after a lengthy court battle ended in a landmark ruling allowing her to end her life with medical assistance, her lawyer said on Monday.

Ana Estrada, 47, had lived with a rare incurable condition called polymyositis, which causes muscle weakness, for the past three decades. She was bed-ridden and required a ventilator to breathe.

She died on Sunday, her lawyer Josefina Miro Quesada said on X.

Estrada, a psychologist, went to court in 2016 to fight for access to euthanasia, illegal in Peru. In 2022, the Latin American nation's Supreme Court confirmed a ruling that gave Estrada an exemption to end her life.

"Ana has left us grateful to all the people who helped give her a voice, who were with her through this fight and who supported her decision unconditionally, with love," Miro Quesada said.

Euthanasia is illegal in most countries including Peru, a majority Roman Catholic nation. In Latin America, Colombia, Ecuador and Cuba have allowed the practice under certain conditions.

In an interview with Reuters after her court win, Estrada said she hoped her case would set legal precedent for the right to assisted suicide. Under Peruvian law, assisting someone's suicide and killing a terminally ill patient are punishable with prison time.

While the Supreme Court ruling did not legalize assisted dying, it exempted the doctor who supplied the drug to end Estrada's life from any punishment.

"There will come a time when I will no longer be able to write, or express myself," Estrada said at the time. "My body fails, but my mind and spirit are happy. I want the last moments of my life to be just like this."

(Reporting by Marco Aquino; Writing by Kylie Madry; Editing by Ros Russell)

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Prime Minister Anthony Albanese responded Tuesday by describing Musk as an “arrogant billionaire” who considered himself above the law and was out of touch with the public.

X Corp., the tech company rebranded in 2023 by Musk after he bought Twitter, announced last week it would fight in court Australian orders to take down posts relating to a knife attack on Bishop Mar Mari Emmanuel in an Assyrian Orthodox church as a service was being streamed online on April 15.

The material was geoblocked from Australia but available elsewhere.

But the regulator that made the orders, Australia’s eSafety Commission, which describes itself as the world’s first government agency dedicated to keeping people safer online, successfully applied to the Federal Court in Sydney for a temporary global ban on sharing the video of the bishop being stabbed.

In an after-hours hearing Monday, Justice Geoffrey Kennett suppressed the footage from all X users until Wednesday, when an application for a permanent ban will be heard.

Hours later, Musk posted on his personal X account a cartoon that depicted a fork in a road with one path leading to “free speech” and “truth” and the other to “censorship” and “propaganda.”

Musk cited Albanese telling reporters Monday that other social media platforms had largely complied with the regulator’s orders to take violent content down.

“I’d like to take a moment to thank the PM for informing the public that this platform is the only truthful one,” Musk posted.

Albanese berated Musk in several television interviews Tuesday.

“We’ll do what’s necessary to take on this arrogant billionaire who thinks he’s above the law, but also above common decency,” Albanese told Australian Broadcasting Corp. “The idea that someone would go to court for the right to put up violent content on a platform shows how out of touch Mr. Musk is. Social media needs to have social responsibility with it."

Albanese told Sky News, “This is a bloke who’s chosen ego and showing violence over common sense.”

“This isn’t about censorship. It’s about common sense and common decency. And Elon Musk should show some,” Albanese told Seven Network.

The regulator’s lawyer, Christopher Tran, had argued Monday in court that geoblocking Australia did not meet the definition of removal of the footage under Australian law.

Tran said the footage was a “graphic and violent video” that would cause “irreparable harm if it’s continuing to circulate.”

X’s lawyer, Marcus Hoyne, said he was unable to get instructions from his San Francisco-based client because it was early Monday morning in the United States.

X did not immediately respond Tuesday when asked if and how the company had complied with the court order.

Musk has described eSafety Commissioner Julie Inman Grant as the “Australian censorship commissar.”

Albanese said on Monday that social media posts, misinformation and dissemination of violent images had exacerbated suffering from the church attack, which the two clerics survived, as well as a knife attack at a Sydney shopping mall two days earlier that killed six people.

X's Global Government Affairs team said Saturday that Inman Grant ordered it to remove some posts that commented on the church attack, but it said the posts did not violate X’s rules on violent speech.

X said the Australian regulator had demanded the platform “globally withhold these posts or face a daily fine of $785,000.”

“X believes that eSafety’s order was not within the scope of Australian law and we complied with the directive pending a legal challenge,” the Global Government Affairs account said. “While X respects the right of a country to enforce its laws within its jurisdiction, the eSafety Commissioner does not have the authority to dictate what content X’s users can see globally."

“We will robustly challenge this unlawful and dangerous approach in court,” it added.

The live feed of the church attack and social media posts that followed attracted a crowd of 2,000 people and fueled a riot against police, who barricaded the young suspected attacker inside the place of worship.

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