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Euthanasia - the Australian Law in an International Context
Part 2: Active Voluntary Euthanasia
'when medical intervention takes place, at the patient's request,
in order to end the patient's life'
Natasha Cica - Consultant
Law and Public Administration Group
The Northern Territory likes to think of itself as frontier country
- it is certainly at the forefront of the international debate over euthanasia.
On 25 May 1995 it became the first jurisdiction in the world to pass laws
allowing a doctor to end the life of a terminally ill patient at the patient's
request. In doing so, the law permits both physician-assisted suicide
and active voluntary euthanasia in some circumstances. However, under
the Rights of the Terminally Ill Act 1995 (NT) strict
conditions apply: it is neither an unqualified 'licence to kill' nor an
unqualified affirmation of a competent adult patient's right to assistance
in dying.
The Act has caused a furore nationally and internationally, with both
extensive criticism and extensive support for the Rights of the Terminally
Act 1995 from politicians, health care professionals, religious groups,
'pro-life' and 'pro-choice' pressure groups, academics, the media and
members of the general public.
The Australian Medical Association condemned the Act - its then President,
Dr Brendan Nelson, saying the legislation devalued human life.(1) The
President of the Australian Federation of AIDS Organisations, Mr Tony
Keenan, welcomed it as 'a great achievement' and 'a very good example
of humane, compassionate legislation that responds to community demand
and community need'.(2) In the United States, an Oregon Right To Life
lobbyist, Ms Gail Atteberry, said she was 'horrified' by the new law,
and believed it would lead to a new kind of tourism: 'I believe the Northern
Territory will become not only the suicide capital of Australia but of
the world.'(3) In the other corner, Mr Robin Fletcher, a spokesman for
the Hemlock Society - the largest pro-euthanasia group in the United States
- said the law was 'wonderful'. 'It sounds like it was well thought out
and a compassionate answer to a problem'.(4)
The law has already survived attempts to repeal it in the Northern Territory
Legislative Assembly, and a challenge to its validity in the Northern
Territory Supreme Court. Leave is being sought to challenge the Act in
the High Court. In Federal Parliament in September, a Liberal backbencher,
Mr Kevin Andrews MP, is introducing a Private Member's Bill aimed at overturning
it. The Commonwealth has the power to enact its own legislation overriding
Territory law under section 122 of the Constitution.
The Federal Bill has the personal support of the Prime Minister, Mr
John Howard, although he will be allowing Liberal Members of Parliament
a conscience vote. The Leader of the National Party, Mr Tim Fischer is
adopting the same approach. It has been reported that the Leader of the
Opposition, Mr Kim Beazley personally opposes euthanasia but that members
of the ALP will also have a conscience vote. No-one has yet used the Territory
legislation, perhaps in part, because medical practitioners are afraid
they could be charged with murder if it is subsequently overturned.
This paper, the second in a four-part series on euthanasia, examines
the Northern Territory legislation in the wider national and international
context, including the approach taken to active voluntary euthanasia in
the Netherlands, England, the United States and Canada.
Under English common law, a doctor is prohibited from taking active
steps to end a patient's life - but there is an exception. A doctor who
administers a pain killer to a terminally ill patient in great suffering,
knowing an incidental effect will be to shorten the patient's life, will
be safe from criminal liability, providing the primary reason for giving
the pain killer was to relieve suffering, not to cause death.
However, it is unclear whether Australian doctors have the same protection.
No doctor has faced criminal prosecution here under those circumstances.
Under Australian homicide laws, a doctor may be guilty of murder if he
or she administered drugs knowing they might cause death, and they did
in fact cause death - even if the doctor did not intend the patient to
die. South Australia is the only state to have clarified the law on this
issue. It appears to have followed the English common law lead.
The Netherlands has a unique approach to regulating active voluntary
euthanasia and physician-assisted suicide. It is often held up as a jurisdiction
in which euthanasia has been decriminalised. This is not an accurate description
of the Dutch legal situation. Active voluntary euthanasia and physician-assisted
suicide are both prohibited under the Dutch Penal Code. However, doctors
have been guaranteed immunity from prosecution providing they have complied
with a number of 'rules of careful practice'. The acceptance of active
voluntary euthanasia and physician-assisted suicide in the Netherlands
is largely due to a unique combination of social and cultural attitudes
including:
- a willingness to discuss difficult moral issues openly;
- the increased secularisation of Dutch society since the 1960s;
- a Calvinist sense of individual responsibility combined with a respect
for the autonomy of others;
- the Royal Dutch Medical Association's approval of doctors participating
in voluntary euthanasia;
- great trust in, and respect for, the medical profession; and
- universal and comprehensive medical coverage.
In 1990, the Dutch Government set up the Remmelink Commission to investigate
'the practice of action and inaction by a doctor that may lead to the
end of a patient's life at the patient's explicit and serious request
or otherwise.' The commission ordered the first empirical study of all
medical decisions at the end life. That study found that in the Netherlands
in 1990 there were:
- 2,300 cases of active voluntary euthanasia, representing 1.8 per cent
of all deaths;
- 400 cases of physician-assisted suicide, representing 0.3 per cent
of all deaths;
- 22,500 cases where death followed the administration of drugs to alleviate
pain and symptoms in such dosages that the risk of shortening the patient's
life was considerable. This represented 17.5 per cent of all deaths;
- 22,500 cases where death had resulted from non-treatment decisions
(ie withdrawal or withholding of medical treatment) representing 17.5
per cent of all deaths;
- 1,000 cases where a doctor had deliberately ended the life of a patient
without a clear and explicit request from the patient, representing
0.8 per cent of all deaths.
No similar studies have been done in Australia. A number of studies
however, about the attitudes, experiences and practices of health professionals
have been conducted. One in South Australia(5) found that 45 per cent
of doctors sampled supported the legalisation of active voluntary euthanasia
in certain circumstances. Another, of doctors in New South Wales and the
ACT(6) found majority support for changes to the law to allow active voluntary
euthanasia. In one survey of Victorian nurses, it was found that about
75 per cent of those taking part in the survey favoured law reform to
enable doctors to perform active voluntary euthanasia in some circumstances.
Sixty-five per cent of the nurses said they would participate in active
voluntary euthanasia if it were legal.(7) Another study of Victorian nurses(8)
involved in palliative care and oncology, found that only 40 per cent
were prepared to assist with active euthanasia if it were legal. However,
50 per cent favoured law reform to enable doctors to take active steps
to bring about a patient's death in some circumstances.
This paper is the second in a series discussing the Australian law relating
to euthanasia in an international context.
For the purposes of these papers, 'euthanasia' is divided into the following
four categories:
- 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
This paper discusses the Australian law relating to the second of these
categories: active voluntary euthanasia. Comparison is made with the approaches
to active voluntary euthanasia developed in a number of other legal systems:
in the Netherlands, the United States of America, England and Canada.
The law in relation to the first category, passive voluntary euthanasia,
is discussed in an earlier paper.(9) The law in relation to the final
two categories, passive involuntary euthanasia and active involuntary
euthanasia, will be discussed in forthcoming papers.
A patient has no legal right to insist on medical intervention that
would end his or her life.
A competent patient's common law 'right to bodily self-determination'(10)
only extends to refusal of treatment; a patient cannot require any doctor
to administer any treatment or medical procedure that the patient requests.(11)
This restriction extends to medical procedures that would cause or hasten
a patient's death. Thus a patient cannot compel an unwilling doctor to
perform such procedures or otherwise to help the patient die.
Even if a doctor wishes to accede to a patient's request to perform
acts that would hasten the patient's death, the criminal law generally
prevents the doctor from doing so. In every Australian jurisdiction, except
the Northern Territory,(12) the crimes of murder and assisting suicide
prohibit a doctor from complying with a patient's request to take active
steps with the aim of bringing about the patient's death.(13) For the
purposes of establishing liability for these crimes under Australian law,
none of the following factors are relevant:
- the doctor was motivated by compassion for the patient;
- the patient was terminally ill;
- the doctor's behaviour merely hastened a death that was inevitable
and/or imminent;
- the patient was competent at the time s/he asked the doctor for assistance,
and the request was both informed and voluntary.
It is useful to examine three different situations in which a competent
patient requests and a doctor provides assistance to end the patient's
life, to discover whether the doctor would be criminally liable in each
situation:
Situation One: The patient is in excruciating pain and asks the doctor
for release from that pain; the doctor administers increased doses of
pain-killing drugs; this hastens the patient's death.
Situation Two: The patient wants to die and asks the doctor for assistance;
the doctor assists by (for example) prescribing drugs, setting up a mechanism,
providing advice about effective means; but the lethal act is performed
by the patient rather than by the doctor.
Situation Three: The patient wants to die and asks the doctor for assistance;
the doctor assists by performing the lethal act (for example, by administering
a lethal injection).
Situation One - The patient is in excruciating pain and asks the doctor
for release from that pain; the doctor administers increased doses of
pain-killing drugs; this hastens the patient's death.
English courts have stated that the criminal law will not intrude here
if the doctor's intention can be described as an intention to relieve
pain rather than as an intention to end the patient's life. In such a
case the law characterises the patient's death as a mere 'side effect'
of the use of drugs to relieve pain and suffering:
... the established rule [is] that a doctor may, when caring for a patient
who is, for example, dying of cancer, lawfully administer painkilling
drugs despite the fact that he knows that an incidental effect
of that application will be to abbreviate the patient's life. Such a decision
may properly be made as part of the care of the living patient, in his
best interests; and, on this basis, the treatment will be lawful.(14)
The rule has also been articulated as follows:
If the first purpose of medicine, the restoration of health, can no
longer be achieved, there is still much for a doctor to do, and he is
entitled to do all that is proper and necessary to relieve pain and suffering,
even if the measures he takes may incidentally shorten life.(15)
This legal principle will not protect a doctor from criminal liability
in every circumstance where a patient's death results from the administration
of drugs in response to a patient's request for pain relief. The principle
appears to be confined to situations where the patient has a terminal
illness and has reached a stage where there is no hope of recovery.(16)
In addition it does not allow a doctor to act with the intention of ending
life as the only way of relieving a patient's pain. A doctor will be exposed
to criminal liability if the doctor's primary purpose in administering
drugs is to hasten the patient's death. A court is more likely to conclude
that this was the doctor's primary purpose if: the doctor does not use
a standard pain killing drug; the doctor uses a standard pain killing
drug but could instead have employed safer pain relieving alternatives;
the doctor administered a larger dose of pain killing drug than was necessary
to reduce the patient's pain to acceptable levels; or the doctor otherwise
departed from accepted professional standards of palliative care.(17)
An important case illustrating the application of this legal rule is
the 1992 English case of R v. Cox.(18) The case involved the criminal
prosecution of Nigel Cox, a consultant rheumatologist, in connection with
the death of his terminally ill patient, Lilian Boyes. Ms Boyes was 70
years old and had been Dr Cox's patient for thirteen years. She was suffering
from rheumatoid arthritis complicated by internal bleeding, gangrene,
anaemia, gastric ulcers and pressure sores. As a result she was in acute
and constant pain from which standard pain-killing drugs did not offer
relief. During the last few days before her death, she repeatedly asked
Dr Cox to end her life. He reassured her that her last hours would be
as free of pain and as dignified as possible. He injected her with a potentially
lethal dose of potassium chloride, a drug without recognised pain killing
properties. She died within minutes of the injection.
Dr Cox was prosecuted for attempted murder.(19) The jury at Winchester
Crown Court found him guilty as charged, and the trial judge gave him
a suspended sentence of 12 months' imprisonment.
Professional disciplinary proceedings were also taken against Dr Cox.
The Professional Conduct Committee of the General Medical Council admonished
Dr Cox for his conduct in this case, describing it as 'both unlawful and
wholly outwith a doctor's professional duty to a patient'. The Professional
Conduct Committee nonetheless expressed its 'profound sympathy' for his
situation and declined to suspend his registration or take further action
against Dr Cox. The health authority who employed Dr Cox, however, refused
to allow him to return to work unless he complied with certain conditions.
These included the requirement that he receive further training in palliative
care.
Any or all of the following rationales may underpin this 'exception'
under English law to the legal prohibition against performing acts that
will kill a patient:
- The philosophical doctrine of 'double effect'. This doctrine originates
in Roman Catholic moral theology. Applying this doctrine, the doctor
who acts intending to achieve a primary effect which is good (relieving
pain) does not intend and is not culpable for a secondary effect which
is bad (killing the patient).(20)
- Acting with the intention to relieve pain is in accordance with the
doctor's duty to act in the patient's best interests, whereas acting
with the primary intention to kill is not.(21)
These rationales have been criticised as relying on 'illogical legal
fictions'(22) and 'fine and arguably unworkable distinctions'.(23) It
has been argued that all these rationales employ sophistry to avoid acknowledging
that many doctors who administer life-shortening pain relief do in fact
intend their patient's death. It has been further claimed that this leads
to hypocrisy on the part of doctors (who cannot admit that their intention
when administering pain relief is in many cases to hasten death, as well
as to relieve pain) and on the part of society (which does not wish criminal
sanctions to apply to doctors who hasten their patient's death in this
way).(24) One commentator states this claim as follows:
Everything ultimately turns on what the doctor claims he was
trying to achieve. As long as he uses the right verbal formula and records
it in the patient's notes and to be on the safe side does not use too
unusual a drug, he will stay within the law. Knowing how to play the game
becomes the crucial determinant of criminal liability, rather than what
objectively is done or what results. When the crime is murder, this can
hardly be satisfactory.
... The current state of the law endorses, indeed entrenches, hypocrisy.
'We all know what you are doing, but use the magic words, 'I'm doing
this to relieve your pain' and all will be well'. Alternatively, the
law encourages casuistry, as those who are anxious to do right by their
patients, as they see it, feel compelled to resort to subterfuge out
of fear of prosecution. Fear of prosecution is of course eminently desirable
when designed to deter what is accepted as wrong. But when it is neither
the means nor the end which is regarded as wrong but rather the absence
of the attendant rhetoric or ritual, such fear becomes itself a wrong.(25)
The claim that the legal authorisation of 'unintentional' deaths as
the result of pain relief is being used to disguise situations involving
criminal behaviour (ie situations where death results from the actions
of a doctor whose primary intention is to bring about that death)(26)
is not uncontroversial. The claim nonetheless deserves serious attention,
particularly as it is often associated with a further claim: that some
doctors hasten their patients' deaths on request in situations where the
doctors' behaviour is clearly not associated with any attempt at pain
relief.(27) These arguments are often then used in support of removing
or relaxing the legal prohibitions on 'physician-assisted suicide' (i.e.,
behaviour falling within situation 2, discussed below) and/or 'active
voluntary euthanasia' (i.e., behaviour falling within situation 3, discussed
below).(28)
These charges of hypocrisy and reliance on damaging legal fictions might
be deflected, however, if the law acknowledged an alternative rationale
for the 'exception' outlined in the English case law. That rationale is
the legal doctrine of 'necessity'.(29) Applying this doctrine, the administration
of a potentially fatal dose of pain relieving drugs would be excused as
necessary if that was the only way for the doctor to relieve the patient's
pain, and thus the doctor's only other option would be to leave the patient
without adequate pain relief.(30) Importantly, the doctor would not need
to believe or pretend that the death of the patient was unintended to
utilise this defence.
The sophistication of modern methods of pain relief would mean, however,
that explicit legal recognition of a 'necessity' defence in these terms
would only justify intentional administration of life-shortening pain
relief by a doctor in the most exceptional circumstances.(31) If the law
wished to use the doctrine of necessity to legitimise such behaviour by
doctors in a broader range of circumstances, it would need to specify
clearly and explicitly in which circumstances the doctrine would apply.
In developing such criteria the crucial question would be exactly where
the law should draw the line between life-shortening behaviour that is
criminal and behaviour that is not. This would lead inevitably beyond
consideration of when it should be lawful to administer pain-relieving
drugs in potentially fatal doses, to the broader question of whether the
law should ever permit a doctor to perform any act that amounts to 'physician-assisted
suicide' (i.e., behaviour falling within situation 2) and/or 'active voluntary
euthanasia' (i.e., behaviour falling within situation 3).(32) This would
require serious assessment of the argument that it is not exceptional
for doctors to comply with their patients' requests to hasten their deaths,
and that there is a corresponding and undesirable disparity between what
the law says and what doctors do in practice.
There have been no criminal prosecutions of doctors in Australia in
relation to their administration of pain relieving drugs that have hastened
death.(33) There has been no judicial clarification, therefore, of the
legal position in Australia. In the absence of such clarification it may
not be safe to assume that the legal 'exception' articulated in the English
case law is part of the criminal law of Australia. It has been suggested
that, under a strict interpretation of the relevant Australian homicide
laws, a doctor actually may not be immune from liability for murder, in
respect of the death of a patient resulting from the administration of
pain killing drugs, simply because the situation can be characterised
as one where the doctor did not intend to cause the death. Rather,
the doctor may be potentially liable for murder if the doctor administered
the drugs in the knowledge that the patient might die as a result
and if the drugs did in fact hasten the patient's death.(34) Thus:
Although it appears to be widely accepted amongst the medical
profession that the administration of life-shortening palliative care
is ethical and constitutes legitimate medical practice, it is open to
question whether this practice is in fact lawful.(35)
It should also be noted that, even if an Australian court did reach
the same result as the courts in England, it might not necessarily adopt
the same legal rationale(s) for doing so. It therefore is possible that
an Australian court would express this legal exception in terms of the
doctrine of necessity, in preference to any rationale that depends upon
an absence of intention to hasten the patient's death.
In 1991 the Law Reform Commission of Western Australia expressed concern
at the uncertainty of the legal position when death is hastened by the
administration of pain relieving drugs. Accordingly it recommended that
legislation be introduced to protect doctors from liability 'for administering
drugs or other treatment for the purpose of controlling pain, even though
the drugs or other treatment may incidentally shorten the patient's life,
provided that the consent of the patient is obtained and that the administration
is reasonable in all the circumstances'.(36) No such legislation has been
enacted in Western Australia.
Only South Australia has statutory provisions that clarify the law on
this issue. The relevant provisions seem to confirm the applicability
in South Australia both of the English legal rules and of their dependence
on the doctor's primary intention being to relieve pain. Section 17(1)
of the new Consent to Medical Treatment and Palliative Care Act 1995
(SA) applies to the situation where a doctor, or other health care professional
acting under a doctor's supervision, administers medical treatment 'with
the intention of relieving pain or distress', even though 'an incidental
effect of the treatment is to hasten the death of the patient'.(37) This
section provides that the doctor or other health care professional will
incur no civil or criminal liability in this situation provided she or
he acts:
- with the consent of the patient or the patient's representative; and
- in good faith and without negligence; and
- in accordance with proper professional standards of palliative care.
This legislation also provides that the administration of medical treatment
for the relief of pain or distress in accordance with these conditions
'does not constitute an intervening cause of death' for the purposes of
South Australian law.(38)
The Medical Treatment Act 1988 (Vic) 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'.(39) The definition
of palliative care includes 'the provision of reasonable medical procedures
for the relief of pain, suffering and discomfort'. Thus the Victorian
legislation does not disturb the common law rules as to when administration
of pain relieving measures that hasten death can result in criminal liability;
but it neither clarifies those rules nor explains their underlying rationale.
The Natural Death Act 1988 (NT) is similarly unhelpful. It provides
that its operation 'does not affect the legal consequences (if any) of
taking ... therapeutic measures (not being extraordinary measures) in
the case of a patient who is suffering from a terminal illness, whether
or not the patient has made a direction under this Act'.(40) Therapeutic
measures are not defined in this context, but presumably would include
the administration of pain relieving measures. The legislation does not
specify what the unaffected legal rules governing the administration of
such measures might be. Nor does it refer to any possible rationale for
those rules.
Like the Victorian legislation, the Medical Treatment Act 1994
(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'.(41) It similarly includes 'the provision of reasonable
medical and nursing procedures for the relief of pain, suffering and discomfort'
in its definition of palliative care.(42) These provisions also do not
indicate when (or why) the administration of pain relieving measures that
result in a patient's death will not result in criminal liability. Nor
does the section of the ACT legislation that, 'notwithstanding the provisions
of any other law of the Territory' confers on a patient 'a right to receive
relief from pain and suffering to the maximum extent that is reasonable
in the circumstances'.(43) The legislation does not indicate whether or
under which circumstances pain relief that kills a patient will be considered
to be 'reasonable' for these purposes. It merely states that a health
professional must 'pay due regard to the patient's account of his or her
level of pain and suffering' when administering pain relief to a patient.(44)
In June 1995 the Queensland Parliament passed the Criminal Code Act
1995 (Qld) to repeal the Criminal Code Act 1899 (Qld) and thereby
introduce a new Criminal Code. The amending legislation replaces section
282 of the old Criminal Code with a new section 82.(45) This new section
absolves 'a person' of criminal responsibility for providing 'medical
treatment' (defined as including 'pain relief') where such provision is
provided 'in good faith and with reasonable care and skill', is 'for the
patient's benefit' and is 'reasonable, having regard to the patient's
state at the time and all the circumstances'. The rather loose wording
of this section suggests that it may authorise the administration of pain
killing drugs that shorten a patient's life in circumstances that would
not fall within the 'exception' delineated in the English case law. The
new section 82 would seem to authorise the administration of life-shortening
pain relief by a doctor or any other person even where the intention
clearly is to end the patient's life.(46) It also seems to authorise the
administration of other 'medical treatment' (that is not associated with
'pain relief') with the intention of ending the patient's life, although
it is not clear exactly what would amount to medical treatment for the
purposes of new section 82. The new section therefore may be interpreted
as possibly authorising 'active voluntary euthanasia' (ie behaviour
falling within situation 3), provided only that the acts performed to
end the patient's life are:
- performed in good faith;
- performed with reasonable care or skill;
- for the patient's benefit; and
- reasonable, having regard to the patient's state at the time and all
the circumstances.
The new section offers no explanation of when these conditions might
be satisfied.
During the parliamentary debate on the Criminal Code Bill 1995
(Qld), the Queensland Minister for Justice and Attorney-General stated
the following in relation to the proposed new section 82:
... it is not the intention of this Parliament by this provision
to legalise euthanasia and there is no intention in this Parliament to
diminish the force of existing prohibitions against euthanasia ... if
there is any member of this Parliament who, by this section, wishes to
legalise euthanasia and wishes this Bill here and now to legalise euthanasia,
let them now speak. Let the Hansard record show that no member of this
House spoke. Let the Hansard record show that the intention of this Parliament
is translucently clear.(47)
The relevant sections of the Criminal Code Act 1995 (Qld) have
not yet commenced and will not do so until at least 14 June 1997.
Situation Two - The patient wants to die and asks the doctor for assistance;
the doctor assists by e.g. prescribing drugs, setting up a mechanism,
providing advice about effective means; but the lethal act is performed
by the patient rather than the doctor.
Situation Two is often described as 'physician-assisted suicide' and
shall be referred to as such in this paper.
A doctor who complies with a patient's request in this way is exposed
to criminal liability. The relevant offence is assisting suicide.
Although the criminal law in Australia no longer proscribes suicide
or attempted suicide, assisting suicide is a crime in all Australian jurisdictions.
In New South Wales, the Australian Capital Territory, Victoria and South
Australia, it is an offence for a person to 'incite, counsel, aid or abet'
another person to commit suicide or attempt to commit suicide.(48) In
Queensland, Western Australia and the Northern Territory, it is an offence
to 'procure' or 'counsel' another person to kill himself or 'aid' another
in killing himself.(49) In Tasmania, it is an offence to 'instigate or
aid another to kill himself'.(50) The penalties for assisted suicide vary
between jurisdictions.
Prosecutions for assisting suicide are rare in Australia. The few cases
that have come before the courts have tended to involve provision of assistance
by family members or friends of the victim, where the accused has been
motivated by compassionate motives. These cases are sometimes referred
to as involving 'mercy-assisted suicide'.(51) The law clearly states that
a person who has assisted another's suicide cannot escape liability by
virtue of compassionate motive or other extenuating circumstances. The
Australian criminal justice system nonetheless treats an accused person
who was motivated by compassion with relative leniency, even where that
person has clearly violated the criminal law. In particular, Australian
judges have imposed very lenient sentences on people convicted of assisting
suicide in this context.(52)
There have been no prosecutions of doctors in Australia for assisting
the suicide of their patients. Should such a case arise, however, it is
likely that a court would display the same leniency it has shown in other
'mercy-assisted suicide' cases if the doctor's motive was compassionate.
Physician-assisted suicide, however, is legal in some circumstances
in the Northern Territory due to the enactment of the Rights of the
Terminally Ill Act 1995 (NT). The Northern Territory legislation is
discussed further below.
Situation Three - The patient wants to die and asks the doctor for assistance;
the doctor assists by performing the lethal act (eg by administering a
lethal injection).
Situation Three is sometimes described as 'physician-aid-in-dying'.
It is more frequently described as 'active voluntary euthanasia', however,
and shall be referred to as such in this paper.
A doctor who complies with a patient's request in this way is exposed
to criminal liability. The relevant offence is murder. In all Australian
jurisdictions, murder is committed if a person dies as the result of an
act deliberately undertaken to bring about that death.(53)
Life imprisonment remains the mandatory sentence for a murder conviction
in the Northern Territory, Queensland, South Australia, Tasmania and Western
Australia. The sentence for murder is now discretionary, with a maximum
sentence of life imprisonment, in New South Wales, the Australian Capital
Territory and Victoria.(54)
No doctor has ever been prosecuted for murder in Australia for performing
active voluntary euthanasia.
There has been one case in Western Australia in which a doctor was charged
with the murder of a patient who died following the administration of
morphine after she had suffered a heart attack.(55) It is unclear, however,
whether the case involved active voluntary euthanasia: first, because
it was not clear whether the patient had asked the doctor to end her life;
and secondly, because the dose of morphine may not have been sufficiently
large to infer that the doctor clearly intended the patient's death. Further,
the evidence did not conclusively indicate whether the patient had died
from the morphine or from her heart attack. The case was dismissed at
the end of committal proceedings on the basis that there was insufficient
evidence that could support a conviction.
There has also been a case in New South Wales in which criminal charges
were laid against a nurse's assistant who had administered an unauthorised
dose of pethidine to an elderly patient.(56) The charge was attempted
murder rather than murder, because the patient subsequently died from
natural causes rather than from the overdose of pethidine. The accused
(initially) admitted that he had administered the drug with the intention
of killing the patient, but claimed he had acted out of merciful motives
because the patient had been in severe pain. Again, however, this case
seems not to have involved active voluntary euthanasia because the evidence
did not indicate whether the patient had asked to receive a lethal overdose.
At his trial the accused pleaded not guilty and the court was presented
with evidence that he had been receiving psychiatric treatment. The jury
acquitted the accused of the charge.
There have also been a significant number of Australian cases involving
murder prosecutions of family members or friends of the victim, where
the accused has been motivated by compassionate motives. These cases are
sometimes referred to as 'mercy killing' cases.(57) As with assisted suicide,
the law clearly states that the accused's compassionate motive or other
extenuating circumstances are not relevant in establishing liability for
murder. As with those accused of assisted suicide, however, the Australian
criminal justice system treats with leniency a person who has clearly
murdered a friend or family member but was motivated by compassion:
- ... 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 clemency.(58)
It may be inferred that any doctor charged with murder for compassionately
performing active voluntary euthanasia would be treated with similar leniency.
The only Australian jurisdiction in which active voluntary euthanasia
is clearly legal in some circumstances is the Northern Territory.
This situation is due to changes in the law introduced by the Rights
of the Terminally Ill Act 1995 (NT). The long title of the legislation
is as follows:
- An Act to confirm the right of a terminally ill person to request
assistance from a medically qualified person to voluntarily terminate
his or her life in a humane manner; to allow for such assistance to
be given in certain circumstances without legal impediment to the person
rendering the assistance; to provide procedural protection against the
possibility of abuse of the rights recognised by this Act; and for related
purposes.
The legislation sets out a statutory regime under which physician-assisted
suicide and active voluntary euthanasia may be performed without violating
the criminal (or any other) law. The legislation allows a doctor to comply
with a request by a terminally ill, competent adult patient for assistance
in ending the patient's life if specified conditions are satisfied. Thus
it is neither an unqualified 'licence to kill' nor an unqualified affirmation
of a competent adult patient's right to assistance in dying. The provisions
of the legislation are discussed in detail below.
The Rights of the Terminally Ill Act 1995 (NT) allows a doctor
to respond to a patient's request for assistance in terminating the patient's
life(59) if, and only if, all the following conditions are satisfied:
- the patient is terminally ill.(60)
'Terminal illness' is defined as 'an illness which, in reasonable medical
judgment will, in the normal course, without the application of extraordinary
measures or of treatment unacceptable to the patient, result in the death
of the patient'.(61)
- the patient has attained the age of 18 years.(62)
- the terminal illness is causing the patient 'severe pain or suffering',(63)
such that the patient is 'experiencing pain, suffering and/or distress
to an extent unacceptable to the patient'.(64)
- there are no palliative care options 'reasonably available to the
patient to alleviate the patient's pain and suffering to levels acceptable
to the patient'.(65)
- the doctor has informed the patient about:
- the nature of the illness and its likely course; and
- the medical treatment that is available to the patient (including
palliative care, counselling and psychiatric support).(66) If the
doctor does not hold specialist qualifications in the field of palliative
care, this information must be provided by another doctor who does
hold such qualifications.(67)
- after receiving the information described above, the patient has
indicated to the doctor the desire to end his or her life.(68)
- the doctor is satisfied, on reasonable grounds, that:
- the patient is suffering from a terminal illness. i.e., an illness
that will, in the normal course and without the application of extraordinary
measures, result in the death of the patient;(69) and
- there is no medical treatment acceptable to the patient that can
cure the patient's condition;(70) and
- the only medical treatment available to the patient is palliative
care, i.e., treatment to relieve 'pain, suffering and/or distress
with the object of allowing the patient to die a comfortable death';(71)
and
- the patient is 'of sound mind' and the patient's decision to end
his or her life 'has been made freely, voluntarily and after due
consideration';(72) and
- the patient has considered the possible implications of this decision
for his or her family.(73)
- The doctor has been entitled to practise medicine in Australia for
a continuous period of not less than five years, and is currently a
resident of the Northern Territory and entitled to practise medicine
in the Northern Territory.(74) Note that the legislation does not require
that the patient be a Northern Territory resident.
- A second independent doctor, who is a specialist in the treatment
of the terminal illness from which the patient is suffering,(75) has
confirmed the first doctor's opinions about the patient's illness.(76)
This doctor must also have been entitled to practise medicine in Australia
for a continuous period of not less than five years, and be currently
a resident of the Northern Territory and registered to practise medicine
in the Northern Territory.
- A third independent doctor, who is a qualified psychiatrist,(77) confirms
that the patient is not suffering from a treatable clinical depression
in respect of the illness.(78) This doctor need not be a resident of
the Northern Territory nor registered to practise medicine in the Northern
Territory.
- The patient (or, if the patient is physically unable to do so, someone
appointed by the patient) has signed a 'certificate of request' in or
to the effect of the form in Schedule 7. The signature must be witnessed
by the (first) doctor. The certificate of request must also be signed,
in the presence of the patient and the first doctor, by another doctor
who has discussed the case with the patient and the first doctor. Neither
the first doctor nor the countersigning doctor, or their close relatives
or associates, must knowingly stand to gain any financial or other advantage
(other than a reasonable payment for medical services) as a result of
the patient's death.(79)
- The certificate of request must not have been signed before a 7 day
'cooling off period' has elapsed since the patient indicated to the
(first) doctor that the patient wished to end his or her life.(80)
- A second 'cooling off' period of 48 hours has elapsed since the certificate
of request was signed.(81)
- The patient has at no time indicated to the (first) medical practitioner
that the patient no longer wished to end his or her life.(82)
- The patient has been appropriately assisted by a qualified interpreter,
if the patient's first language is not the same as that of any of the
doctors who are required to communicate with the patient in this process.(83)
Even if all these conditions have been satisfied, the patient may 'at
any time and in any manner' rescind his or her request for assistance
in dying.(84) Further, a doctor is at no time under any legal obligation
to accede to the patient's request for assistance. The legislation specifically
states that a doctor may 'for any reason and at any time' refuse to assist
the patient to end his or her life.(85) Further, no health care provider
is under any legal duty to participate in the provision by a doctor of
assistance to end a patient's life.(86)
If a doctor does choose to comply with the patient's request, the doctor
may do so by prescribing a lethal substance, preparing a lethal substance,
giving the lethal substance to the patient for self-administration, and/or
administering the lethal substance to the patient.(87) This authorises
both physician-assisted suicide and active voluntary euthanasia. When
assisting a patient to die in any of these ways, the doctor must be guided
by 'appropriate medical standards', must 'consider the appropriate pharmaceutical
information about any substance reasonably available for use' and should
choose the 'drug or combination of drugs which the medical practitioner
determines is the most appropriate to assist the patient'.(88) The doctor
need not be present at the time of the patient's death in order to comply
with the legislation.(89) Where the doctor is to assist the patient by
administering lethal drugs, the doctor should provide information about
the effects of those drugs to the patient's friends and family members
so that they may decide whether to be present at the death.(90) The doctor
should also 'remain for a reasonable time after the death of the patient
with the family and friends of the patient who are in attendance' to answer
any questions they may have about the death.(91)
The doctor must keep detailed written records in relation to assisting
a patient to die under this legislation. These records must include notes
of any oral request made by the patient for assistance in signing, the
certificate of request, a written opinion as to the patient's state of
mind when the patient signed the certificate of request, the reports of
the second and third doctors, and a record of the steps taken to carry
out the patient's request and of the substance prescribed to cause death.(92)
The doctor must also report any such death and forward the relevant medical
records to the Coroner, who is in turn required to report the annual number
of deaths under this legislation to the Attorney-General. The Coroner
may also report to the Attorney-General on any other matter relating to
the operation of the legislation. The Attorney-General must report the
Coroner's findings to the Legislative Assembly.(93)
A doctor who assists a patient to end his or her life in compliance
with this legislation is immune from civil or criminal action and professional
disciplinary action, provided the doctor has acted 'in good faith and
without negligence'. This immunity extends to all other people, including
other health care professionals, who are involved with the death of the
patient.(94)
The legislation imposes strict penalties for certain behaviour:
- Anyone who makes inducements or threats to a doctor or to another
person in relation to a patient's request for assistance in terminating
his or her life commits an offence. The penalty is $10 000.(95)
- Anyone who uses deception or improper influence to procure the signing
or witnessing of a certificate of request commits an offence. The penalty
is $20 000 or imprisonment for four years.(96)
- A doctor who fails to comply with the record-keeping or reporting
requirements imposed by the legislation commits an offence. The penalty
is $10 000 or imprisonment for two years.(97)
The Rights of the Terminally Ill Bill 1995 (NT) was introduced
into the Northern Territory Legislative Assembly as a Private Member's
Bill on 22 February 1995 by Marshall Perron, the (then) Chief Minister
of the Northern Territory. On the same day, a Select Committee on Euthanasia
was established to inquire into the Bill and report back to the Northern
Territory Legislative Assembly by 16 May 1995.(98) On 25 May 1995, the
Legislative Assembly passed the legislation by 15 votes to 10 after over
50 amendments had been made to the original Bill.(99)
The Northern Territory thereby became the first jurisdiction in the
world to pass legislation permitting active voluntary euthanasia.(100)
Unsurprisingly, therefore, the passing of this legislation attracted a
great deal of attention. Worldwide access to information about the new
legislation was facilitated by an Internet website established by the
Northern Territory Legislative Assembly.(101) Nationally and internationally,
there was both extensive criticism and extensive approval of the Northern
Territory legislation from politicians, health care professionals, religious
groups, 'pro-life' and 'pro-choice' pressure groups, academic, the media
and members of the general public.
Opponents of the new legislation immediately called for its repeal by
the Northern Territory Legislative Assembly. There were also suggestions
that the Governor-General of Australia should disallow, and thereby repeal,
the legislation using his powers under the Northern Territory (Self-Government)
Act 1978 (Cth).(102)
The Administrator of the Northern Territory assented to the Rights
of the Terminally Ill Act 1995 (NT) on 16 June 1995. On 20 February
1996, the NT Legislative Assembly passed further amendments to the legislation.(103)
These amendments were contained in the Rights of the Terminally Ill
Amendment Act 1996 (NT). The amendments increased by one the
number of doctors who must be involved in the process of assessing a patient
who has asked to be helped to die under the legislation, and made it clear
that one of those doctors must be a qualified psychiatrist and another
a specialist in the patient's illness clarified the qualifications that
those doctors must possess.(104) The amendments also made changes to the
interpreter provisions in the legislation.(105) Attempts to include an
amendment to introduce a sunset clause into the Rights of the Terminally
Ill Act 1995 (NT) to terminate its operation on 1 July 1999 failed.
Attempts to introduce an amendment to repeal the Rights of the Terminally
Ill Act 1995 (NT) also failed, as did separate attempts to pass a
new Private Member's Bill to the same effect.(106)
On 29 June 1996 the Administrator of the Northern Territory made regulations
under the Rights of the Terminally Ill Act 1995 (NT). These regulations
- the Rights of the Terminally Ill Regulations 1996 (NT) - came
into effect on 1 July 1996. The Rights of the Terminally Ill Act 1995
(NT) also commenced on 1 July 1996.
In August 1996, attempts in the Northern Territory Legislative Assembly
to amend and repeal the Rights of the Terminally Ill Act 1995,
failed.
In an unsuccessful attempt to prevent the Rights of the Terminally
Ill Act 1995 (NT) from coming into effect, in June 1996 a private
legal challenge was initiated against the Northern Territory of Australia,
the Administrator of the Northern Territory and the Commonwealth of Australia.(107)
The President of the Northern Territory Branch of the Australian Medical
Association, Dr Chris Wake, and Aboriginal leader Reverend Dr Djiniyini
Gondarra lodged a writ in the Northern Territory Supreme Court challenging
the validity of the legislation. The Northern Territory Supreme Court
heard the case on 1-2 July 1996 and reserved its decision. Judgement was
delivered on 24 July 1996. By a majority of 2:1 the Supreme Court rejected
the challenge to the legislation.
The plaintiffs in Wake and Gondarra v. Northern Territory and Asche
claimed that the Rights of the Terminally Ill Act 1995 (NT)
was invalid on two broad bases:
- that no valid assent had been given to the legislation; and
- that the legislative competence of the Northern Territory did not
extend to the making of this.
In respect of the first claim, all three judges agreed that this question
turned on the proper construction of sections 7, 32 and 35 of the Northern
Territory (Self Government) Act 1978 (NT) and of Regulation 4 of the
Northern Territory (Self-Government) Regulations 1978 (NT).
The two majority judges, Martin CJ and Mildren J, in a joint judgement
concluded that the Administrator had given valid assent to the legislation
under section 7(2)(a), because the Rights of the Terminally Ill Act
1995 (NT) satisfied the requirement that it was a law 'for or in relation
to a matter specified under section 35'. These matters are listed in Regulation
4. They are the matters over which the Administrator is given executive
authority by section 32.(108) The majority judges denied that the fact
that the Northern Territory is not yet a State means that the scope of
these matters, which are expressed in broad terms, should be interpreted
narrowly.(109) These judges accordingly held that the challenged legislation
related to three of these matters: 'maintenance of law and order and the
administration of justice'; 'private law'; and 'the regulation of businesses
and professions'.(110)
The dissenting judge, Angel J, disagreed on this point. He concluded
that the challenged legislation had no substantial connection with any
of the matters listed in Regulation 4, even on the most generous interpretation
of the scope of those matters.(111) He stated that these heads of executive
power could not encompass 'the legislative establishment of intentional
termination of human life other than as punishment,' and that the challenged
legislation purported to do this.(112) Angel J therefore concluded that
the legislation had not been lawfully assented to and had not passed into
law.(113)
In respect of the second claim, Martin CJ and Mildren J concluded that
the Rights of the Terminally Ill Act 1995 (NT) was not ultra
vires the legislative power of the Northern Territory Legislative
Assembly. That power is conferred by section 6 of the Northern Territory
(Self Government) Act 1978 (Cth) and enables the Legislative Assembly
'to make laws for the peace, order and good government of the Territory'.
The majority judges referred to case law indicating that this power is
a plenary power of the same quality as that enjoyed by State legislatures.(114)
They rejected the plaintiffs' claim that the exercise of legislative
power by the Legislative Assembly is constrained by an obligation to protect
an inalienable 'right to life', which is 'deeply rooted in our democratic
system of government and the common law'.(115) These judges stated that
they did not need to decide whether the challenged legislation infringed
any fundamental right because, in the absence of 'a constitutionally enshrined
Bill of Rights', that question was 'ethical, moral or political' and not
legal.(116) These judges further stated that, like a State Parliament,
the Northern Territory Legislative Assembly had legislative power to abrogate
any 'fundamental rights, freedoms or immunities', provided its intention
to do so was manifested clearly and unmistakably.(117) Thus, even if the
challenged legislation could be said to affect any 'fundamental rights,
freedoms or immunities', the legislation was not ultra vires because
its language was clear and unambiguous.(118)
In view of his conclusion that the Rights of the Terminally Ill Act
1995 (NT) had not been assented to validly, Angel J considered that
he need not express any final view on the question of whether the legislation
was ultra vires the legislative power of the Legislative Assembly.(119)
Angel J did state, however, that in this context he did not think that
'the legal question can ignore the philosophical questions, both moral
and political involved, and the values at stake'.(120) He considered that
the plaintiffs' submission involved 'much deeper and broader questions
than whether parliament by clear words can abrogate a 'fundamental right'.(121)
Although he doubted the existence of any legally enforceable 'right to
life', he considered that the plaintiffs' arguments rested on more than
the claim that this right existed. Rather, he considered that their arguments
embraced 'the Natural lawyers' criticisms of the sovereignty of parliament,
and the view that parliament itself is subject to the Rule of Law' and
that the approach adopted by the majority judges did not dispose of these
questions.(122)
The High Court of Australia is expected to agree to hear an appeal against
the findings of the Northern Territory Supreme Court in this case.
Regardless of the final outcome of the challenge to the validity of
the Northern Territory legislation, it is possible that the Commonwealth
Parliament will enact its own legislation to override the Rights of
the Terminally Ill Act 1995 (NT).
The Commonwealth Parliament has the power to do so under section 122
of the Australian Constitution. That power is a plenary power which
enables the Commonwealth Parliament to pass legislation to override any
Northern Territory law.
In Wake and Gondarra v. Northern Territory and Asche, Martin
CJ and Mildren J referred to this power and made the following comment:
To the extent that there is any force in the argument that
the Territory Parliament or Territory Ministers are somehow not to be
trusted with the full extent of legislative or executive power which the
wording of section 6 or reg 4 would plainly permit, either because of
the novelty of the proposed new law or because they, as in this case,
provide a limited power to do that which no other legislature in the world
has so far found fit to permit, or because it abrogates some fundamental
human right, the existence of the powers retained by the Commonwealth
suggest that these are matters which are to be determined by political
and not legal resolution. The same may be said in respect of laws which
adversely affect Australia's image as a nation or the interests of Australians
resident in the States which the Commonwealth feels an obligation to protect.(123)
Mr Kevin Andrews MP (Liberal Party, Victoria) has indicated his intention
to introduce a Private Member's Bill into the Commonwealth Parliament
to override the Northern Territory legislation. He has also indicated
that such a Bill might have retrospective effect.
There have been a number of recent attempts in other parts of Australia
to enact legislation modelled on the Rights of the Terminally Ill Act
1995 (NT).
On 9 March 1995 Mr John Quirke MLA, the Shadow Treasurer of South Australia,
introduced a Private Member's Bill entitled the Voluntary Euthanasia
Bill 1995 (SA) into the South Australian Legislative Assembly.(124)
The Bill was rejected by the Legislative Assembly on 27 July 1995, by
30 votes to 12.
In August 1995 Mr Michael Moore MLA, who had introduced the ill-fated
Voluntary and Natural Death Bill 1993 (ACT) into the ACT Legislative
Assembly, introduced an exposure draft of a Private Member's Bill entitled
the Medical Treatment (Amendment) Bill 1995 (ACT). This Bill was
tabled in its final form in September 1995. The Bill was defeated in the
ACT Legislative Assembly on 22 November 1995 by 10 votes to 7. Two ALP
members and one Independent voted with the Liberal Party in opposing the
Bill. Two Greens and five ALP members voted in support of the Bill.
On 30 May 1995 Mr Paul O'Grady MLC was given leave by the Australian
Labor Party to introduce a Private Member's Bill into the New South Wales
Legislative Council to provide for 'regulation to protect medical practitioners
who assist the terminally ill to end their lives'.(125) He had not done
so, however, at the time of his resignation from Parliament in January
1996 due to ill health. No other member of the NSW Parliament has expressed
a firm commitment to introducing legislation of this kind.(126) In June
1995 the AIDS Council of NSW launched a draft Bill, entitled the Voluntary
Euthanasia Bill 1995, the provisions of which are broadly similar
to the Northern Territory legislation.(127)
The Netherlands has a unique approach to the regulation of physician-assisted
suicide and active voluntary euthanasia. Both are an openly practiced
and widely accepted part of medical practice in the Netherlands.(128)
The Dutch approach to this issue therefore has attracted considerable
international interest:
The Netherlands is the only country in which [active voluntary]
euthanasia is openly practised in accordance with formal regulation. Evaluation
of experience there is therefore useful to any assessment of the likely
effects of the practice of euthanasia, allowing of course for social and
cultural differences, and for differences in the health-care environment.(129)
Due to these social and cultural differences, however, aspects of the
Dutch approach to the regulation of this kind of euthanasia are often
misunderstood. It therefore is important to note that the Dutch approach
to this issue has been characterised and/or influenced by the following:(130)
- a willingness to discuss 'difficult moral issues' openly, and an associated
belief that such openness is necessary in order to be able to regulate
potentially problematic activities. This belief also underlies the Dutch
approach to the regulation of matters such as prostitution, the age
of consent, contraception, abortion, homosexuality and the use of soft
drugs.
The issue of euthanasia has been debated 'vigorously and publicly' in
the Netherlands since the early 1970s. Since the mid-1980s, public debate
in the Netherlands on this issue has focussed on whether active voluntary
euthanasia and physician-assisted suicide should be legalised altogether,
or should instead remain criminal acts in principle but with clear rules
about not to prosecute.(131)
- the increased secularisation of Dutch society since the 1960s.
- a Calvinist sense of individual responsibility and accountability
for one's own actions; combined with a respect for the autonomy of others,
and tolerance of different philosophies of life and lifestyles ('live
strictly and let live').
- The Royal Dutch Medical Association, which represents 60 per cent
of Dutch doctors and currently has over 24 000 members, accepted in
1984 that physician-assisted suicide and active voluntary euthanasia
can form a part of proper medical practice, provided certain guidelines
are observed. It is the only leading national medical association in
the world that officially approves of doctors practising active voluntary
euthanasia and physician-assisted suicide.
- cooperation and dialogue between the government and the medical profession
concerning the regulation of euthanasia.
- recognition (since 1990) of the need to obtain empirical evidence
about the practice of euthanasia before making government policy and
laws about euthanasia; and the willingness of government to fund research
to obtain this empirical evidence.
- great trust in, and respect for, the medical profession among the
general public.
- a medical system in which the family doctor (huisart) plays
a central role. Many people in the Netherlands die at home, cared for
by their general practitioner with whom they have had a personal and
long-standing relationship.
- a strong commitment to the ethic of the welfare state.
- universal, comprehensive medical coverage and a high standard of medical
care.
- a generally high standard of nursing home care.
- It is often claimed, however, that both palliative care and the hospice
movement are underdeveloped in the Netherlands.(132)
It is often reported that active voluntary euthanasia has been decriminalised
in the Netherlands. This is not an accurate description of the Dutch legal
situation.
The Penal Code of the Netherlands contains a variety of provisions prohibiting
the intentional taking of human life. Two of these provisions specifically
relate to physician-assisted suicide and active voluntary euthanasia:
- Article 293 of the Penal Code prohibits taking a person's life at
that person's 'express and serious request'. This crime, sometimes described
as 'the offence of voluntary euthanasia'(133), is punishable by imprisonment
for a maximum of 12 years or by a fine.
- Article 294 of the Penal Code prohibits assisting suicide. Where a
death by suicide has occurred, anyone who helped bring about that death
could be prosecuted under article 294 for intentionally inciting another
to commit suicide, assisting in the suicide of another, or procuring
the means for another to commit suicide. Where a death has occurred,
this crime is punishable by imprisonment for a maximum of 3 years or
a fine.
These statutory provisions remain in force and there is no indication
that the Dutch legislature intends to repeal Article 293 or Article 294
in the foreseeable future. Despite this, physician-assisted suicide and
active voluntary euthanasia are permitted in certain defined circumstances.
A combination of prosecutorial policy and case law permits doctors in
the Netherlands to intervene actively to shorten a patient's life, without
fear of legal sanction, if specific conditions are satisfied. These conditions
are described below.
By virtue of an agreement between the Dutch Ministry of Justice and
the Royal Dutch Medical Association, since November 1990 a doctor has
been guaranteed immunity from prosecution under Articles 293 and 294 if
the doctor has complied with a number of 'rules of careful practice'.
These rules comprise a number of substantive and procedural requirements.(134)
The substantive requirements are based on guidelines developed
in 1984 by the Royal Dutch Medical Association. To comply with these requirements,
the doctor must ensure that:
- the request for euthanasia(135) or physician-assisted suicide is made
by the patient and is voluntary.
- the request is well-considered - the patient has adequate information
about his or her medical condition, about the prognosis and about alternative
treatments; and the patient has considered alternative solutions but
these alternatives are ineffective, unreasonable or not acceptable to
the patient.
- the request is durable and persistent.
- the patient's situation entails unbearable suffering with no prospect
of improvement. The patient need not be terminally ill to satisfy this
requirement.
The procedural requirements are as follows:
- euthanasia must be performed by a doctor.
- before the doctor assists the patient, the doctor must consult a second
doctor.(136)
- the doctor must keep a full written record of the case.
- the death must be reported to the prosecutorial authorities as a case
of euthanasia or physician-assisted suicide, not as a case of death
by natural cause.
Where a death is reported as a case of euthanasia or physician-assisted
suicide, the doctor must complete a form containing a list of questions
relating to the death. The questions assess whether the doctor has complied
with the 'rules of careful practice'.
This notification procedure was given formal legal status by a recent
amendment to the Law on the Disposal of Corpses. The Dutch Parliament
passed this amendment in late 1993 and it came into effect on 1 June 1994.
Very few reported cases of physician-assisted suicide or active voluntary
euthanasia in the Netherlands result in a criminal prosecution. Moreover,
if a prosecution is initiated under Article 293 or 294 of the Penal Code,
the accused doctor will not be convicted if the court concludes that the
defence of 'necessity' should be invoked.
Article 40 of the Penal Code provides for a defence to criminal charges
that incorporates the notion of noodtoestand or '(situation of)
necessity'(137):
Noodtoestand refers to the situation of the patient's
dire distress, wherein an ethical dilemma and conflict of interests arise,
resulting in a decision by the physician to break the law in the interest
of what is considered a higher good.(138)
The Dutch courts have determined that the defence of necessity will
apply, to protect a doctor from criminal liability in this context, if
a number of criteria are satisfied. There are substantial similarities
between these criteria and the 'rules of careful practice' that enable
doctors who adhere to them to avoid prosecution in the first place.
The criteria that enable the defence of necessity to apply are:(139)
- The request for euthanasia or physician-assisted suicide must come
only from the patient and must be entirely free and voluntary.
- The patient's request must be well considered, durable and persistent.
- The patient must be experiencing intolerable suffering, with no prospect
of improvement. The patient need not be suffering from a terminal illness.
The suffering need not necessarily be physical suffering.(140)
- Euthanasia or physician-assisted suicide must be a last resort. Other
alternatives to alleviate the patient's situation must have been considered
and found wanting.
- Euthanasia must be performed by a physician. The case law establishes
that the defence of necessity cannot be invoked in this context by another
health care professional (such as a nurse).(141)
- The physician must consult with an independent physician colleague
who has experience in this field.(142)
In 1990 the Dutch Government set up the Remmelink Commission
to investigate 'the practice of action and inaction by a doctor that may
lead to the end of a patient's life at the patient's explicit and serious
request or otherwise'. The Remmelink Commission therefore collected information
about the practice both of euthanasia - strictly defined to refer to the
deliberate termination of another's life at his or her request - and of
other medical decisions at the end of life. As part of its inquiries,
the Remmelink Commission ordered the first empirical study of all medical
decisions at the end of life. The study was led by Dr P. Van der Maas
of the Erasmus University in Rotterdam. The study found that in 1990 in
the Netherlands:
- there were 2 300 cases of active voluntary euthanasia, representing
1.8 per cent of all deaths.(143)
- there were 400 cases of physician-assisted suicide, representing 0.3
per cent of all deaths.(144)
- there were 22 500 cases where the patient had died after the administration
of drugs to alleviate pain and symptoms in such dosages that the risk
of shortening the patient's life was considerable. This represented
17.5 per cent of all deaths.
In 6 per cent of these cases life-termination was the primary goal and
in the remainder it was the secondary goal.
In about 40 per cent of these cases the decision to increase drug dosages
and the possibility that this might hasten death had been discussed with
the patient. In 73 per cent of the cases where these matters had not been
discussed with the patient, the patient was incompetent.(145)
- there were 22 500 cases where death had resulted from non-treatment
decisions (ie withdrawal or withholding of medical treatment), representing
17.5 per cent of all deaths.
In 30 per cent of these cases the non-treatment decision had been discussed
with the patient. In 62 per cent of these cases it had not. In 88 per
cent of all cases where the non-treatment decision had not been discussed
with the patient, the patient was incompetent.(146)
- there were 1 000 cases where a doctor had deliberately ended the life
of a patient without a clear and explicit request from the patient.
This represented 0.8 per cent of all deaths.
The data relating to these deaths indicated the following:
In more than half of these cases the decision had been discussed with
the patient or the patient had in a previous phase of his or her illness
expressed a wish for euthanasia should suffering become unbearable. In
other cases, possibly with a few exceptions, the patients were near to
death and clearly suffering grievously, yet verbal contact had become
impossible The decision to hasten death was then nearly always taken after
consultation with the family, nurses, or one or more colleagues. In most
cases the amount of time by which, according to the physician, life had
been shortened was a few hours or days only.(147)
The same study also found that:
- Each year there are about 9 000 explicit requests for physician-assisted
suicide or active voluntary euthanasia in the Netherlands. Of these
requests, less than one third are agreed to. The remainder do not result
in physician-assisted suicide or active voluntary euthanasia, because
either alternatives are found that make the patient change his or her
mind or the patient dies before any action has been taken.(148)
- 54 per cent of all doctors (and 62 per cent of general practitioners)
involved in the research said they had practised active voluntary euthanasia
or assisted suicide at the explicit and persistent request of a patient.
34 per cent said they had never practised active voluntary euthanasia
or assisted suicide but could conceive of situations in which they would
be prepared to do so.(149)
- In cases where death had been caused by physician-assisted suicide
or active voluntary euthanasia, the patient had mentioned the following
reasons for making the request: loss of dignity (57 per cent of cases),
pain (46 per cent), unworthy dying (46 per cent), being dependent on
others (33 per cent), or tiredness of life (23 per cent). Pain was the
only reason mentioned for making the request in less than 6 per cent
of cases.(150)
The Remmelink Commission also obtained data from an independent study
conducted by Dr G. Van der Wal of the Medical Inspectorate of Health for
North Holland. The results of this study confirmed many of the findings
of Van der Maas and his colleagues.(151)
The Remmelink Commission published its report in September 1991.(152)
The recommendations in this report led to the legislative reform that
came into effect in 1994.
The empirical data obtained by the Remmelink Commission has been cited
in support of very different conclusions. Some commentators have argued
that the data, particularly the finding that 1 000 deaths took place without
the patient's explicit and persistent request, supports the 'slippery
slope' argument and shows that tolerance for physician-assisted suicide
and active voluntary euthanasia inevitably results in the practice of
involuntary euthanasia.(153) Other commentators have argued that, to the
contrary, the Dutch findings show that physician-assisted suicide and
active voluntary euthanasia can be safely regulated. Some commentators
have cautioned against misinterpreting the findings of the Remmelink research:
The Dutch data on medical practices which shortens life, in the cases
of non-competent or of competent but not-consulted patients, are indeed
a matter of concern... [but there] really is not a shred of evidence that
the frequency of this sort of behaviour is higher in the Netherlands than,
for example, in the United States; the only thing that is clear is that
more is known about it in the Netherlands. In short, there is no reason
to assume ... a causal relationship between limited legalisation of euthanasia
and 'lack of control' over other sorts of medical behaviour.(154)
In June 1994 the Supreme Court of the Netherlands delivered its judgment
in the Chabot case.(155) The case involved the prosecution of a
psychiatrist who had assisted the suicide of one of his patients. The
patient, Ms B, was not suffering from any physical illness. She was a
50 year old woman who had a 20 year history of depression. Her very unhappy
personal life, including a violent marriage and the death of one of her
sons by suicide and of the other from cancer, had resulted in her abandoning
any wish to go on living. Psychiatric treatment had not helped her and
she had made at least one attempt at committing suicide. For several years
she had made it known to other people - including her sister, friends
and her family doctor - that she wished to die, 'but in a humane way which
would not confront others involuntarily with her suicide'.(156) In 1991
Ms B approached the Dutch Federation for Voluntary Euthanasia who referred
her to the defendant, Dr Chabot. He concluded that she was not suffering
from a psychiatric illness or a major depressive episode, but rather that
she had an adjustment disorder 'consisting of a depressed mood, without
psychotic signs' arising from bereavement. Her condition was in principle
treatable but the chance of success was small. Dr Chabot tried to persuade
Ms B to accept some form of therapy but she refused. She asked him instead
to assist her suicide.
Dr Chabot was of the opinion that Ms B was experiencing intense, long-term
psychic suffering with no prospect of improvement. He was also of the
opinion that her explicit and clearly expressed request for assistance
with suicide was well-considered, and based on understanding of her situation
and the consequences of her decision. He further believed that her rejection
of therapy was well-considered. He consulted seven independent experts(157)
who all agreed with his assessment of Ms B's situation. None of the doctors
consulted by Dr Chabot examined Ms B.
In September 1991, Dr Chabot helped Ms B commit suicide by prescribing
a lethal dose of drugs. She took these drugs in the presence of Dr Chabot,
a general practitioner and a friend. Dr Chabot reported her death to the
local coroner as death by physician-assisted suicide. He was prosecuted
under Article 294 of the Penal Code. In April 1993 the District Court
in Assen applied the defence of necessity and found him not guilty of
this offence. The Court of Appeals in Leeuwarden upheld the trial court's
decision in September 1993. The Dutch Supreme Court, however, overturned
the rulings of the lower courts. It concluded that the defence of necessity
should have been rejected in this case and accordingly found Dr Chabot
guilty as charged.
In the course of its judgment the Supreme Court stated the following:
- the necessity defence is not limited to cases where the patient is
in the terminal phase of an illness of somatic (physical) origin.
- the necessity defence can also apply where a patient's suffering is
entirely of a non-somatic origin (ie is mental suffering only, rather
than suffering due to physical pain). A psychiatric patient's wish to
die therefore can be legally considered the result of a competent and
voluntary judgement.(158) Further, the suffering of a psychiatric patient
can be legally considered 'lacking any prospect for improvement' if
the patient has refused a realistic therapeutic alternative.
- the courts must approach cases where the necessity defence is said
to be based on non-somatic suffering 'with exceptional care'. Accordingly,
the defence cannot be invoked in these cases unless the patient has
been examined by an independent colleague/medical expert.(159)
Dr Chabot was convicted under Article 294, therefore, not because the
defence of necessity could not apply in a situation where a patient's
suffering was of the kind experienced by Ms B. Rather it was because he
had not ensured that Ms B was actually examined by another doctor before
he assisted her suicide.
Despite finding Dr Chabot guilty, in view of 'the person of the defendant
and the circumstances in which the offence was committed', the Supreme
Court declined to impose any punishment. In February 1995, however, Dr
Chabot was reprimanded by a Medical Disciplinary Tribunal which concluded
that his behaviour had 'undermined confidence in the medical profession'.(160)
In September 1994 the Dutch government revised its prosecutorial guidelines
to reflect the holdings of the Supreme Court. If a patient has a psychiatric
disorder, the guidelines now require the doctor who receives the request
for physician-assisted suicide or active voluntary euthanasia to have
the patient examined by at least two other doctors, one of whom must be
a psychiatrist. The government also responded to the Supreme Court's ruling
by dropping 11 of 15 pending prosecutions in relation to cases where the
patient was not in the 'terminal phase' of a somatic illness.(161)
Like many other developments in the Netherlands relating to the regulation
of the practice of euthanasia, the Chabot case has been used to
found arguments that lead to opposing conclusions. Some commentators view
the case as evidence that once the law begins to allow doctors to perform
physician-assisted suicide and active voluntary euthanasia, even in strictly
and narrowly defined circumstances, the categories of patients who may
be legally euthanased will inevitably expand. Thus, it is claimed, the
Chabot case is 'another step down the slippery slope' towards a
situation where euthanasia is tolerated and practised in an (even more)
unacceptably wide range of circumstances, including situations where the
patient has not requested death.
Other commentators acknowledge that the Chabot case raises the
real possibility that Dutch courts may in the future 'hold assistance
with suicide justifiable in several categories of cases in which the person
concerned is not "sick" at all (eg the case of very elderly
persons who are incapacitated in various ways and simply "tired of
life")' and that '[f]rom there it is only a small additional step
to the case in which the person concerned is not suffering at all at the
time the request is made but, in anticipation of coming deterioration,
wants to be in a position to choose the time of death in advance of becoming
incapacitated and dependent'.(162) They reject the claim, however, that
such developments necessarily will result in an increase in the incidence
of involuntary euthanasia. Some commentators also describe the Chabot
case as a development that tightens the restrictions on the
practice of euthanasia in the Netherlands. They argue that the Supreme
Court's ruling clarifies the circumstances in which it is not acceptable
(as well as the circumstances in which it is acceptable) for a
doctor to help a psychiatric patient commit suicide.
Since the Supreme Court ruling in the Chabot case, the Dutch
courts have inspired further controversy in two cases in which doctors
ended the lives of severely disabled infants, who were in severe pain
and were expected to die within months. In April 1995 the District Court
in Alkmaar found Doctor Henk Prins formally guilty of the murder in 1993
of a baby girl who had been born with a partly formed brain and spina
bifida, by giving her a lethal injection after consultation with her parents
and other doctors. The court refused, however, to punish the doctor. In
November 1995 the Amsterdam Appeals Court affirmed the lower court's decision.(163)
It did so on the basis that the doctor had adhered closely to the guidelines
that regulate active voluntary euthanasia, had acted at the explicit
request of the child's parents, and generally had behaved 'according to
scientifically and medically responsible judgments, and in line with ethical
norms'. A week later, the District Court in Groningen reached an almost
identical conclusion in another case where a doctor had been charged with
murder for administering a lethal injection to a severely disabled baby.(164)
Both cases were reported as 'the latest in a series of legal precedents
that are slowly eroding the Netherlands' strict limitations on euthanasia'.
Both cases are on appeal to the Supreme Court of the Netherlands as test
cases.
In August 1995, the Royal Dutch Medical Association (Koninklijke Nederlandsche
Maatschappij tot bevordering der Geneeskunst, KNMG) adopted new guidelines
for doctors who choose to accede to a patient's request for the hastening
of death. Under the new guidelines patients must self-administer drugs
whenever possible. The new guidelines also clarify a doctor's obligation
to consult a second doctor before proceeding with euthanasia, emphasising
the need for this consultation to take place with an experienced doctor
who has no professional family relationship with either the patient or
the first doctor. The new guidelines also affirm that a doctor is under
no obligation to perform euthanasia, but state that a doctor who is opposed
on principle to euthanasia should make his or her views known as soon
as possible to a patient who raises the subject, and should help the patient
find another doctor who is willing to assist.(165)
These new guidelines have not yet been incorporated by the Dutch Parliament
into the official reporting procedure, that confirms a doctor's compliance
with the 'rules of careful practice' and underpins the prosecutorial policy
discussed above. The Dutch Parliament may consider doing so later this
year, however, when it considers the results of more Remmelink-type research
that is currently being undertaken to assess the operation of this reporting
procedure. The researchers - Van der Wal and Van der Maas - are expected
to release their report in October or November 1996.
In January 1996, the Dutch Federation for Voluntary Euthanasia (Nederlandse
Verniging voor Vrijwillige Euthanasia, NVVE) released a proposal to change
the law relating to euthanasia in the Netherlands. The proposal recommends
that euthanasia should not be punishable by law unless it is proved that
a doctor has not adhered to specified criteria; rather than the
current situation, where euthanasia technically remains illegal unless
it is shown that a doctor has adhered to specified criteria. Media
statements made around the same time by the Dutch Minister for Justice
indicated her support for this kind of change to the law. The Dutch Parliament
expressed concern at her statements, on the basis that they inappropriately
preempted the Parliament's forthcoming assessment of the findings of the
empirical research that is currently being done on the euthanasia reporting
procedure.
In the United States of America, the laws in forty-four states, the
District of Columbia and two territories prohibit or condemn assisted
suicide, including physician-assisted suicide.(166)
In recent years there have been a number of unsuccessful attempts to
introduce state legislative reform to allow a doctor to comply with a
patient's request for intervention to hasten the patient's death. These
attempts have included Initiative 119 in the state of Washington, which
proposed the legalisation of both physician-assisted suicide and active
voluntary euthanasia, for competent patients who were expected to die
within six months. Initiative 119 was rejected 54%:46% by voters at a
state referendum that took place in November 1991. In 1992, Californian
voters rejected a similar proposal known as Proposition 161, also by a
majority of 54%: 46%.
Concern at these developments prompted the establishment of State task
forces to examine whether the law in this area should be reformed. The
May 1994 report of the New York State Task Force on Life and Law recommended
retaining the criminal prohibition on assisted suicide in that State.(167)
By contrast, the June 1994 report of the Michigan Commission on Death
and Dying recommended decriminalising physician-assisted suicide under
some circumstances.
To date, the only jurisdiction in the United States of America that
has passed legislation expressly permitting a doctor to intervene to hasten
a patient's death is the state of Oregon. The Oregon legislation was passed
in November 1994 and permits physician-assisted suicide. This legislation
is discussed in more detail below.
Attempts continue in other States to enact legislative reform similar
to the new Oregon law.(168) Attempts also continue, however, to introduce
legislation specifically prohibiting assisted suicide in states where
such a prohibition is not yet in statutory form.(169)
US courts have also recently begun to address the issue of physician-assisted
suicide. Two important cases examining the constitutional validity of
statutes prohibiting physician-assisted suicide - Compassion in Dying
v. State of Washington(170) and Quill v. Vacco et al(171) -
were decided by federal Courts of Appeal earlier this year. Both cases
are discussed further below.
The Oregon Death With Dignity Act (also known as 'Measure 16')
was passed as the result of voter approval of Ballot Measure 16 in the
Oregon general election in November 1994. The question posed by Ballot
Measure 16 was: 'Shall law allow terminally ill adult patients voluntary
informed choice to obtain physician's prescription for drugs to end life?'.
This question was answered in the affirmative by 51% of voters and in
the negative by 49% of voters.
The Oregon Death With Dignity Act authorises a specific kind
of physician-assisted suicide: it allows a patient to obtain a physician's
prescription for drugs to end the patient's life. Unlike the Northern
Territory's Rights of the Terminally Ill Act 1995, however, the
Oregon legislation does not also permit a doctor to carry out active voluntary
euthanasia. Under the Oregon Death With Dignity Act, only the patient
may administer the medication to end his or her life; the legislation
does not authorise 'a physician or any other person to end a patient's
life by lethal injection, mercy killing or active euthanasia'.
Health care providers who assist a patient to die by prescribing lethal
drugs in 'good faith compliance' with the Oregon legislation are immune
from civil and criminal liability and from professional disciplinary action.
The following conditions all must be satisfied before a patient can be
lawfully assisted to die:
- The patient must be a resident of Oregon.
- The patient must be at least 18 years old.
- The patient must be suffering from a 'terminal disease'. This is defined
as 'an incurable and irreversible disease that has been medically confirmed
and will, within reasonable medical judgment, produce death within six
months'.
- The patient must have 'voluntarily expressed his or her wish to die'.
- The patient's decision must be sufficiently informed. This means that
it is 'based on an appreciation of the relevant facts' and after being
fully informed by the attending physician of: the patient's medical
diagnosis and prognosis; the risks and results of taking the medication;
and the feasible alternatives, including comfort care, hospice care
and pain control.
- Two doctors must verify that the patient has a terminal disease, is
capable, and has made a voluntary and informed decision. These doctors
must be 'the attending physician' (the doctor with primary responsibility
for the patient's care and treatment of the patient's terminal disease)
and 'the consulting physician' (a doctor qualified by specialty or experience
to make a professional diagnosis and prognosis regarding the patient's
disease).
- The patient must not be suffering from 'a psychiatric or psychological
disorder, or depression causing impaired judgment'. If either the attending
physician or the consulting physician believes the patient may be so
suffering, that doctor is obliged to refer the patient for counselling
by a state licensed psychiatrist or psychologist. No medication to end
the patient's life can be prescribed until the psychiatrist or psychologist
determines that the patient is not suffering in this way.
- The patient must make two oral requests, and one written request in
the form prescribed by the legislation.
- The written request must be witnessed by two people attesting
that the patient is acting voluntarily. At least one witness must
not be a relative or heir of the patient.
- The second oral request must be made to the attending physician
no sooner than 15 days after the first oral request. When the patient
makes the second oral request, the attending physician must offer
the patient the opportunity to rescind the request.
- The prescription for medication to end the patient's life must not
be written sooner than 15 days after the patient's initial oral request
and 48 hours after the patient's written request. When the prescription
is written, the attending physician must offer the patient the opportunity
to rescind the request.
- The attending physician must inform the patient that the patient may
rescind the request at any time and in any manner. Such rescission by
a patient will be effective 'without regard to his or her mental state'.
- The attending physician must ask the patient to notify next of kin
about the request. The patient, however, is under no obligation to do
so.
- The doctors must document in the patient's medical record that all
requirements under the legislation have been met. Although these records
shall not be available for inspection by the public, the Oregon State
Health Division must annually review a sample of these records and produce
statistical reports of information derived from its reviews.
This legislation does not impose any duty upon a doctor to participate
in the provision of medication to end a patient's life. If a doctor is
unable or unwilling to so participate, however, and the patient transfers
his or her care to another doctor, the legislation specifies that the
first doctor must comply with the patient's request to transfer a copy
of relevant medical records to the new doctor.
The Oregon Death With Dignity Act has not yet come into operation
as its operation has been suspended by injunction pending the results
of a challenge to its constitutional validity. This legal challenge was
initiated in November 1994 by a group of doctors, patients and operators
of residential care facilities. In August 1995 the Oregon Federal District
Court held that the legislation was unconstitutional and therefore invalid.(172)
The District Court concluded that the legislation violated the Equal Protection
Clause of the Fourteenth Amendment to the US Constitution - which prohibits
a state from denying 'to any person within its jurisdiction the equal
protection of the law', unless the denial is justified according to a
legitimate state interest. The District Court stated that the Fourteenth
Amendment was violated because the legislation withheld from terminally
ill persons the same legal protections from suicide that apply to other
citizens of Oregon. The court concluded that this withholding was not
rationally related to any legitimate state interest and therefore was
not justified. The legislation was said to lack sufficient safeguards
to ensure that the means to commit suicide was only provided in response
to a voluntary request by a competent, terminally ill patient.
The District Court based its conclusion on the following criticisms
of the legislation:
- The procedure for determining whether a terminally ill patient was
competent to choose physician-assisted suicide was insufficiently rigorous
to protect incompetent patients from being helped to commit suicide.
The legislation did not require mental and social evaluations of competency
by appropriately trained and independently appointed professionals -
instead, too much reliance was placed on the assessment of the patient's
mental state by the attending physician and consulting physician, neither
of whom was required to be a psychiatrist, psychologist or counsellor.
Nor did the legislation contain a mechanism for independent review of
the patient's allegedly competent request. Nor did it contain the kind
of safeguards used in comparable mental health situations, such as cases
involving the detention of the mentally ill, to distinguish between
competent and incompetent patients.
- The legislation protected a doctor from liability whenever the doctor's
actions were taken 'in good faith'. One effect of this would be to allow
a doctor to prescribe a lethal drug dose after negligently misdiagnosing
a patient's condition or competence, provided this was done 'in good
faith'. This would create an unjustified exception to the general legal
requirement that doctors meet objectively reasonable standards when
providing medical care to patients.
- The legislation did not require that the prescribed drugs be taken
in the presence of a physician, at any particular time, or in any particular
manner. The legislation therefore did nothing to ensure that the final
decision to commit suicide by taking the lethal drugs - rather than
the decision to obtain the prescription of those drugs - would be made
voluntarily by a competent patient.
The decision of the District Court in this case is currently on appeal
to the United States Court of Appeals for the Ninth Circuit. The result
of that appeal may be influenced by the outcome in the two federal Court
of Appeal cases discussed immediately below.(173)
The question of whether a statutory prohibition on physician-assisted
suicide violates an individual patient's rights under the United States
Constitution was considered for the first time by a federal Court of Appeals
in the recent case Compassion in Dying v State of Washington.(174)
The judgement in this case was delivered on 6 March 1996.
The case involved a challenge to the constitutional validity of a provision
of a Washington statute that made it a crime to aid another person to
attempt suicide. The parties who initiated the action - four doctors,
three terminally ill patients and a Washington non-profit organisation
called Compassion in Dying - contended that this statutory provision was
invalid to the extent that it prohibited doctors from prescribing life-ending
medication for use by terminally ill, competent adults who wish to hasten
their own deaths. They claimed the statutory provision was invalid on
two bases:
- The provision impermissibly prevented the exercise by terminally ill
patients of a constitutionally-protected liberty interest, in violation
of the Due Process Clause of the Fourteenth Amendment to the US Constitution.
- The Due Process Clause prohibits a state from depriving 'any person
of life, liberty or property without due process of law', unless
the deprivation is justified according to a legitimate state interest.
The U.S. Supreme Court has held that the 'liberty interest' protected
under this clause gives rise to a constitutional right to privacy.
The Supreme Court has used this right to restrict the power of state
governments to interfere with personal decision-making in relation
to matters such as contraception,(175) marriage,(176) abortion,(177)
family relationships,(178) child rearing and education.(179) The
Supreme Court has offered the following justification for constitutional
protection of these 'private' decisions:
These matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and autonomy,
are central to the liberty protected by the Fourteenth Amendment. At the
heart of liberty is the right to define one's own concept of existence
of meaning, of the universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of personhood wer | 
