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
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
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
- 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;
- 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
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
- 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
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
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
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
... 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
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
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
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
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
- in good faith and without negligence; and
- in accordance with proper professional standards of palliative
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
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
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
The relevant sections of the Criminal Code Act 1995
(Qld) have not yet commenced and will not do so until at least 14
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
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
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
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
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
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
- 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
- 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)
- 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
- 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
- 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
- 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
- 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
- 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
The legislation imposes strict penalties for certain
- 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
- 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
- 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
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
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
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;
- 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
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
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
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
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
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
- 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
- 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
- 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
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
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
- The request for euthanasia or physician-assisted suicide must
come only from the patient and must be entirely free and
- The patient's request must be well considered, durable and
- 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
- 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
- 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
- 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
- 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
- the necessity defence is not limited to cases where the patient
is in the terminal phase of an illness of somatic (physical)
- 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
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
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
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
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
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
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
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
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
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
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
- 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
- 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
- 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
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
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
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
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
- 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
- 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
- the state's interest in avoiding the involvement of third
parties and in precluding the use of arbitrary, unfair or undue
- 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
- the state's interest in protecting the integrity of the medical
- 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.
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
- 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
- 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
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
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
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
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'
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
- 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
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
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
- this exception to the general prohibition of intentional
killing 'would inevitably open the way to its further erosion';
- vulnerable people - the elderly, lonely, sick or distressed -
would feel pressure, whether real or imagined, to request early
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
- Training of health-care professionals should better prepare
them for ethical responsibilities, by giving greater priority to
health-care ethics and counselling and communication
- 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
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
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
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
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
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
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
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
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
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
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
- 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
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
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
- 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
- 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
- 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.
- 'Kennett Flags Right-to-Die Bill,' The Age, 26 May
- 'Lobbyists Call it a Test Law,' The Age, 26 May
- 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
- P. Baume and E. O'Malley, 'Euthanasia: Attitudes and Practices
of Medical Practitioners', (1994) 161(2) The Medical Journal of
- H. Kuhse and P. Singer, 'Euthanasia. A Survey of Nurses'
Attitudes and Practices,' (1992) 21(8) The Australian Nurses
- 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  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
- Airedale NHS Trust v. Bland  2 WLR 316 at 370
per Lord Goff, emphasis added.
- R v. (Bodkin) Adams  Crim LR 354 per Devlin
- 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
- (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
- 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  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,
- 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
- 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
- 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.
- Queensland Parliamentary Debates, 16 June 1995, p
- M. Otlowski, 'Mercy Killing Cases in the Australian Criminal
Justice System' (1993) 17 Criminal Law Journal 10 at 12 n
- 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
- 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
- R v. Barnes, unreported, NSW Supreme Court, 16
November 1981, discussed in M. Otlowski, supra note 41 at
- 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
- Section 7(1)(c).
- See section 3 for the definition of 'qualified
- 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).
- 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
- 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
- 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
- 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 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'  108 Law Quarterly Review 51 at
- 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
- 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
- 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],
- 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)
- 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)
- 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
- 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]);
- the Dutch Association for Psychiatry (in its 1992 paper
'Mededelingen bestuur' (1992) Nieuws en Mededelingen
- 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
- 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
- United States Court of Appeals for the Ninth Circuit, 6 March
- United States Court of Appeals for the Second Circuit, 2 April
- 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
- 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
- Pierce v. Society of Sisters (1925) 368 US 510.
- Planned Parenthood v. Casey (1992) 112 S. Ct 2791 at
- (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
- O'Connor J rejected any legal distinction between artificial
feeding and hydration and other forms of life-sustaining medical
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
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
- 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
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
- Suicide and attempted suicide are no longer crimes in the
- 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
- 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.
-  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, p 5.
- 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
- 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
(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
- 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.