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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 were
they formed under compulsion of the State.(180)
- The provision impermissibly distinguished between similarly situated
terminally ill patients, in violation of the Equal Protection Clause
of the Fourteenth Amendment to the US Constitution. As explained above,
the Equal Protection Clause 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.
- By a majority of 8:3, the federal Court of Appeals for the Ninth Circuit
agreed that the Washington statutory provision was unconstitutional
because it violated the Due Process Clause.
The majority judges reached this conclusion via a two stage process
of legal analysis. First, they identified a liberty interest in choosing
the time and manner of one's own death. They also described this interest
as a "constitutionally recognised 'right to die'". They deduced
the existence of this liberty interest after examining historical attitudes
towards suicide, current societal attitudes towards physician-assisted
suicide and the manner of death, and previous Supreme Court decisions
addressing the scope of the liberty interest under the Due Process Clause.
The majority judges believed that two of these Supreme Court decisions
in particular were 'fully persuasive' as to the existence of a due process
liberty interest in controlling the time and manner of one's own death.
In one of these cases, the 1992 case Planned Parenthood v. Casey(181)
the Supreme Court reaffirmed a woman's liberty interest in deciding whether
or not to have an abortion, on the basis that such a decision was central
to her personal dignity and autonomy. The majority judges in the instant
case concluded that a terminally ill person's decision concerning how
and when to die is at least as central to personal dignity and autonomy
as the abortion decision. It considered that 'no decision is more painful,
delicate, personal, important, or final than the decision how and when
one's life shall end'.
The other Supreme Court case on which the majority relied was the 1990
case Cruzan v. Director, Missouri Department of Health.(182) That
case involved a constitutional challenge to a Missouri statute prescribing
that life-sustaining treatment, including artificial feeding and hydration,
could not be withdrawn from a legally incompetent patient without 'clear
and convincing evidence' that this is what the patient would have wanted
in the circumstances. The Supreme Court in Cruzan held by a majority
of 5:4 that this restriction did not violate patients' rights under the
due process clause. In reaching this conclusion, however, four of the
five majority judges averted to the existence of a competent person's
constitutionally protected right to refuse any kind of unwanted medical
treatment.(183) One of the majority judges went further and explicitly
affirmed the existence of such an interest,(184) as did all four of the
dissenting judges.(185)
The majority of the federal Court of Appeals in Compassion in Dying
v. State of Washington stated that it was 'clear that Cruzan stands
for the proposition that there is a due process liberty interest in rejecting
unwanted medical treatment, including the provision of food and water
by artificial means'. As the Supreme Court in Cruzan had also recognised
that refusal of treatment such as artificial feeding and hydration would
inevitably lead to death, the Court of Appeals went on to conclude that
Cruzan 'necessarily recognises a liberty interest in hastening
one's own death'.(186)
Having identified a due process liberty interest in choosing the time
and manner of one's own death, the majority acknowledged that this did
not mean an individual has 'a concomitant right to exercise that interest
in all circumstances or to do so free from state regulation'. [p10] The
second part of the majority's legal analysis therefore was an examination
of whether Washington's statutory ban on assisting suicide was a constitutionally
justified restriction on the exercise of the liberty interest.
The majority assessed the validity of the restriction by weighing the
liberty interest of the individual against six countervailing and legitimate
state interests.(187) These were:
- the state's general interest in preserving life
- The majority stated that, even though the protection of life is
one of the most important functions of the state, this interest
is not absolute. American law already recognised that the state's
interest in preserving life is 'dramatically diminished' if the
person it seeks to protect is terminally ill, or permanently comatose,
and has expressed a wish (either himself or through a duly appointed
representative) that he be permitted to die without further medical
treatment. Accordingly, 'while the state may still seek to prolong
the lives of terminally ill or comatose patients or, more likely,
to enact regulations that will safeguard the manner in which decisions
to hasten death are made, the strength of the state's interest is
substantially reduced in such circumstances'.
- the state's more specific interest in preventing suicide
- The majority felt that, while the state has a legitimate interest
in preventing suicide in general, that interest, like the state's
interest in preserving life, is substantially diminished in the
case of terminally ill, competent adults who wish to die. The majority
concluded this because, unlike many other people who might wish
to commit suicide, terminally ill adults cannot be restored to a
state of physical and mental well-being but can only be maintained
in a debilitated and deteriorating state.
- The majority noted that the state had already recognised this
by allowing competent, terminally ill patients to choose to hasten
death by instructing a doctor to cease administering life-sustaining
medical treatment (including artificial food and water), or by asking
a doctor to administer death-inducing drugs for pain relief. The
majority did not consider that there was any difference in kind,
for either constitutional or ethical purposes, between physician-assisted
suicide and these other forms of life-ending medical conduct that
are not subject to legal or moral sanction. Any difference was one
of degree only, and that difference was not enough to make the state's
interest in preventing suicide substantially stronger in the case
of physician-assisted suicide than it was in the case of other forms
of death-hastening medical assistance.
- The majority went further, and doubted whether the state's interest
in preventing suicide was even implicated in this case. It questioned
whether deaths involving 'physician-assisted suicide' should be
classified as suicides at all, when other situations involving a
decision by a terminally ill patient to hasten by medical means
a death already in process (such as deaths resulting from refusal
of life-sustaining medical treatment) were not so classified.(188)
- The majority also referred to evidence that prohibiting assisted
suicide in order to deter suicide could be counter-productive. The
majority felt that some terminally ill patients would kill themselves
before they became physically incapacitated, in order to avoid a
situation where they were no longer able to end their own lives
and where the law would not allow the medical profession to help
them die in the manner of their choosing.
- the state's interest in avoiding the involvement of third parties
and in precluding the use of arbitrary, unfair or undue influence
- The majority acknowledged that a state has a legitimate interest
in prohibiting assisted suicide, on the grounds that allowing others
to help may increase the incidence of suicide, undermine society's
commitment to the sanctity of life, and adversely affect the person
providing the assistance. It felt, however, that this interest was
at its weakest when the assistance was provided by or under direction
of a doctor and the person being assisted was terminally ill.
- The majority also addressed the concern that allowing physician-assisted
suicide would bring vulnerable people under undue pressure to end
their lives. It dismissed as 'ludicrous' the argument that the poor,
members of minority groups and the physically disabled would be
pressured into committing physician-assisted suicide. It did consider,
however, that there was a valid and serious concern that their lives
needed safeguarding from 'callous, financially burdened or self-interested'
relatives or others who have influence over them. At the same time,
the majority was reluctant to say that it is improper for a competent
and terminally ill adult to take the economic welfare of their loved
ones into consideration when deciding when to die, particularly
in 'a society in which the costs of protracted health care can be
so exorbitant' and there is a lack of universal access to health
care.
- The majority also felt that the involvement of a doctor in the
decision-making process would provide an added safeguard against
attempts by relatives to coerce the vulnerable to end their lives.
The majority expressed the gravest doubts that doctors would assist
a patient to die if there were any serious doubt about the patient's
true wishes, as to do so would be 'contrary to the physicians' fundamental
training, their conservative nature, and the ethics of their profession'.
- The majority nonetheless acknowledged that, while steps can be
taken to minimise substantially the danger of patients being subject
to undue influence, this danger cannot be wholly eliminated. The
majority accordingly concluded that this state interest is of 'more
than minimal weight' in this context, and should be treated seriously
in balancing the competing interests of state and individual.
- the state's interest in protecting children, other family members
and loved ones
- The majority considered that the state's legitimate interest in
safeguarding the interests of innocent third parties, such as minor
children and other people dependent on a person who wishes to commit
suicide, was reduced to almost negligible weight when that person
is terminally ill. It considered that it would harm rather than
further the interests of these third parties to witness a loved
one being forced to suffer an unnecessarily painful and protracted
death.
- the state's interest in protecting the integrity of the medical profession.
- The majority did not accept that allowing doctors to engage in
physician-assisted suicide would be at odds with their role as healers
and thus erode their professional integrity. It considered that,
to the contrary, permitting physician-assisted suicide would enhance
the integrity of the medical profession. In the opinion of the majority,
allowing doctors to help terminally ill patients hasten their deaths
in this way, without the current need to act covertly and risk criminal
sanction, would enable doctors better to fulfil their duty to help
the sick. The majority noted that this opinion was shared by the
growing number of doctors who openly support physician-assisted
suicide.
- The majority also concluded that the personal integrity of individual
doctors would not be compromised by decriminalising physician-assisted
suicide. Decriminalisation would instead enable doctors, as well
as patients, to make decisions and act in a way consistent with
their individual moral beliefs. Doctors whose personal beliefs would
prevent them from assisting patients in this way would be free not
to do so; and doctors whose personal beliefs would allow or require
them to assist patients in this way similarly would be free to follow
the dictates of their conscience. The majority felt that terminally
ill patients could only benefit from the opportunity to choose to
receive medical care from someone 'whose view of the physician's
role comports with theirs'.
- the state's interest in avoiding the risk that legal recognition of
a 'right to die' would lead to abuse and unacceptable extensions of
that right
- The majority examined the argument that recognising that competent,
terminally ill patients have a right to physician-assisted suicide
will place courts and society on a 'slippery slope', inevitably
resulting in a situation where people are put to death without their
consent.
- The majority rejected this argument as 'nihilistic' and unsupported
by empirical evidence. It rejected assertions that the experience
in the Netherlands supports the 'slippery slope' argument. It conceded
that recognition of any right creates the possibility of abuse,
but pointed out that the Supreme Court 'has never refused to recognise
a substantive due process liberty right or interest merely because
there were difficulties in determining when and how to limit its
exercise or because others might someday attempt to use it improperly'.
- The majority emphasised that in this case it was only being asked
to determine the narrow question of whether it was unconstitutional
to prohibit doctors prescribing lethal medication for use by terminally
ill patients who wished to hasten their death. It acknowledged,
however, that legal recognition of a terminally ill patient's right
to choose physician-assisted suicide might logically lead, in subsequent
cases, to legal recognition of a terminally ill patient's right
to choose physician-aid-in-dying. It did not consider, however,
that such recognition necessarily would lead to courts approving
the practice of ending people's lives without their consent:
We would be less than candid ... if we did not acknowledge that for
present purposes we view the critical line in right-to-die cases as the
one between the voluntary and involuntary termination of an individual's
life. In the first case - volitional death - the physician is aiding or
assisting a patient who wishes to exercise a liberty interest, and in
the other - involuntary death - another person acting on his own behalf,
or, in some instances society's, is determining that an individual's life
should no longer continue. We consider it less important who administers
the medication than who determines whether the terminally ill person's
life shall end. [p16]
The majority concluded that all these state interests were at their
weakest, and the liberty interest in choosing the time and manner and
one's death was at its strongest, in the case of competent terminally
ill individuals. The majority conceded that the state has a particularly
strong interest in protecting individuals who are making life and death
decisions from undue influence and other forms of abuse. It concluded
that the state therefore has a wide power to regulate the exercise by
a terminally ill person of the liberty interest in choosing the time and
manner of one's death, but that this power does not allow the state to
ban its exercise completely. The Washington statute prohibiting physician-assisted
suicide did effectively prevent terminally ill people from choosing the
time and manner of their own deaths, because most terminally ill people
could not hasten their own deaths without the assistance of a physician.
The Washington statute therefore imposed an unacceptable constraint on
the liberty interest of terminally ill, competent adults who wished to
hasten their deaths using medication prescribed by their physicians. To
the extent that the statue imposed such a constraint, it violated the
Due Process Clause and therefore was unconstitutional.
Having reached this conclusion, the majority considered it unnecessary
to examine the argument that the Washington statute also violated the
Equal Protection Clause. The majority stated, however, that it did not
agree with the reasoning of the District Court of Oregon in Lee v.
State of Oregon that lead that court to conclude that the Oregon Death
With Dignity Act violated the Equal Protection Clause.(189)
The three dissenting judges concluded that the Washington statute violated
neither the Due Process Clause nor the Equal Protection Clause. In relation
to the former, they denied that the statute infringed a liberty interest
in choosing to commit suicide. One dissenting judge categorically denied
that there was any such interest. Another dissenting judge doubted that
there was any such interest, but did not finally decide the question.
The third dissenting judge accepted that there was a liberty interest
in choosing to commit suicide, but characterised it as an interest of
much less strength than the liberty interest in 'choosing the time and
manner of one's own death' relied upon by the majority judges.(190) The
dissenting judges also concluded that the state interests competing against
an individual's exercise of a liberty interest in this context were of
much greater force than they were considered to be by the majority. The
dissenting judges discussed four state interests:
- the state's interest in the preservation of life
- The dissenting judges asserted that this state interest remains
'at full strength' in the case of a terminally ill person who wishes
to commit assisted suicide. It was their opinion that the state's
interest in preserving life is only weakened where continued medical
treatment would do no more than postpone death, and where a patient
therefore becomes 'nonviable' in the sense that the patient would
die without life-sustaining treatment.
- the state's interest in the prevention of suicide
- The dissenting judges concluded that the state's interest in the
prevention of suicide does not diminish with the onset and advancement
of terminal illness. They based this conclusion on the view that
suicidal tendencies are a manifestation of medical and psychological
suffering, and the state retains a continuing interest in addressing
and relieving that suffering.
- the state's interest in maintaining the integrity of the medical profession
- Physician-assisted suicide was seen by the dissenting judges to
be wholly inconsistent with, and damaging to, the ethical integrity
of the medical profession. They pointed to the fact that the American
Medical Association's Code of Medical Ethics prohibits doctors from
participating in physician-assisted suicide. They also noted that,
aside from criminal sanctions, doctors are subject to professional
sanctions and disciplinary action if they prescribe drugs to their
patients to help them commit suicide.
- the state's interest in protecting the interests of innocent third
parties
- The dissenting judges considered that there was a considerable
risk that the poor, the elderly, the disabled and minorities would
be subject to undue pressure to commit physician-assisted suicide
if it were legalised. This pressure could take the form of direct
coercion or result from the inadequate treatment of pain and suffering.
They considered that no safeguards - apart from maintaining 'a bright-line
rule against physician-assisted suicide' - could adequately protect
these vulnerable groups. They cited the Dutch experience of euthanasia
in support of their conclusion that safeguards could not ensure
that vulnerable patients would not be killed without their knowledge
or consent if physician-assisted suicide were permitted.
- The dissenting judges also expressed a concern that a right to
physician-assisted suicide 'could severely disrupt the economic
interest of the relatives, partners and associates' of patients
who died in this way, as life insurance policies and other methods
of estate planning would not operate if the deceased committed suicide.
The dissenting judges concluded that any liberty interest in committing
suicide, possessed by a competent, terminally ill adult, was legitimately
restricted by the Washington statute. This was because the Washington
statute rationally advanced the four legitimate and strong state interests
identified above.(191)
It is expected that the Supreme Court of the United States will hear
an appeal against the ruling of the Ninth Circuit Court of Appeals in
this case.
Shortly after the decision of the Ninth Circuit Court of Appeals in
Compassion in Dying v. State of Washington, on 2 April 1996 the
Second Circuit Court of Appeals delivered its judgment in Quill v.
Vacco et al. That case also examined the constitutional validity of
a statutory prohibition on physician-assisted suicide.
The provisions under scrutiny in this second case were the parts of
the New York Penal Law that criminalised assisted suicide. The provisions
were alleged to be unconstitutional to the extent that they prohibited
doctors from prescribing lethal medication to be self-administered by
a mentally competent, terminally ill adult in the final stages of terminal
illness. The legal challenge was initiated by three doctors and three
terminally ill patients.
The arguments advanced by the litigants in Quill v. Vacco et al were
similar to those before the court in Compassion in Dying v. State of
Washington. The New York statutory provisions were alleged to be unconstitutional
on the basis that they violated both the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment.
The majority of the Second Circuit Court of Appeals refused to accept
that the New York statutory provisions violated any fundamental liberty
interest under the Due Process Clause - specifically, the asserted right
of competent, terminally ill persons to assisted suicide in the final
stages of their illness. They felt unable to conclude that this right
to assisted suicide could be read into the Constitution, on the basis
that the Supreme Court of the United States had not yet identified this
new right and had also advised restraint in identifying new fundamental
rights.(192)
The two majority judges did accept, however, that the New York statutory
provisions violated the Equal Protection Clause. They stated that these
provisions clearly did not treat similarly situated citizens alike. This
was because the law in New York allowed patients in the final stages of
terminal illness who were attached to life-support systems to hasten their
deaths by directing the removal of that life support, but did not allow
patients who were in a similar situation - except for the previous attachment
of life-support systems - to hasten their death by self-administration
of prescribed drugs. The majority saw no valid difference, for the purposes
of Equal Protection analysis, between the so-called 'passive' assistance
in dying permitted by the law and the so-called 'active' assistance forbidden
by the statutory provisions under scrutiny.
The majority further held that this unequal treatment was not rationally
related to any legitimate state interest. This conclusion also rested
on the fact that New York law allowed patients to hasten their deaths
by ordering the withdrawal of life-sustaining treatment. The majority
argued that if the state considered a patient's choice to hasten death
in that context to be consistent with the interests of the state, it must
also be consistent with those state interests to allow a patient to choose
to hasten death by taking lawfully prescribed medication. These judges
therefore concluded that the New York prohibition on assisted suicide
violated the Equal Protection Clause to the extent that it applied to
mentally competent, terminally-ill patients in the final stages of terminal
illness who wished to self-administer lethal drugs.
The third judge in this case agreed that the New York statutory provisions
should be struck down. His reasoning, however, differed from that of the
majority. He concluded that the constitutional validity of the statutory
prohibition in question was 'highly suspect' - both under the Due Process
Clause and the Equal Protection Clause - but not clearly invalid under
either clause. The constitutional validity of the prohibition depended
largely on the strength of the state interests involved, but the New York
legislature had not provided current and clear statements explaining which
state interests the law aimed to protect. Accordingly, this judge was
prepared to strike down these particular statutory prohibitions as unconstitutional
- but took no position on the constitutional validity of similar provisions
which might be enacted in the future and accompanied by clear explanations
of the aims of the legislators.
An appeal against this decision of the Second Circuit Court of Appeals
is expected. Should this case or Compassion in Dying v. State of Washington
reach the Supreme Court, it remains to be seen how the highest court
in the United States of America would assess the arguments raised in these
cases in relation to the Due Process Clause and Equal Amendment Clause.(193)
Both physician-assisted suicide and active voluntary euthanasia are
prohibited by the criminal law in the United Kingdom.
Physician-assisted suicide is prohibited in England and Wales by section
2 of the Suicide Act 1961 (UK).(194) That section makes it a criminal
offence to aid, abet, counsel or procure the suicide of another, or an
attempt by another to commit suicide.(195) The crime carries a maximum
sentence of 14 years' imprisonment.
Active voluntary euthanasia comprises murder. Murder is a common law
offence in the United Kingdom(196) and carries a mandatory life sentence.
A murder charge can be reduced to manslaughter if the defendant can invoke
any one of three exceptions contained in the Homicide Act 1957
(UK): provocation, diminished responsibility and suicide pacts. None of
these exceptions are likely to apply in a situation where a doctor has
killed a patient at the patient's request.
There have been a number of unsuccessful attempts in the United Kingdom
to pass legislation to legalise physician-assisted suicide and/or active
voluntary euthanasia.
The first attempt took place in 1936. Lord Ponsonby of Shulbrede introduced
the Voluntary Euthanasia (Legalisation) Bill into the House of
Lords as a Private Member's Bill. The Bill was promoted by the Voluntary
Euthanasia Legalisation Society, which had been founded a year earlier.(197)
The Bill proposed allowing doctors, in strictly limited circumstances,
to comply with a patient's request to end the patient's life. Only competent
adult patients suffering from a fatal and incurable disease accompanied
by severe pain would have been able to receive this assistance. The Bill
contained procedural safeguards to ensure that euthanasia was voluntary.
The patient would have needed to sign a prescribed form in the presence
of two witnesses. This form and two medical certificates would then be
sent to an official euthanasia referee appointed by the Minister of Health.
The official euthanasia referee would then interview the patient to assess
whether the patient's request was voluntary. Only then would euthanasia
be performed, in the presence of an official witness - a justice of the
peace, a barrister, a solicitor, a doctor, a minister of religion or a
registered nurse. The Bill failed at its second reading stage, defeated
by a vote of 35:14.(198)
The House of Lords next debated the issue of active voluntary euthanasia
in 1950, when Lord Chorley introduced a Motion 'to call attention to the
need for legalising voluntary euthanasia'. The Motion was withdrawn without
a vote after vigorous debate.(199)
In 1969 Lord Raglan introduced a Private Member's Bill into the House
of Lords that sought to legalise active voluntary euthanasia in certain
circumstances. The general purpose of the Bill was stated in its Explanatory
Memorandum to be 'to authorise physicians to give euthanasia to a patient
who is thought on reasonable grounds to be suffering from an irremediable
physical condition of a distressing character, and who has, not less than
30 days previously, made a declaration requesting the administration of
euthanasia in certain specified circumstances one or more of which has
eventuated.(200) This Bill was defeated at its second reading stage by
a vote of 61:40.
In 1970 Hugh Gray MP presented the Voluntary Euthanasia Draft Bill
in the House of Commons under the Ten Minute Rule. There was no division
on the Bill and therefore no vote.
Baroness Wootton's Incurable Patients' Bill, defeated at its
second reading in the House of Lords in 1976, emphasised the entitlement
of an 'incurable patient' to 'take steps that may cause his own death'.
This would have legalised physician-assisted suicide in certain circumstances.
In 1985 Lord Jenkins introduced the Suicide Act 1961 (Amendment)
Bill into the House of Lords. The Bill aimed to introduce a defence
to a prosecution for assisting suicide under the Suicide Act 1961,
which would operate if the accused had 'behaved reasonably and with compassion
and in good faith'. This Bill failed at its first reading stage in November
1985, by 48 votes to 15.
In May 1990 Roland Boyes MP sought leave to bring in a Bill under the
Ten Minute Rule to legalise active voluntary euthanasia. The House of
Commons refused leave by 101 votes to 35.
The most recent attempt to enact this kind of legislative reform took
place in 1993. Piara Khabra MP introduced a Private Member's Bill into
the House of Commons under the Ten Minute Rule. The Voluntary Euthanasia
Bill sought to allow a doctor to accede to an incurably ill patient's
written and witnessed request for help in hastening death. The Bill would
have permitted a doctor to provide advice, counselling, assistance or
euthanasia (defined as 'any act at the request of a person which procures
directly or indirectly the rapid death of that person at their own hand
or otherwise'). The Bill was withdrawn before any vote was taken.
In 1993, after the House of Lords handed down its decision in the important
and controversial case Airedale NHS Trust v. Bland,(201) a Select
Committee was established to investigate the legal, ethical and social
issues surrounding medical treatment decisions at the end of life. More
specifically, the House of Lords Select Committee on Medical Ethics was
required to consider:
- the ethical, legal and clinical implications of a person's right to
withhold consent to life-prolonging treatment, and the position of persons
who are no longer able to give or withhold consent;
- whether, and in what circumstances, actions that have as their intention
or a likely consequence the shortening of another person's life may
be justified on the grounds that they accord with that person's wishes
or with that person's best interests; and
- in all the foregoing considerations to pay regard to the likely effects
of changes in law or medical practice on society as a whole.(202)
The Select Committee received written and oral evidence from a wide
range of interested individuals and organisations.(203) The report of
the Select Committee was published in January 1994. In this report, the
Select Committee recommended that there be no change to the current law
prohibiting active voluntary euthanasia and physician-assisted suicide.
In relation to active voluntary euthanasia, it was the opinion of the
Select Committee that the right to refuse medical treatment 'is far removed
from the right to request assistance in dying'.(204) Thus, although the
Select Committee strongly endorsed the right of a competent patient to
refuse consent to any medical treatment,(205) it refused to countenance
changing the law to permit 'euthanasia' (which it defined as 'a deliberate
intervention undertaken with the express intention of ending a life to
relieve intractable suffering'(206)) at the patient's request.(207) The
Select Committee similarly recommended against the creation of a new offence
of 'mercy killing' that would excuse deliberate killing (by doctors or
others) with a merciful motive.(208) It did support, however, the recommendation
of a previous House of Lords Select Committee that the mandatory life
sentence for murder should be abolished.(209)
The Select Committee did not consider that the arguments in favour of
legalising voluntary euthanasia were 'sufficient reason to weaken society's
prohibition of intentional killing' which it considered to be 'the cornerstone
of law and of social relationships'.(210) Whilst acknowledging that there
are 'individual cases in which euthanasia may be seen by some to be appropriate',
the Select Committee was of the opinion that these cases 'cannot reasonably
establish the foundation of a policy which would have such serious and
widespread repercussions'.(211) The Select Committee considered that if
the law were to be liberalised to permit voluntary euthanasia:
- it would be 'next to impossible' to establish sufficient safeguards
to ensure that all acts of euthanasia were truly voluntary;
- this exception to the general prohibition of intentional killing 'would
inevitably open the way to its further erosion'; and
- vulnerable people - the elderly, lonely, sick or distressed - would
feel pressure, whether real or imagined, to request early death.(212)
It was finally the opinion of the Select Committee that:
.. dying is not only a personal or individual affair. The death
of a person affects the lives of others, often in ways and to an extent
which cannot be foreseen. We believe that the issue of euthanasia is one
in which the interest of the individual cannot be separated from the interest
of society as a whole.(213)
In relation to physician-assisted suicide, the Select Committee identified
'no circumstances in which assisted suicide should be permitted, nor do
we see any reason to distinguish between the act of a doctor or of any
other person in this connection'.(214)
The Select Committee acknowledged that its rejection of voluntary euthanasia
and physician-assisted suicide as options for the individual entails 'a
compelling social responsibility to care adequately for those who are
elderly, dying or disabled'.(215) This responsibility exists '[d]espite
the inevitable continuing constraints on health-care resources'.(216)
The Select Committee accordingly also recommended that:
- High-quality palliative care should be made more widely available.
This should be done by: improving public support for the hospice movement;
ensuring that all general practitioners and hospital doctors have access
to specialist advice; and providing more support for relevant training
at all levels.(217)
- Research into pain relief and symptom control should be adequately
supported.(218)
- Training of health-care professionals should better prepare them for
ethical responsibilities, by giving greater priority to health-care
ethics and counselling and communication skills;(219)
- Long-term care of dependent people should have special regard to the
need to maintain the dignity of the individual(220)
The British Government responded to the report of the House of Lords
Select Committee on Medical Ethics in May 1994.(221)
In relation to active voluntary euthanasia, the Government stated that
it 'strongly supports the Committee's rejection of the case for the legalisation
of euthanasia and endorses the reasoning by which it has arrived at its
conclusion'.(222) The Government accordingly stated that its 'firm view
is that the deliberate taking of life should remain illegal'.(223) The
Government also agreed with the Select Committee's recommendation against
creating a new offence of 'mercy killing', on the basis that the Government
'[does] not believe that active intervention to end life should be excused
on the basis of the motive or the victim's consent' and 'to do so would
undermine the law's uncompromising attitude towards deliberate killing'.(224)
The Government also stated, however, that it was 'not persuaded' that
the mandatory life sentence for murder should be abolished as recommended
by the Select Committee.(225)
In relation to assisted suicide, the Government agreed that the law
should not be changed. It stated that such change 'would be open to abuse
and put the lives of the weak and vulnerable at risk'.(226)
The Government responded as follows to the Select Committee's assertion
that rejection of euthanasia means society has a compelling responsibility
to care adequately for those who are elderly, dying or disabled:
The Government agrees. The Patient's Charter affirms the right
of every citizen of whatever age to receive health care on the basis of
clinical need. Similarly local authorities are required to arrange appropriate
community care services for everyone who needs them. We expect these services
to be tailored as far as possible to the needs of the individual person
receiving them.(227)
The British Government has subsequently reiterated its opposition to
changing the law in relation to active voluntary euthanasia and physician-assisted
suicide, in written answers in Parliament in April 1995(228) and January
1996.(229)
The possibility of law reform in this area nonetheless remains alive
in Great Britain. Public debate remains vigorous and may become even more
so as the next General Election approaches. Future attempts to change
the law are likely to concentrate initially on legalising physician-assisted
suicide rather than active voluntary euthanasia.
The Voluntary Euthanasia Society, which now has over 20 000 members,
has prepared a Draft Bill to amend the Suicide Act 1961 to allow
physician-assisted suicide in certain circumstances. The Draft Bill is
currently being widely circulated for comment.
The Institute of Law & Ethics in Medicine at Glasgow University
is currently nearing completion of a research project funded by the Scottish
Voluntary Euthanasia Society. That research project has surveyed the attitudes
of health care professionals and of the general public to the legal status
of physician-assisted suicide. The results of this research will be published
in August 1996. The report is expected to include a Draft Bill for the
legalisation of physician-assisted suicide.
Since mid-1995, the Centre of Medical Law and Ethics at King's College
London, University of London, has convened a multidisciplinary working
party to assess legal and ethical issues in relation to physician-assisted
suicide. This working party is expected to produce a report some time
in the future.
Both physician-assisted suicide and active voluntary euthanasia are
prohibited under the Canadian Criminal Code. The constitutional
validity of the criminalisation of physician-assisted suicide was examined
by the Supreme Court of Canada in 1993, in the well-publicised Rodriguez
case.(230)
The applicant in the Rodriguez case, Sue Rodriguez, was a competent
42 year old woman suffering from amyotrophic lateral sclerosis ('Lou Gehrig's
disease'). This incurable disease destroys cells in the spinal cord and
brain stem and progressively leads to paralysis. It usually leads to death
by suffocation due to loss of control over lungs and diaphragm. As the
disease does not ordinarily affect mental capacity, sufferers tend to
remain competent and aware of their progressive physical deterioration.
Sue Rodriguez wanted to be able to choose to die, if and when she reached
the point when she no longer wished to continue living with her disease.
She anticipated that this would occur at a time when she lacked the physical
capacity to end her own life. She therefore sought a court declaration
that it would be lawful for a doctor 'to set up technological means by
which she might, by her own hand, at the time of her choosing, end her
suffering, rather than prolong her death'. She claimed that section 241(b)
of the Canadian Criminal Code, which makes it an offence to aid
or abet suicide(231), was invalid to the extent that it prevented a terminally
ill person from committing physician-assisted suicide.
She argued that the prohibition in section 241(b) violated her rights
under a number of sections of the Canadian Charter of Rights and Freedoms
(hereafter, 'the Charter'):
- section 7 - the right to life, liberty and security of the
person, and the right not to be deprived thereof except in accordance
with the principles of fundamental justice. The right to security of
the person encompasses notions of personal autonomy and the right to
make choices concerning one's own body.(232) Ms Rodriguez argued that
this right therefore must include the right of a person to control the
method, timing and circumstances of his or her own death.
- section 12 - the right not to be subjected to any cruel and
unusual treatment or punishment.
- section 15(1) - the right to equality before the law without
discrimination on grounds including physical disability. Ms Rodriguez
argued that the prohibition on physician-assisted suicide infringed
this right, because it prevented persons physically unable to end their
lives without assistance from choosing suicide, when that option was
in principle available to other members of the public without contravening
the law.
Ms Rodriguez's arguments were rejected by the British Columbia Supreme
Court, the British Columbia Court of Appeal, and finally by a narrow majority
(5:4) of the Supreme Court of Canada.(233)
The majority of the Supreme Court of Canada(234) conceded that section
241(b) of the Criminal Code deprived Ms Rodriguez of security
of her person under section 7 of the Charter, because it deprived
her of autonomy over her person and caused her physical pain and distress.
The majority concluded, however, that this deprivation accorded with principles
of fundamental justice and therefore did not violate section 7. The majority
placed heavy reliance on its observation that there was social consensus
in Canada (and beyond) that human life should be protected and respected.
The majority stated that the blanket prohibition on assisted suicide was
neither arbitrary nor unfair. Rather, it was an appropriate legal protection
designed to protect vulnerable members of society who might otherwise
be persuaded to commit suicide. The blanket prohibition was further justified
by a need to ensure maintenance of a belief in the sanctity of human life,
and by concerns that legalising physician-assisted suicide could not incorporate
adequate safeguards against abuse. The majority therefore concluded that,
in this context, society's interest in the preservation of all human life
should prevail over Ms Rodriguez's personal security interest.
Three of the four dissenting judges(235) disagreed on the above interpretation
of section 7 of the Charter. They did not agree that the infringement
of Ms Rodriguez's right to security of the person was justified under
any principle of fundamental justice. The dissenting opinion of Madam
Justice McLachlin contained a particularly forceful rejection of the argument
that Ms Rodriguez should be denied individual choice in this matter:
... Sue Rodriguez is asked to bear the burden of the chance
that other people in other situations may act criminally to kill others
or to improperly sway them to suicide. She is asked to serve as a scapegoat.
The majority of the Supreme Court of Canada disposed of the argument
that section 241(b) violated Ms Rodriguez's rights under section 12 of
the Charter simply by concluding that 'a mere prohibition by the
state on certain action, without more, cannot constitute 'treatment' under
section12'. The dissenting judges did not address the section 12 issue.
For the purposes of argument, the majority judges assumed that section
241(b) violated Ms Rodriguez's right to equality under section 15(1) of
the Charter. They went on to conclude, however, that the infringement
of section 15(1) was justified under section 1 of the Charter.
Section 1 provides that the rights and freedoms protected by the Charter
can be subject 'to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society'. The majority
judges stated that the prohibition in s 241(b) was both reasonable and
justified in order to give effect to the valid state objective of protecting
the vulnerable from others who may wish to end their lives.
This was not the view of Chief Justice Lamer, whose dissenting judgement
was based on section 15(1) of the Charter. He concluded that the
discriminatory effect of section 241(b) - which denied physically disabled
persons unable to commit suicide without assistance the right to choose
that option, where it was lawfully available to the able bodied - was
not justified under section 1 of the Charter. He did not consider
that the prospect of abuse of those vulnerable to manipulation by others
justified this discriminatory restriction on the rights of persons who
were not vulnerable in that way, and who would voluntarily choose to die.
Despite loosing her legal action, Ms Rodriguez ended her own life in
February 1994 in her home in British Columbia. She did so with the assistance
of an unidentified doctor. No charges were laid against the doctor in
relation to Ms Rodriguez's death.
Following the Supreme Court's decision in the Rodriguez case,
in November 1993 the prosecution guidelines for cases where a doctor has
complied with a patient's request to hasten death were relaxed in British
Columbia. One commentator describes this relaxation as follows:
This change has opened the door to active euthanasia under
certain circumstances. From an ethical perspective, it calls on a doctor
to allow death with dignity and comfort when death of the body appears
inevitable. The guidelines give public prosecutors broader discretion,
on a case-by-case basis, to determine whether a doctor whose treatment
for a terminally ill patient hastens death should be charged. Prosecutors
are to consider two issues in deciding whether to recommend charges: substantial
likelihood of conviction, and the public interest.(236)
The public interest criterion under these guidelines requires the following
factors to be considered:(237)
- supporting professional and ethical standards for health care professionals;
- society's interest in protecting vulnerable persons; and
- society's interest in protecting the sanctity of human life, while
recognising this does not require life to be preserved at all costs.
The Rodriguez case also provided an impetus for the setting up
in February 1994 of a Special Committee of the Senate of Canada to examine
and report on the legal, social and ethical issues relating to euthanasia
and assisted suicide. The report of this committee - entitled Of Life
and Death - was tabled on 6 June 1995. The report contains recommendations
relating to palliative care, pain control and sedation practices, withholding
and withdrawal of life-sustaining treatment, advance directives, assisted
suicide and euthanasia (divided into three categories: 'nonvoluntary euthanasia',
'voluntary euthanasia' and 'involuntary euthanasia').
The recommendations most pertinent to the situation addressed in the
Rodriguez case are those relating to 'assisted suicide', encompassing
physician-assisted suicide:
- The majority of the committee recommended against any change to the
prohibition on counselling, aiding or abetting suicide contained in
section 241 of the Canadian Criminal Code.
- The majority also recommended that research be undertaken into how
many people are requesting assisted suicide, why it is being requested,
and whether there are any alternatives that might be acceptable to those
making the requests.
- The minority of the committee recommended that an exemption be added
to section 241(b) of the Criminal Code, to protect those who
assisted another's suicide provided it was done in accordance with 'clearly
defined safeguards'. The minimum recommended safeguards were:
- The individual must be suffering from an irreversible illness
at an intolerable stage.
- The request for assistance must be free, informed and made without
coercion.
- The individual must be fully informed about and must fully understand
his or her condition, prognosis, other options available, and that
he or she at all times has a right to rescind the request.
- A health care professional must confirm all the above conditions
are met.
- No-one should be under a duty to assist in a suicide.
- In order to avoid abuse, procedural safeguards must provide for
review both prior to and after the act of assisted suicide.
The recommendations relating to 'voluntary euthanasia', meaning active
voluntary euthanasia, are also relevant:
- The majority of the committee recommended that voluntary euthanasia
remain a criminal offence. It further recommended, however, that the
Criminal Code should be amended to allow for a less severe penalty
'in cases where there is the essential element of compassion or mercy'.
It recommended that Parliament consider introducing a new third category
of murder, or a separate offence of 'compassionate homicide', that would
carry a less severe penalty than the current penalty for murder.
- The majority also recommended that research be undertaken into how
many people are requesting euthanasia, why it is being requested, and
whether there are any alternatives that might be acceptable to those
making the requests.
- The minority of the committee recommended that the Criminal Code
be amended to permit voluntary euthanasia for competent individuals
who are physically incapable of committing assisted suicide. It recommended
that this amendment be subject to the same or similar minimum safeguards
as recommended by the minority in relation to assisted suicide.
- 'From Tragedy to Victory: Wide Reaction to World First,' Canberra
Times, 26 May 1996.
- Ibid.
- 'Kennett Flags Right-to-Die Bill,' The Age, 26 May 1996.
- 'Lobbyists Call it a Test Law,' The Age, 26 May 1996.
- C. Steven and R. Hasssan, (1994) 20, 'Management of Death, Dying
and Euthanasia: Attitudes and Practices of Medical Practitioners in
South Australia', Journal of Medical Ethics, 41.
- P. Baume and E. O'Malley, 'Euthanasia: Attitudes and Practices of
Medical Practitioners', (1994) 161(2) The Medical Journal of Australia,
137.
- H. Kuhse and P. Singer, 'Euthanasia. A Survey of Nurses' Attitudes
and Practices,' (1992) 21(8) The Australian Nurses Journal, 21.
- S Aranda and M O'Conner, 'Euthanasia, Nursing and Care of the Dying:
Rethinking Kuhse and Singer,' (1995) 3(2) Australian Nursing Journal,
8.
- N. Cica, Euthanasia - the Australian Law in an International Context;
Part 1: Passive Voluntary Euthanasia, Canberra, Department of the
Parliamentary Library, 1996
- See ibid.
- See Re J [1993] 4 Med LR 21 (English Court of Appeal). This
is the case whether the patient requests the treatment contemporaneously,
makes a valid anticipatory request for treatment, or has the request
made on his or her behalf by an agent appointed under an enduring power
of attorney.
- See further below.
- See further M. Otlowski, Active Voluntary Euthanasia: A Timely
Appraisal, University of Tasmania Law School, Hobart, 1992, pp 5-6;
D. Lanham, 'Euthanasia, Painkilling, Murder and Manslaughter' (1994)
1 Journal of Law and Medicine 146.
- Airedale NHS Trust v. Bland [1993] 2 WLR 316 at 370 per Lord
Goff, emphasis added.
- R v. (Bodkin) Adams [1957] Crim LR 354 per Devlin J.
- M. Otlowski, supra note 5, p 22.
- See generally: M. Otlowski, supra note p 22; A. Dix, M. Errington,
K. Nicholson and R. Powe, Law for the Medical Profession, Sydney,
Butterworths, 1988, p 297; p 139; I. Kennedy, 'The Quality of Mercy:
Patient, Doctors and Dying', Upjohn Lecture given at the Royal Society
of Medicine, London, UK, 25 April 1994.
- (1992) 12 BMLR 38.
- The charge was attempted murder rather than murder because the prosecution
were unsure whether they could prove that Ms Boyes had died from the
potassium chloride injection rather than from her underlying medical
condition, particularly as her body had already been cremated.
- See I. Kennedy and A. Grubb, Medical Law: Text With Materials
(2nd ed), London, Butterworths, 1994, pp 1205-6. The validity of
this doctrine and its applicability in this context recently was affirmed
by the English House of Lords Select Committee on Medical Ethics: see
House of Lords, Report of the Select Committee on Medical Ethics:
Volume 1 - Report, London, HMSO, January 1994, paras 22, 73-79,
242-244.
- I. Kennedy and A. Grubb, supra note 12, p 1207; Airedale
NHS Trust v. Bland [1993] 2 WLR 316 per Lord Goff. This rationale
seems to underlie the following statement by the World Health Organization.
There is ... no excuse for failure to use available methods to control
pain adequately. If shortening of life results from the use of adequate
doses of ana analgesic drug, this is not the same as intentionally
terminating life by overdose. Any hastening of death that is linked
to adequate pain control measures simply means that the patient could
no longer tolerate the therapy necessary for a bearable and dignified
life.
(WHO, Cancer Relief and Palliative Care, Geneva, 1990).
- M. Otlowski, supra note 5, p 23.
- M. Otlowski, supra note 5, p 25.
- See I. Kennedy, supra note 9; M. Otlowski, supra note
5, pp 20 and 23, 26.
- I. Kennedy, supra note 9.
- M. Otlowski, supra note 5, p 25. A similar argument is contained
in I. Kennedy, supra note 9.
- See M. Otlowski, supra note 5, pp 11 and 26. Note that surveys
indicate that a substantial number of Australian doctors who have been
asked by a patient to hasten his or her death have acceded to the patient's
request by performing active voluntary euthanasia. A 1987 survey of
doctors in Victoria indicated that 29 per cent of respondents had, on
at least one occasion, taken active steps to end a patient's life: see
H. Kuhse and P. Singer, 'Doctors' Practices and Attitudes Regarding
Voluntary Euthanasia' (1988) 148 Medical Journal of Australia 263
. A more recent survey of doctors in New South Wales and the Australian
Capital Territory similarly indicated that 28 per cent of respondents
had performed active voluntary euthanasia: see P. Baume and E. O'Malley
'Euthanasia: Attitudes and Practices of Medical Practitioners' (1994)
161 Medical Journal of Australia 137. See also Stevens and Hassan,
'Management of Death, Dying and Euthanasia: Attitudes and Practices
of Medical Practitioners in South Australia' (1994) 20 Journal of
Medical Ethics 41.
- See M. Otlowski, supra note 5, pp 16 and 25-27.
- Australian law does not currently recognise necessity as a defence
to murder: see D. Lanham, supra note 5 at 149.
- See G. Williams, Sanctity of Life and the Criminal Law, London,
Faber and Faber, 1958, pp 286 and 289; M. Otlowski, supra note
5, p 23 n 40.
- For discussion of the efficacy of pain relief see House of Lords,
supra note 12, paras 146-155.
- Note that Dutch courts have developed and applied a 'necessity' defence
to exonerate doctors who have engaged in physician-assisted suicide
or active voluntary euthanasia, provided certain criteria are satisfied
(see further below). It seems unlikely that the necessity defence would
be used in this way by an Australian court: see G. Griffith and M. Swain,
Euthanasia; - Volume 1: Text , Sydney, NSW Parliamentary Library
Research Service, July 1995, p 43; J. Griffiths, 'Assisted Suicide in
the Netherlands: The Chabot Case' (1995) 58 Modern Law Review
232 at 241 n 32.
- See further below.
- M. Otlowski, supra note 5, pp 19-20 and 24.
- M. Otlowski, supra note 5, p 19.
- M. Otlowski, supra note 5, p 25; see Law Reform Commission
of Western Australia, Report on Medical Treatment for the Dying,
February 1991, pp 25-27.
- Section 17(1).
- Section 17(3).
- Section 4(2).
- Section 5(2).
- Section 5(2).
- Section 3.
- Section 23(1).
- Section 23(2).
- For a critical assessment of the new section 82, see R. Scott, 'When
is Medical Treatment for Abortion, Pain Relief or Euthanasia Actionable?
(Section 82 New Criminal Code)' (1995) Queensland Law Society Journal
449.
- Compare the more restrictive wording of the following provision,
the adoption of which was recommended in the Final Report of the Criminal
Code Committee as the appropriate formulation of the law relating to
administration of pain relief:
A person is not criminally responsible if he or she gives such palliative
care as is reasonable in the circumstances, for the control or
elimination of a person's pain and suffering even if such care
shortens that person's life, unless the patient refuses such care.
(emphasis added).
- Queensland Parliamentary Debates, 16 June 1995, p 12702.
- M. Otlowski, 'Mercy Killing Cases in the Australian Criminal Justice
System' (1993) 17 Criminal Law Journal 10 at 12 n 9.
- Ibid at 13, n 9.
- Ibid .
- Ibid at 12.
- e.g. R v. Larkin, unreported, Victorian Supreme Court, 14
April 1983; R v. Den Heyer, unreported, NSW District Court (Parramatta),
28 September 1990; R v. Savage, unreported, NSW District Court
(Newcastle), 27 March 1982. These cases are discussed in M. Otlowski.
supra note 41 at 25-6.
- See M. Otlowski, supra note 41 at 11-12.
- Ibid, at 18, 36-7.
- R v. Lim, WA Court of Petty Sessions, No 56036 of 1988, discussed
in M. Otlowski, supra note 5, p 12 n 15.
- R v. Barnes, unreported, NSW Supreme Court, 16 November 1981,
discussed in M. Otlowski, supra note 41 at 20.
- M. Otlowski, supra note 41 at 10.
- M. Otlowski, supra note 41 at 13. Cases where these mechanisms
have been utilised include: a 1983 case in the ACT where the Commonwealth
Attorney-General decided not to proceed with a murder charge against
a woman who had killed her terminally ill sister, who had expressed
a wish to die (defendant's name suppressed); R v. Austen, unreported,
NSW Supreme Court, 5 March 1990; R v Larkin, unreported, Victorian
Supreme Court; R v. Thiel, unreported, NSW Supreme Court, 27
September 1990; R v. Johnstone , unreported, SA Supreme Court,
21 January 1987; R v. Kelly , unreported, Queensland Supreme
Court, 12 May 1989; R v. Hollinrake, unreported Victorian Supreme
Court, 29 June 1992. These cases are discussed in detail in M. Otlowski,
supra note 41.
- Section 5.
- Section 4.
- Section 3.
- Section 7(1)(a).
- Section 7(1)(d).
- Section 4.
- Section 8(1).
- Section 7(1)(e).
- Section 7(3); the requisite qualifications are specified in Regulation
5 and Schedule 2 of the Rights of the Terminally Ill Regulations
1996. This other doctor may can be the specialist who confirms the
first doctor's opinions concerning the patient's illness (see below).
- Section 7(1)(f).
- Section 7(1)(b)(i).
- Section 7(1)(b)(ii).
- Section 7(1)(b)(iii).
- Section 7(1)(h).
- Section 7(1)(g).
- Section 3.
- For these purposes, the doctor must 'hold a qualification in a medical
specialty related to the terminal illness of the patient recognised
by a medical specialist college in Australia and which entitles the
medical practitioner to fellowship of that college.': Regulation 3 of
the Rights of the Terminally Ill Regulations 1996 (NT).
- Section 7(1)(c).
- See section 3 for the definition of 'qualified psychiatrist'.
- Section 7(1)(c).
- Section 7(1)(i),(j)(k) and (m).
- Section 7(1)(i).
- Section 7(1)(n).
- Section 7(1)(o).
- Section 7(4); the requisite qualifications for interpreters are specified
in Regulation 6 of the Rights of the Terminally Ill Regulations 1996
(NT).
- Section 10(1).
- Section 5.
- Section 10(4).
- Definition of 'assist' in section 3.
- Section 7(2); Regulation 4 and Schedule 1 of the Rights of the
Terminally Ill Regulations 1996 (NT).
- Section 7(1)(p).
- Section 7(2); Regulation 4 and Schedule 1 of the Rights of the
Terminally Ill Regulations 1996 (NT).
- Ibid.
- Section 12.
- Sections 14 and 15.
- Section 20.
- Section 6.
- Section 11.
- Section 12.
- J. Norberry Rights of the Terminally Ill Bill: Research Note No.
49, Canberra, Department of the Parliamentary Library, 27 June 1995.
See Legislative Assembly of the Northern Territory, Report of the
Inquiry by the Select Committee on Euthanasia, May 1995.
- For discussion of the social and political background to the passing
of this legislation, see T. Campbell, N. Cica and M. Storey, 'Euthanasia
Legislation: Australian Developments', paper presented on 11 July 1996
at Socio-Legal Studies Conference, University of Strathclyde, Glasgow,
UK.
- See discussion of the legal position in Oregon and the Netherlands,
below.
- http://www.nt.gov.au/lant/.
- Section 9 of the Northern Territory (Self-Government) Act 1978
(Cth) empowers the Governor-General to disallow legislation passed by
the Legislative Assembly, in part or in its entirety, within six months
of the Administrator's assent to the legislation. Alternatively, the
Governor-General can recommend amendments to the legislation. Disallowance
by the Governor-General repeals the legislation. These powers have never
been used to disallow any Northern Territory legislation.
- Rights of the Terminally Ill Amendment Act 1996 (NT).
- See Rights of the Terminally Ill Amendment Act 1996 (NT),
sections 3 (amending section 3 of the principal legislation) and 4 (amending
section 7(1)(c) of the principal legislation).
- See Rights of the Terminally Ill Amendment Act 1996 (NT0,
section 4 (amending section 7(4) of the principal legislation).
- See Northern Territory Parliamentary Debates (Legislative
Assembly), 20 February 1996 (on the Rights of the Terminally Ill
Amendment Bill 1996 (NT)), and 15 March 1996 (on the Respect
for Human Life Bill (Serial 111) 1996 (NT), introduced by
Mr Bell).
- The action against the Commonwealth has since been discontinued with
the Commonwealth's consent.
- See transcript of case, pp 22-26.
- Ibid, pp 33-34.
- Ibid, pp 28-31.
- Ibid, pp 38-41.
- Ibid, pp 38-39.
- Ibid, p 41.
- Ibid, pp 18-19.
- Ibid, pp 5 and 19-20. See further pp 42-43.
- Ibid, pp 20-21 and 36.
- Ibid, p 20.
- Ibid, p 22.
- Ibid, p 63.
- Ibid, p 62.
- Ibid.
- Ibid pp 62-3.
- Ibid, p 36.
- For discussion of the provisions of this Bill, see G. Griffith and
M. Swain, ibid note 25, pp 27-28.
- 'Way cleared for a vote on euthanasia', Sydney Morning Herald,
31 May 1995.
- See 'NT mercy killing law a mess, says Carr', and 'Editorial', Sydney
Morning Herald, 15 April 1996.
- For discussion of the differences between this draft Bill and the
Northern Territory law, see G. Griffith and M. Swain, ibid note
25, pp 38-40.
- P. Van der Maas, J. Van Delden, L. Pijnenborg and C. Looman, 'Euthanasia
and Other Medical Decisions Concerning the End of Life' (1991) 338 Lancet
669 at 671; P. Van der Maas, L. Pijnenborg and J. Van Delden, 'Changes
in Dutch Opinions on Active Euthanasia, 1966 Through 1991' (1995) 273(18)
JAMA 1411. Also see media reports of statements made by the Dutch
Minister for Health at the opening ceremony of the new offices of the
Dutch Federation for Voluntary Euthanasia in 1995 (NRC Handelsblad,
27 July 1996).
- House of Lords, supra note 12, para 119.
- See generally G Kimsma and E. Van Leeuwen, 'Dutch Euthanasia: Background,
Practice and Present Justifications' (1993) 2 Cambridge Quarterly
of Healthcare 19; E. Ketting, 'Is the Dutch Abortion Rate Really
That Low?' (1994) 23(3) Planned Parenthood in Europe 29.
- P. Van der Maas, J. Van Delden and L. Pijnenborg, 'Euthanasia and
Other Medical Decisions Concerning the End of Life - Volume 2' (1992)
22(2) Health Policy (Special Issue), p 3.
- See further House of Lords, supra note 12, Appendix 3, p 67
and para 126.
- See J Keown, 'The Law and Practice of Euthanasia in the Netherlands'
[1992] 108 Law Quarterly Review 51 at 52.
- For fuller and slightly varying accounts of these rules, see G. Griffith
and M. Swain, supra note 25, pp 44-45; J. Griffiths, 'The Regulation
of Euthanasia and Related Medical Procedures that Shorten Life in the
Netherlands' (1994) 1 Medical Law International 137 at 143-4.
- Euthanasia is defined in the Netherlands for these purposes as intentionally
acting to take the life of a person upon his or her explicit request,
the act being performed by someone other than the person concerned (ie
active voluntary euthanasia, as defined in this paper). See R. Dillman
and J. Legemaate, 'Euthanasia in the Netherlands: the State of the Legal
Debate' (1994) 1 European Journal of Health Law 81 at 81-2; c.f.
J. Griffiths. 'Recent Developments in the Netherlands Concerning
Euthanasia and Other Medical Behaviour that Shortens Life' (1995) 1
Medical Law International 347 at 350-1.
- See discussion below of the Chabot case.
- J. Griffiths, supra note 25 at 232 n 1:
There is a translation difficulty in connection with the legal concept
noodtoestand. The technically correct translation is '(situation
of) necessity', and the defence of necessity is, in general terms,
the same in Dutch law as in the common law. However, in the case of
euthanasia the 'necessity' which has been recognised by the Dutch
courts is not a general necessity but a specifically medical
one, measured in terms of the state of medical knowledge and the professional
norms of doctors, and it seems clear that no one but a doctor can
successfully invoke it. There is, therefore, an argument to be made
for translating the term as 'medical necessity'.
- J Keown, supra note 126 at 53, quoting from 'The High Court
of the Hague, Case No 79065, October 21, 1986' (1988) 3 Issues in
Law & Medicine 445 at 448.
- J Keown, supra note 126 at 56. These criteria were first articulated
by the Dutch courts in 1986, in the Alkmaar case (Dutch Supreme
Court).
- See discussion below of the Chabot case, June 1994.
- The Van Weerd case, March 1995.
- See discussion below of the Chabot case.
- P. Van der Maas et al, supra note 121 at 671.
- Ibid at 671.
- Ibid at 671-672.
- Ibid at 672.
- Ibid at 672.
- Ibid at 672-673.
- Ibid at 671.
- Ibid at 672.
- G. Van der Wal, Euthanasie en Hulp bij Zelfdoding door Hisartsen
[Euthanasia and Assisted Suicide by Family Doctors], Rotterdam,
1992.
- Remmelink Commission, Medische beslissingen rond het levenseinde
[Medical decisions in t connection with the end of life: advice of the
Commission appointed to carry out research concerning medical practice
with respect to euthanasia], 1991, The Hague, Sdu Uitgeverij Plantijnstraat.
- See B. Pollard, 'Euthanasia in Holland' (1992) 16(2) Quadrant
42.
- J. Griffiths, supra note 25 at 247; see similar cautions by
the Remmelink researchers, J. Van Delden, L. Pijnenborg and P. Van der
Maas, 'Dances With Data' (1993) 7(4) Bioethics 323.
- See J. Griffiths, supra note 25; H. Leenen, 'Dutch Supreme
Court about Assistance to Suicide in the Case of Severe Mental Suffering'
(1994) 1 European Journal of Health Law 377; J. Griffiths supra
note 128 at 368-369.
- J. Griffiths, supra note 25 at 235.
- Four psychiatrists, a clinical psychologist, a general practitioner
and a Christian professor of ethics.
- This conforms with conclusions reached earlier by:
- the Commission on the Acceptability of Termination of Life of
the Royal Dutch Medical Association (in its fourth discussion paper
on the termination of life in the case of non-competent patients,
issued in 1993: Hulp bij zelfdoding bij psychiatrische patinten
[Assistance With Suicide in the Case of Psychiatric Patients]);
- the Dutch Inspectorate for Mental Health (in its 1993 report De
medlingsprocedure euthanasie/hulp bij zelfdoding en psychiatrische
patienten [The reporting procedure for euthanasia/assistance with
suicide and psychiatric patients]); and
- the Dutch Association for Psychiatry (in its 1992 paper 'Mededelingen
bestuur' (1992) Nieuws en Mededelingen 86/2).
- The Supreme Court did not specify, however, whether that independent
colleague must be a psychiatrist. Nor did it specify details of the
independent consultation requirements in a case where the doctor receiving
the request for assistance was (unlike Dr Chabot) not a psychiatrist.
Nor did it make it clear whether the independent colleague must agree
with the first doctor's assessment of the patient. See J. Griffiths,
supra note 25 at 242.
- J. Griffiths, 'Assisted Suicide in the Netherlands: Postscript to
Chabot' (1995) 58 Modern Law Review 895. Griffiths notes
that, like the Supreme Court, the Medical Disciplinary Tribunal held
that it can be legitimate for a doctor to assist the suicide of a person
whose unbearable suffering is of non-somatic origin. It also agreed
that a doctor must ensure that the patient is examined by another, independent
doctor before the doctor can accede to the patient's request. Unlike
the Supreme Court, however, it did not consider that a doctor could
help a patient die if the patient is refusing treatment that could possibly
improve his or her condition.
- J. Griffiths, supra note 25 at 247.
- J. Griffiths, supra note 25 at 246.
- The Prins case, 7 November 1995.
- The Kadijk case, 13 November 1995.
- The Royal Dutch Medical Association plans to set up a 'help desk'
panel. which doctors in the Netherlands will be able to consult for
advice on matters relating to euthanasia. This should include provision
of advice about the proper ways to perform euthanasia and information
about how to locate doctors who are willing to be involved in the procedure.
- Of these jurisdictions, 34 states (Alaska, Arizona, Arkansas, California,
Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinios,
Indiana, Kansas, Kentucky, Maine, Michigan, Minnesota, Mississippi,
Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York,
North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee,
Texas, Washington and Wisconsin) and 2 territories (Puerto Rico and
the Virgin Islands) currently have statutes imposing criminal sanction
for aiding, assisting, causing or promoting suicide. Three further states
(Idaho, Nevada and West Virginia) and the District of Columbia do not
impose explicit criminal sanctions on assisted suicide, but nonetheless
condemn assisted suicide in statutes allowing withdrawal of medical
treatment. In three further states (Alabama, Iowa and Wyoming), the
definition of criminally negligent homicide are sufficiently broad to
encompass aiding, assisting, causing or promoting suicide. In four other
states (Massachusetts, Ohio, South Carolina and North Carolina) criminal
penalties for assisting suicide are imposed under case law.
- New York State Task Force on Life and the Law, When Death is Sought:
Assisted Suicide and Euthanasia in the Medical Context, May 1994.
- In 1995 Bills proposing the legalisation of physician assisted suicide
were introduced in twelve states. A model statute to effect this kind
of legal change has been drafted: see Baron et al, 'A Model State Act
to Authorise and Regulate Physician-Assisted Suicide' (1996) 33 Harvard
Journal of Legislation 1.
- In 1995 Bills were introduced in four states to create such a legislative
prohibition. One recent example of the successful introduction of this
kind of legislation occurred in Michigan in 1993, in response to the
well-publicised activities of Dr Jack Kevorkian. Dr Kevorkian was a
physician who was assisting patients to die using a 'suicide machine'
that killed by administering potassium chloride intravenously. The machine
was activated by the patient pressing a switch. Criminal charges could
not be brought successfully against Dr Kevorkian in relation to the
death of patients who used this machine, because murder prosecutions
against the doctor failed on the basis that the patients had caused
their own deaths (by pressing the switch themselves) and because in
Michigan there was no specific crime of assisting suicide. The Michigan
legislature passed a law making it a crime intentionally to provide
another with the physical means to commit suicide. A challenge to the
constitutional validity of this new law failed in the Michigan Supreme
Court: People v. Kevorkian (1994) 447 Mich 436.
- United States Court of Appeals for the Ninth Circuit, 6 March 1996.
- United States Court of Appeals for the Second Circuit, 2 April 1996.
- Lee v. Oregon (1995) 891 F. Supp 1429.
- See B. Bix, 'Physician Assisted Suicide and the United States Constitution'
(1995) 58 Modern Law Review 404 at 409.
- United States Court of Appeals for the Ninth Circuit, 6 March 1996.
- Griswold v. Connecticut (1965) 381 US 479; Eisenstadt v.
Baird (1972) 405 US 438; Carey v. Population Services International
(1977) 431 US 678.
- Loving v. Virginia 388 U. 1 (1967).
- Roe v. Wade (1973) 410 US 113; most recently affirmed in Planned
Parenthood v. Casey (1992) 112 S.Ct 2791.
- Moore v. City of East Cleveland (1977) 431 US 494.
- Pierce v. Society of Sisters (1925) 368 US 510.
- Planned Parenthood v. Casey (1992) 112 S. Ct 2791 at 2807.
- (1992) 112 S. Ct 2791.
- (1990) 497 US. 261.
- Rhenquist CJ, delivering the majority opinion, stated that 'the principle
that a competent person has a constitutionally protected liberty interest
in refusing unwanted medical treatment may be inferred from our prior
decisions': (1990) 497 US 261 at 278. For the purposes of the case before
the Court, however, the majority only explicitly affirmed the existence
of a constitutionally protected liberty interest in rejecting life-sustaining
hydration and nutrition: 'Although we think the logic of the cases discussed
above would embrace [a liberty interest in refusing unwanted medical
treatment], the dramatic consequences involved in refusal of such treatment
would inform the inquiry as to whether the deprivation of that interest
is constitutionally permissible. But for purposes of this case, we assume
that the United States Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving hydration and
nutrition.': at 279.
- O'Connor J rejected any legal distinction between artificial feeding
and hydration and other forms of life-sustaining medical treatment:
Accordingly, the liberty guaranteed by the Due Process Clause must
protect, if it protects anything, an individual's deeply personal
decision to reject medical treatment, including the artificial delivery
of food and water.
(1990) 497 US 261 at 289.
- Brennan Marshall, Stevens and Blackmun JJ.
- For criticism of the similar conclusion by the trial judge in the
instant case (Rothstein CJ, District Court for the Western District
of Washington, reported as Compassion in Dying v. State of Washington
(1994) 850 F Supp 1454), see B. Bix, supra note 166 at 408:
The District Court's quick and untroubled conclusion that there
is no legally (constitutionally) significant difference between assisted
suicide and the termination of medical treatment is also somewhat
troubling. ... [It is]... contrary to the historical underpinning
of the 'right to die' judgements. These judgments were grounded in
the common law position that unconsented-to medical treatment, like
other unconsented-to touchings, is an assault or battery, and therefore
patients have a presumptive right to refuse medical treatment. Whatever
the merits of extending this doctrine to the extreme at which medical
treatment can be refused in all circumstances, even when death is
the likely result (as most United States courts have held), there
is no means in logic to extend the right to refuse treatment
to include the right to insist on harmful treatment, however
little the difference may be in real-life consequences or however
formalistic the distinction may seem to some.
The Court of Appeals for the Ninth Circuit did attempt at some length
to justify its extension of the right to refuse treatment to include
the right to insist on harmful treatment. That justification, however,
appears under its later discussion of whether the state's interest
in preventing suicide should defeat the pre-existing liberty interest
in choosing the time and manner of one's own death, not under its
discussion of the scope of the liberty interest itself.
- Note that Australian courts have not articulated a 'state interests'
doctrine of this kind.
- See N. Cica, supra note 1.
- They stated the following:
The Oregon District Court's reasoning conflicts squarely with the
reasoning of this opinion and with the legal conclusions we have reached.
Here, we determine that a statute that prohibits doctors from aiding
terminally ill persons to hasten their deaths by providing them with
prescription medications unconstitutionally burdens the liberty interests
of the terminally ill. The benefit we conclude the terminally ill
are entitled to receive in this case - the right to physician-assisted
suicide - is precisely what Judge Hogen determined to be a burden
and thus unlawful. In short, Lee treats a burden as a benefit
and a benefit as a burden. In doing so, Judge Hogan clearly erred.
Lee not only does not aid us in reaching our decision, it is
directly contrary to our holding.
- Beezer CJ identified a liberty interest under the due process clause
in committing suicide, but refused to describe it as 'fundamental'.
He thereby refused to categorise it as the kind of privacy right which
the Supreme Court has identified as deserving of greatest protection
from state interference. He instead described this liberty interest
(and, moreover, the right to abortion affirmed in Casey and the
right to refuse unwanted medical treatment affirmed in Cruzan)
as 'nonfundamental' and therefore more easily outweighed by competing
state interests.
Beezer CJ justified his refusal to categorise this liberty interest
as fundamental by referring to the Supreme Court's unwillingness to
identify new fundamental rights protected under the Due Process Clause.
He therefore applied the restrictive test that the Supreme Court had
used in Bowers v. Hardwick 478 US. 186 (1986) to reject the
claim that homosexuals have a fundamental constitutional right to
engage in private sexual conduct. Under that test, a new fundamental
right will only exist if is deeply rooted in the nation's traditions
and history, and if it can be considered so implicit in the concept
of ordered liberty that neither liberty nor justice would exist if
it were sacrificed. Beezer CJ concluded that the purported right to
assisted suicide failed both limbs of this test.
Note that the majority judges were highly critical of the Supreme
Court's approach in Bowers v. Hardwick, describing it as 'aberrant.'
- Having concluded that the liberty interest in question was not 'fundamental',
Beezer CJ employed what is known as the 'rational relationship test'
to assess whether the Washington statute violated the due process clause.
Under that test, a statute is constitutional if it rationally advances
some legitimate government purpose. Beezer CJ also indicated, however,
that had he employed the more stringent tests that are used when a 'fundamental'
liberty interest is under threat (either the 'strict scrutiny test',
or the 'balancing test' used by the majority), the strength of the state
interests involved here would have lead him to the same conclusion.
- Echoing the (dissenting) approach of Beezer CJ in Compassion in
Dying v. State of Washington, the majority noted the general reluctance
of the Supreme Court of the United States to expand the list of fundamental
rights protected by the Constitution, and its particular reluctance
to identify new liberty interests encompassed by the right to privacy
derived from the Due Process Clause. Given this reluctance, the majority
felt it would be inappropriate for a court lower in the judicial hierarchy
to take a more expansive approach to identifying new fundamental due
process rights. The majority therefore used the Bowers v. Hardwick
test to reject the asserted right to assisted suicide:
As in Bowers, the right contended for here cannot be considered
too implicit in our understanding of ordered liberty that neither
justice nor liberty would exist if it were sacrificed. Nor can it
be said that the right to assisted suicide claimed by plaintiffs is
deeply rooted in the nation's traditions and history. Indeed, the
very opposite is true.
- For an assessment of the constitutional law implications of these
cases, see R. Dworkin, 'Sex, Death and the Courts' (1996) New York
Review of Books, 8 August 1996, pp 44-50.
- This Act does not apply in Scotland, where the legal position is
less clear. Note the ruling of the European Commission on Human Rights
in R. v. United Kingdom (1983) 6 EHRR 50. In that case, the European
Commission rejected the claim by a member of the Voluntary Euthanasia
Society that his conviction under section 2, for referring people seeking
assistance in suicide to a doctor who was prepared to help them, violated
Article 8 of the European Convention on Human Rights (right to respect
for his private life).
- Suicide and attempted suicide are no longer crimes in the United
Kingdom.
- English courts have established that the common law crime of murder
is committed where a person 'unlawfully kills any reasonable creature
in being and under the Queen's peace with intent to kill or cause grievous
bodily harm the death following within a year and a day.'
- The Voluntary Euthanasia Legalisation Society has been in existence
ever since. It is now known as the Voluntary Euthanasia Society; since
1980, there has also been a separate Voluntary Euthanasia Society of
Scotland.
- For discussion of the Parliamentary debates on this Bill, see J.
Gould and Lord Craigmyle (eds), Your Death Warrant? , Geoffrey
Chapman Ltd, London, 1971, pp 38-44.
- See ibid pp 44-48.
- See ibid pp 136-144 for the Explanatory Memorandum and text
of the Bill.
- [1993] 2 WLR 316. In this case, the House of Lords authorised the
withdrawal of artificial hydration and nutrition from Anthony Bland,
a patient who had been in a persistent vegetative state since being
injured in the Hillsborough disaster in 1989.
- House of Lords, supra note 12, p 7.
- See ibid, pp 3-6.
- Ibid, para 236.
- See N. Cica, supra note 1.
- House of Lords, supra note 12, para 20.
- Ibid, paras 278 and 237.
- Ibid, paras 293 and 259-260.
- Ibid, paras 294 and 261.
- Ibid, para 237.
- Ibid, para 237.
- Ibid, paras 238-9.
- Ibid, para 237.
- Ibid, paras 262 and 295.
- Ibid, paras 287 and 276.
- Ibid, para 276.
- Ibid, paras 288 and 276.
- Ibid, paras 289 and 276.
- Ibid, paras 290 and 276.
- Ibid, paras 291 and 276.
- Government Response to the Report of the Select Committee on Medical
Ethics, Cm 2552, London, HMSO, May 1994.
- Ibid, p 1.
- Ibid.
- Ibid, p 5.
- Ibid.
- Ibid.
- Ibid, p 3.
- Following the passing of the Death With Dignity Act 1994 in
Oregon.
- On 16 January 1996 the Parliamentary Secretary of the Lord Chancellor's
Department was asked what response the Government intended to make to
the Law Commission's Report on Mental Incapacity (discussed above).
The response included the following: 'The Government wish to emphasise
that they fully support the views of the House of Lords Select Committee
on Medical Ethics that euthanasia is unacceptable and have no plans
to change this policy'.
- Rodriguez v. British Columbia (Attorney General) (1993) 107
DLR (4th) 342. For detailed discussions of the legal and philosophical
implications of this case, see: M. Somerville 'Death Talk in Canada:
The Rodriguez Case' (1994) 39 McGill LJ. 602; L. Weinrib,
'The Body and the Body Politic: Assisted Suicide under the Canadian
Charter of Rights and Freedoms' (1994) 39 McGill L.J. 618;
B. Freedman, 'The Rodriguez Case: Sticky Questions and Slippery
Answers' (1994) 39 McGill L.J. 644; E. Keyserlingk, 'Assisted
Suicide, Causality and the Supreme Court of Canada' (1994) 39 McGill
L.J. 708; E. Bereza, 'The Private and Public Deaths of Sue Rodriguez'
(1994) 39 McGill L.J. 719; I. Holloway, 'Case Note: Is There
A Right to Assisted Suicide Under Canadian Law?' (1994) 17 UNSWLJ
617; I. Dundas, 'Case Comments: Rodriguez and Assisted Suicide
in Canada' (1994) 32 Alberta Law Review 811; P. Thomson, 'The
Law and Active Euthanasia: Whose Life Is It Anyway?' (1995) 2 Journal
of Law & Medicine 233.
- Under section 241 of the Canadian Criminal Code: Every one
who:
(a) counsels a person to commit suicide; or
(b) aids or abets a person to commit suicide; and
Whether suicide ensues or not, is guilty of an indictable offence
and liable to imprisonment for a term not exceeding fourteen years.
- See further Morgentaler v. R (1988) 44 DLR (4th) 385 (Supreme
Court of Canada).
- See further M. Smith, S. Alter and S. Harder (Research Branch of
the Library of Parliament, Canada), Euthanasia and Cessation of Treatment
- Current Issue Review 91-9E, Research Branch of the Library of
Parliament, Ministry of Supply and Services Canada, 1994, pp 7-11; I.
Holloway, supra note 220 at 619-626; I. Dundas, supra note
220 at 812-815.
- Sopinka J wrote the joint judgment of the five majority judges: Sopinka,
La Forest, Gonthier, Iacobucci and Major JJ.
- McLachlin, L'Heureux-Dubé and Cory J. The other dissenting
judge, Lamer CJ, did not address this issue.
- P. Thompson, supra note 220 at 243.
- M. Smith et al, supra note 223, p 10.
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