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More Just In. Back to top. Although the law in Australia no longer criminalises suicide or attempted suicide, assisting suicide is a crime in all Australian states and territories:.
Note that when the Northern Territory first enacted active voluntary euthanasia legislation in described in detail in the next section physician-assisted suicide was legal in some circumstances. While the criminal law comprehensively and largely consistently regulates this issue, the use of mitigation mechanisms reveal different policy considerations being employed in this context.
As of , no doctor had been prosecuted for murder in Australia for performing active voluntary euthanasia. These include the exercise of prosecutorial discretion, acquittals either by the judge or the jury or findings of guilt on a lesser charge, lenient sentencing by the courts, favourable parole determinations, and the exercise of executive leniency.
As with the second scenario above, criminal law comprehensively regulates this practice, yet available mechanisms have been used to temper the application of these laws and to mitigate outcomes. Against the backdrop of the criminal justice system grappling to find a satisfactory response to these situations, legislation has been proposed in Australia to clarify the regulation of, and make consistent, active voluntary euthanasia practices.
These legislative schemes are summarised below. A number of states and territories have made attempts to legalise active voluntary euthanasia. To date only the Northern Territory has been successful in enacting legislation the Act having been subsequently constitutionally overridden by the Commonwealth. The key features of the Northern Territory Act are summarised below. Also summarised is the proposed Commonwealth scheme which attempts to introduce a federal regime to regulate active voluntary euthanasia.
Being a federal scheme, issues are raised relating to the constitutional power the Commonwealth possesses to enact such legislation, which are also discussed. The Rights of the Terminally Ill Act NT NT Act Act set out a statutory regime under which physician-assisted suicide and active voluntary suicide were permitted without violating the criminal or any other applicable law.
A doctor who complied with the legislative regime and assisted in euthanasia was immune from legal and professional disciplinary action provided the assistance was undertaken in good faith and without negligence. The Commonwealth Parliament has the power under section of the Australian Constitution to enact its own legislation to override the NT Act.
The key features largely mirror the regime proposed under the NT Act the detail of which will not be repeated here. In summary, the objectives of the Draft Bill were to recognise the right of a mentally competent adult who is suffering intolerably from a terminal illness to request a medical practitioner to provide medical services to the person to end their life. Key provisions set out the ability to make a request and the pre-conditions to be met in accessing dying with dignity medical services.
The Senate Inquiry also considered possible issues in relation to the constitutionality of the Draft Bill, specifically the power of the Commonwealth Parliament to legislate for euthanasia.
Four constitutional heads of power have been referred to in the Draft Bill and will be considered in turn. Contrasting views were submitted to the Senate Inquiry on whether euthanasia would be covered under this head of power. A number of arguments were mounted against the use of this head of power to support the Draft Bill. This included that there was no requirement in the Bill that the medical practitioner provide the service on behalf of a constitutional corporation. Accordingly, if the Bill is enacted but later found to be unconstitutional, medical practitioners may face the prospect of homicide charges despite fully complying with the provisions of the Bill.
It seems on balance that a relevant constitutional head of power most likely the medical services power may be relied on should Parliament decide to proceed with enacting a federal active voluntary euthanasia regime.
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.
With the passing of the Termination of Life on Request and Assisted Suicide Review Procedures Act Neth , [] the Netherlands became the first country in the world to legalise euthanasia. Belgium became the second EU country to legalise euthanasia with the enactment of the Belgium Act on Euthanasia 28 May Luxembourg became the third European country to legalise euthanasia [] with the passing of The Law of 16 March on Euthanasia and Assisted Suicide Lux.
Article of the Swiss Criminal Code 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. Active euthanasia remains illegal in most of the United States. Assisted suicide is legal in the states of Oregon, Washington, Vermont and Montana, [] with legislation passed in both Oregon and Washington.
On 6 February the Supreme Court of Canada found that the prohibition on physician-assisted death in place in Canada in ss 14 and 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. 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 the Supreme Court granted the Canadian governments a further 4 months to make any law reform. The declaration simply renders the criminal prohibition invalid. The request for medical aid in dying must be signed off by two physicians.
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. Currently legislative provisions on the administering of painkillers that hasten death are inconsistently regulated across states and territories.
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 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.
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 second sentence of article 6 1 imposes a positive obligation on States to provide legal protection of the right to life. The Committee stated that:. 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.
It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. When the Netherlands came up for review again by the Human Rights Committee in , the Committee again expressed concern about its euthanasia law, noting:. In its most recent decision regarding end of life issues, Lambert and Others v France , [] 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. 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.
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. Third, on the consequences: I identified, perhaps somewhat elliptically, the consequences that this regime of radical autonomy could have for the disabled.
For the poor, for people whose lives are, in the views of many of us, hardly worth living, well, you can be sure that when there are budget pressures on doctors and you need to get your report on emptying beds, you could have all sorts of very dangerous incentives. Now, there is not a single conservative approach to issues like this. I know there are libertarians who are going to be much more aligned with your view.
But the strand of conservatism that I would promote is one that recognizes that we, as a society, have obligations to each other. I hate doing that. I am a terrible predictor of how eight or nine very smart people are going to frame a question. I appreciate the question, and I tried to do that in my opening by laying out the different ways to frame it. So I think that will be an interesting tension to watch. There is not a general constitutional right to hasten your death.
But who knows. It seems to me that there is a good shot for a lopsided majority for the Department of Justice, but it seems to me possible too that it could be a very closely divided case. You briefly touched on the Tenth Amendment and Commerce Clause issues, and one of the principal tenets of the Federalist Society and Justice Scalia is that you definitely have those spheres of influence.
And when the Supreme Court struck down Lopez and also Morrison , the Violence against Women Act and the Gun-Free School Zones Act, they basically said that you have to look at whether the specific activity is having that substantial impact on interstate commerce.
When a doctor is prescribing this end-of-life medication — as opposed to just doctors dealing with controlled substances — how does that specific activity have a significant impact on interstate commerce if you just have 1,, 10,, 20, seniors who are asking their doctors for that prescription for additional morphine to basically end their breathing or whatever the prescription is — where is the substantial impact on interstate commerce?
Raich , which presented a much tougher Commerce Clause question than we have here. In that case, and anyone here who has a better understanding of it can correct me if I misspeak, but the court held , with Justice Scalia incidentally in the majority, that the Commerce Clause enabled the federal government to reach homegrown marijuana for personal consumption. Now, that is basically about as close as you could get to Wickard v. Fillburn , I think, in the Controlled Substances Act context.
This case is far removed from that. This is, again for the reasons I just mentioned, the drugs moving in interstate commerce, the doctors who have voluntarily enlisted to become part of this scheme. In some cultures it is culturally acceptable, if not preached, I guess, that suicide is acceptable and methods of suicide are acceptable. For instance in Southeast Asian cultures, suicide is accepted. Would you care to comment on how culture figures into this?
I am certain that the desire to call it suicide is a results-oriented approach. But for people who are terminally ill and have gone through the hoops that Oregon puts them through — two doctors, a psychiatrist, a waiting period and taking the dosage yourself — that is a categorically different question than the depression, the pressure, the mental imbalance, the fear of coming out, all of the reasons that people are found to commit suicide.
It is categorically different, and it is not suicide. Oregon is the only state in the country to — in my opinion — step up to the plate and provide a transparent, regulated regime for how these decisions are made.
You have got 49 states, the District of Columbia, Puerto Rico, Guam, the Mariana Islands and some other territories I may not remember, where every single day, the identical set of decisions is being made by families, by hospice care workers, by registered nurses, by doctors, by HMOs, if you are worried about them.
The overwhelming majority of Americans die. And each of us is faced with the identical issues that happen in Oregon. And if you were worried about those decisions, I would encourage you to have DEA agents and police officers and investigative analysts, and an entire administrative law apparatus in every hospital room, hospice, nursing home and family room in this country because Americans are faced with this decision. So that is the cultural answer. Everybody needs to get a little more realistic about the role that our dying plays in our life.
And I have learned in my three years of representing this movement that, while I thought sex was the number one thing that we were disinclined to talk publicly and honestly about, it turns out that death is the number one thing. We do not have rational conversations among adults about what our options are, how we die, who is going to do the living will, what is the medical power of attorney.
Grownups — and I mean scores of them — grownups who have lived independent lives cannot have a conversation with their adult children about what their wishes are. My jaw drops. And she starts crying. So I have learned a lot. And I have encouraged other people to have more honest conversations about death. But the point that you have allowed me to go on and on about is the role of culture. That is, I think there is an unwillingness to face the basic fact of death and to discuss it.
I guess my daughter is a little different than yours, at least one of mine is. Well, you could say the same thing about evil. You could say the same thing about child abuse. I do need to go back to the definitional question of suicide.
Raben is using. I will point out, though, that Oregon, in its Supreme Court brief, essentially concedes the point and tries to dance around it. It is accurate in that sense. I think there are all sorts of extraordinary care that of course you should be permitted to decline.
We can have an interesting public policy argument on that. I was going toward your framing of killing or a suicide as participating in this decision. My immediate point is the definition of suicide — and we can then get to the question of whether the physicians are assisting or not. And for the reasons I have referred to before, I think there is ample support for that proposition.
I would just like to ask whether you think that the Controlled Substances Act, which is really at issue here, is actually the proper place for what ultimately is a discussion about a broader philosophical topic.
And I was intrigued by your first example of the question of, well, what if cocaine was being used for colds? Does the state have the ability to make that decision regardless of the federal government?
And what I thought was interesting about that is how far can that go? I would certainly like to hear your opinion on that, but I assume there would be a little more problem with eliminating palliative care. The medical marijuana I can kind of see. This is a problem that the drugs are being used for something in a medical context that seems a little out of sorts with traditional medicine.
I guess the real question is, is the Controlled Substances Act really the place that we should be making those policy decisions, or should the act be left for recreational drug division and this issue be left for the Congress to decide? I think we find ourselves in agreement on a lot of this. There are all sorts of issues involving end-of-life care, end-of-life decisions that cannot possibly be sensibly addressed through the Controlled Substances Act.
So we certainly should not use the act as the primary vehicle for addressing these questions. Now, I do think that the Controlled Substances Act necessarily has impact on some of these questions. And I think, as I made clear, that its application in this context is consistent with federal law. Obviously Congress can address whether the Controlled Substances Act should be modified in certain respects.
And I suppose some folks will try to do that if the decision comes down in a way that upholds the Department of Justice. But most of the issues here need to be decided outside a governmental framework. I think there are basic lines the government can draw, and I have outlined some of them. And I certainly have no illusions that government can or should dictate a series of rules to apply in a broad range of circumstances. But that is still enough that the old category is going to influence how they see this case, because unlike perhaps abortion, I think that they all have friends and relatives — and maybe even their own situation — that cause them to think very seriously about this.
So I think they will be realistic in discussing this topic. Nonetheless, I think the burden is on Mr. Raben because I think he is the one who wants to, as a matter of practical necessity, change the status quo. On the other hand, this changes the status quo by putting an active participant in the mix. I lived in Oregon for quite a while, and so I recognize it tends to be out on the fringe and wants to push issues that are useful to discuss.
I think people are going to want to know why they chose six months. That is sort of an odd rule. How is that a rational scheme? I would have been happier if they took a time period that hospice will generally accept, like two months before or six weeks — whatever the hospice —. The ones with the Medicare will provide six months. The second thing that I think the court is going to ask you has to do with the scheme being different. The perpetrators are often family members. Still others may undergo assisted suicide because they lack good health care, or in-home support, and are terrified about going to a nursing home.
A case in point, Oregon resident Kate Cheney discussed below appears to have been strongly motivated to take her life by fear of the nursing home where she had just spent an unhappy week. While the proponents of legalization argue that it would guarantee choice, assisted suicide would actually result in deaths due to a lack of choice.
Real choice would require adequate home and community-based long-term care; universal health insurance; housing that is available, accessible, and affordable—a full range of social supports currently unavailable to many, if not most people. In a perverse twist, widespread acceptance of assisted suicide is likely to reduce pressure on society to provide these very kinds of support services, thus reducing genuine options even further.
The Oregon and Washington laws are based on the faulty assumption that it is possible to make a clear distinction between those who are terminally ill with six months to live, and everyone else. Everyone else is supposedly protected and not eligible for assisted suicide.
But it is extremely common for medical prognoses of a short life expectancy to be wrong. With every disease other than cancer, prediction is unreliable. Thus, the potential reach of assisted suicide is extremely broad, far beyond the supposedly narrow group its proponents claim. The affected group could include many people who may be mistakenly diagnosed as terminal but who have many meaningful years of life ahead of them. This poses considerable danger to people with new or progressive disabilities or diseases, who may often be misdiagnosed as terminally ill but who in many cases outlive these prognoses by years or even decades.
Research overwhelmingly shows that people with new disabilities frequently go through initial despondency and suicidal feelings, but later adapt well and find great satisfaction in our lives.
People with new diagnoses of terminal illness appear to go through similar stages. Richard Radtke, a well-known retired academic oceanographer in Hawaii, provides one such example. Radtke has had a very disabling form of muscular sclerosis for over 25 years. In the period after his diagnosis, doctors often classified him as terminally ill. He experienced severe depression for two years. Had assisted suicide been legal, he acknowledges that he would have chosen it and died long ago. Today, still with an extremely limiting disability, he has retired from a successful academic career, is a happily married father, remains the president of a charitable foundation, and is grateful for the length and varied experiences of his life.
For example, physicians are not permitted to write a lethal prescription under a set of inappropriate conditions defined in the law, such as when a patient is incompetent or when a request is involuntary. Many other patients seeking assisted suicide have … had to ask more than one physician for the lethal prescription.
There is no way to know if physicians declined due to personal convictions, because they believed the patients were not terminally ill or because they determined that the patients had impaired judgment.
During the first three years of legal assisted suicide in Oregon, reports indicated that, in 59 percent of cases, patients had to ask two or more physicians before receiving the lethal drugs. After the third year, official reports stopped including this category. Patients or their families can doctor shop until a willing physician is found. And, since non-prescribing physicians are not interviewed for official state reports, there is no way to know why they refused to lethally prescribe.
This law [referring to a California bill patterned on the Oregon law] would allow marginal physicians, say two Botox dermatologists, to diversify into end-of-life prescribing.
This is a real concern as a study done a few years ago indicated that the more experience physicians have in end-of-life care the more they disapprove of PAS. Conversely, it is those that rarely care for the dying that tend to support it. The first person reported to die under Oregon law, whose name was not revealed, represents an example of doctor shopping. Her doctor and a second physician refused her a lethal prescription.
Another example is Kate Cheney, an year-old woman. In the Oregon law, physicians are required to discuss alternatives to assisted suicide as another safeguard. However, there is no requirement that these alternatives actually be made available to patients, or even that the professional who discusses them fully understands them. Further, her case demonstrates the shocking laxness with which safeguards in Oregon are being followed.
Cheney decided to take the lethal medication immediately after spending a week in a nursing home in order to give her family a break from caregiving. The chronology shows that Cheney felt she had only three choices: burdening her family, the hell of a nursing home, or death. As Herbert Hendin, M. It stated, in part:.
What in-home services was Ms. Cheney receiving? How is it that Ms. Cheney had to spend a week in a nursing home to give her family respite from caregiving? Did Ms. Cheney and her family know of other respite options?
If not, who failed to tell them? Or did the family choose the nursing home respite option with the knowledge of other alternatives an even more disturbing possibility? In what depth were these issues explored? In this context, family relationships are complex, and the emotional dynamics could not realistically be uncovered in a brief consultation.
It appears from the newspaper account, as well as your response to Dr. Hamilton, that these issues were not meaningfully addressed.
Cheney appears to have been given the message that she had three choices—to be a burden on family, to go to a nursing home, or to die. Cheney felt she had only one option. How is this a voluntary and uncoerced decision based on informed consent?
There is one foolproof safeguard in the Oregon and Washington laws. Unfortunately, it is for physicians and other health care providers rather than for patients—the good faith standard.
This provision holds that no person will be subject to any form of legal liability, whether civil or criminal, if they act in good faith.
Moreover, this particular provision renders all other alleged safeguards effectively unenforceable. Even more alarming, for all other medical procedures, doctors are liable under a much stronger legal standard, that of negligence.
Yet even if negligent, practitioners of assisted suicide will not be found to have violated the law as long as they practice in good faith. A concern with physician protection, rather than patient protection, pervades the Oregon experience. Good faith is a troublesome, subjective standard.
But if the intent of the law is to provide protection for patients, a negligence standard would be more appropriate. The drive to legalize assisted suicide comes from anecdotes of painful, uncomfortable deaths. Yet available data shows that when assisted suicide is legal, those who use it are not typically acting based on current pain or other discomfort. Oregon in fact has proven that the only symptom driving requests for [assisted suicide] is psychological distress.
Clearly the standard of care for depression and demoralization is not a lethal overdose of barbiturates. How absurd that it would be met with a lethal prescription. Such an act violates professional standards of palliative care as much as if I were presented with a suicidal patient and handed her a gun or drove her to the Golden Gate Bridge. What this legislation neglects is the fact that advances in palliative medicine have made it possible to relieve … symptoms in virtually all dying patients.
The argument that five to ten percent of dying patients experience intractable symptoms relies on outdated data. Of course, the victims of the Oregon law were not imminently dying or suffering intractable pain; they were suffering from depression and despair. Those patients who are truly at the end-of-life need access to excellent palliative and hospice care, not a lethal overdose. Where assisted suicide is legal, the depression remains undiagnosed, and the only treatment consists of a lethal prescription.
The danger assisted suicide raises for people with depression and psychiatric disabilities has been very real in Oregon, and this is a key way that assisted suicide harms people with disabilities. Gregory Hamilton, M.
Over time, serious abuses of the Oregon law exemplified by the cases of Michael Freeland and Kate Cheney, discussed above, have come to light. The example of Michael Freeland, as well as those that follow, offer an indication of the serious problems that have beset people with depression and psychiatric disabilities since the Oregon law went into effect.
In the Lucas case, we have no way of knowing if Joan Lucas was seriously depressed or if the doctor or psychologist was disposed to proceed even if she were. Even more troubling is that OPHD does not seem to want to know about the psychiatric status of patients requesting assisted suicide. Under the current monitoring system, OPHD collects no information from psychiatrists who did not find patients to be competent and has no direct communication with psychiatrists or psychologists who did.
Its monitoring reflects a lack of concern with the welfare of depressed patients. The Oregon law does not require … a psychiatric evaluation. Only if the doctor intending to write the prescription, or the consultant, believes that the patient has seriously impaired judgment due to a mental disorder is there any requirement for referral to a psychiatrist.
Thus, the law provides no effective protection for the mentally ill. Only six percent of Oregon psychiatrists are confident they can diagnose depression after one visit, [66] yet the Oregon and Washington State definitions of a psychiatric consultation permit one visit only. Psychiatric evaluation of individuals who die from assisted suicide dropped from 31 percent in to a mere five percent in — Yet Hendin and Foley described an Oregon example of what can happen when psychiatric consultation is not provided:.
Proponents of assisted suicide may argue that this event does not constitute an assisted suicide abuse, because the woman did not die from lethal drugs provided under the Oregon law. But her depression may well have been treatable by a medical provider seeking to help her. A series of problems renders any conclusions based on the data to be critically flawed. As Hendin and Foley observe, OPHD could correct this glaring limitation by gathering information from doctors who, for whatever reason, said no; from any psychiatrists who may have evaluated these patients, regardless of the results; and from nurses, social workers, or family members who cared for the deceased.
Without this data, no one can know how many annual requests for assisted suicide are made, why some doctors declined while others agreed, and what transpired in individual cases. OPHD reports fail to investigate cases of expansion and complications reported in the media or documented by others. There is no method through which the public can report abuse.
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