3 Active voluntary euthanasia

The acceptance of the practice of passive voluntary euthanasia, however defined, is in stark contrast to the practice of ‘active’ voluntary euthanasia.

Active voluntary euthanasia can be said to occur when medical intervention takes place, at the patient’s request, in order to end the patient’s life. In contrast to passive voluntary euthanasia, which involves an ‘omission’ of steps or treatment, active voluntary euthanasia concerns a person undertaking positive steps to end a life. This can include administering high doses of painkillers that hasten death or providing and/or injecting a lethal substance or dose to end life.

Thus, unlike passive euthanasia, in which the cause of death is the underlying disease or condition, with active voluntary euthanasia the death results from the action of a medical professional or other party.

The Senate Legal and Constitutional Affairs Legislation Committee’s Inquiry into the Exposure Draft of the Medical Services (Dying with Dignity) Bill 2014 (Senate Inquiry) received hundreds of submissions in support of and against the Bill. As will be explored in section 4.2 below, that Bill sought to legalise and regulate active voluntary euthanasia.[54]

Some of the major arguments for and against the legalisation of active voluntary euthanasia as raised at the Senate Inquiry are summarised below, followed by an overview of the current legal situation, in section 3.3.

3.1 Arguments against legalising active voluntary euthanasia

(a) Role of the doctor

Arguments against the legalisation of active voluntary euthanasia include the view that such practices undermine the ‘role of the doctor’ as a ‘healer’, as characterised by the Hippocratic Oath.[55] For example, the Family Council of Victoria stated in its submission to the Senate Inquiry that:

When the medical profession becomes involved in killing, the delicate trust relationship between a patient and doctor is undermined. People trust their lives to doctors and health care workers in the knowledge that they are dedicated to the preservation of life, to healing, to caring. This after all is the basis of the Hippocratic tradition. The Hippocratic Oath includes the commitment not to kill a patient, even if the patient requests such a course.[56]

This is a contested view. An alternative argument is that the relationship between doctor and patient can be more suitably defined in the terms of a provider/consumer relationship, whereby the patient as a consumer ‘can ask for whatever he or she wants’, and the doctor ‘can choose whatever he or she wants to provide.’[57] Under such an interpretation, a doctor taking action which could fall within the meaning of active voluntary euthanasia may be justified.

(b) Palliative care

Linked to this argument is the role of palliative care. A number of people submitted to the Senate Inquiry that the introduction of voluntary euthanasia would undermine investment in, as well as the role and value placed on, palliative care.[58]

In his evidence to the Senate Inquiry, Assistant Professor Andrew Cole, a palliative care specialist, outlined that providing effective palliative care and support could be an alternative to euthanasia. He explained:

[H]astening times is not necessarily the way forward. Rather, it is providing care and support, letting the natural processes take their course and choosing to withdraw therapies that are not reasonable or not helpful.[59]

Others argued that the introduction of active voluntary euthanasia would not undermine palliative care but would instead provide an additional option within the palliative care process.[60] This argument is based on the premise that there will be circumstances ‘where even the best palliative care will not relieve the suffering or distress of a terminally ill patient’.[61] For example, the South Australian Voluntary Euthanasia Society explained:

It is widely acknowledged, including by Palliative Care Australia and the Australian Medical Association, that even the best of palliative care cannot help all patients – between 5-10% find their suffering so unbearable that they persistently request an assisted death. Our palliative and medical care is highly regarded, but it can never be 100% effective.[62]

(c) Slippery slope

The Senate Inquiry heard from a number of groups warning against the ‘slippery slope’ effect that would result from the enacting of active voluntary euthanasia legislation. Specifically, the concern is that the legalisation of voluntary euthanasia in terminal cases would then lead to the practice of other forms of euthanasia such as involuntary euthanasia or voluntary euthanasia in non-terminal cases.[63] For example, the Australian Christian Lobby (ACL) stated that:

[W]e have clearly seen the slippery slope well and truly in action in Holland and in Belgium, in particular, where we have seen people being euthanized without their specific consent. That is not voluntary euthanasia.[64]

However, many submissions countered this view. For example, Professor Margaret Otlowski argued that:

The most commonly cited objection to the legalisation of active voluntary euthanasia is the ‘slippery slope’ argument: that the legalisation of active voluntary euthanasia would lead to widespread involuntary euthanasia and the termination of lives no longer considered socially useful. This is, however, a completely unsubstantiated argument. The ‘slippery slope’ argument is typically made without regard to the risks of abuse or other problems involved in retaining the present law.13

Similarly, Christians Supporting Choice stated:

From my understanding, in Oregon they have had this legislation for 17 years and they have done studies which have shown that this slippery slope you are referring to does not exist. It is a scaremongering tool used by those who are ideologically opposed to the proposed legislation and who will do anything they can to stop the law. We in Christians Supporting Choice side with loving compassion and mercy and not with religious dogmatic adherence to a particular point of view…There is no slippery slope.16

Further, there were criticisms that the slippery slope argument, in being focused on the potential for active voluntary euthanasia to lead to other, more controversial forms of euthanasia, did not provide a strong argument against the practice of active voluntary euthanasia itself. Mr Peter Short, a man with terminal cancer who appeared before the Committee, argued:

Is it rational to take a position of denying the terminally ill and suffering the choice at the end of their life, because we are concerned we cannot put effective rules around a dying process? We manage road rules, alcohol rules and smoking rules. All are slippery slopes far more difficult and destructive, but all well-accepted in society and in law.[65]

Finally, Dying with Dignity Victoria argued that a ‘slippery slope’ was more likely to occur ‘in an environment where voluntary euthanasia is prohibited rather than [in] a society where a transparent, legislative framework regulates the occurrence.’[66]

3.2 Arguments in support of legalising active voluntary euthanasia

(a) Legitimacy and transparency

This leads to a broader, related argument in support of a legislative approach which would introduce ‘appropriate scrutiny, support and regulation’ so that this practice that is ‘already occurring’ is undertaken in a safe as possible manner.[67] The law would also provide much-needed certainty as well as necessary safeguards for patients and for doctors who provide assistance.[68]

(b) Personal autonomy – the right to choose

A number of submitters to the Senate Inquiry saw the decision to end one’s life as a ‘personal one’,[69] underpinned by ‘the basic principle of respecting an individual’s right to choose’.[70] In a 1994 US Federal District Court decision on assisted suicide, the judge relied on the claim by three Supreme Court Justices in an abortion case that:

Matters involving the most intimate and personal choices a person may make in a life-time are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, or meaning, of the universe, and of the mystery of human life.[71]

In the Australian context, Professor George Williams argues that the judge’s decision in the Rossiter case was one ‘based upon the autonomy of the individual’[72] – specifically a person’s right to refuse food in order to bring about their own death.[73] However in his view ‘the law places major limits on autonomy’ where ‘the right to choose does not extend to the more dignified and humane option of voluntary assisted dying’.[74]

A number of these moral and ethical concerns are summarised in an excerpt of an article published by Father Frank Brennan:

Many Australians still believe that physician assisted suicide is wrong. While prepared to see a machine turned off, they are opposed to the administration of a lethal injection. They would never seek it for themselves. As health professionals they would never provide such assistance. Others are worried by the possible abuses, fearing that a lethal injection could be administered during a down period in a person’s life, which need not necessarily be the end. But should there be a law against the administration of the injection given that many other Australians believe individuals should have a right to choose?[75]

3.3 Current legal framework

This section will consider the current state of the law within Australia in respect of the regulation of active voluntary euthanasia. As the regulation varies depending on the practice in question, three different types of active voluntary euthanasia practice will be considered:

Where the patient (in excruciating pain) requests the doctor to relieve pain and the doctor administers increased doses of pain-killing drugs that hastens the patient’s death;

Where the patient wants to die and asks the doctor for assistance (prescribing drugs, setting up a mechanism, providing advice) but the lethal act is performed by the patient rather than the doctor;

Where the patient wants to die and asks the doctor for assistance where the lethal act is performed by the doctor.[76]

Each of these scenarios is considered in turn below.

(a) Where the patient (in excruciating pain) requests the doctor to relieve pain and the doctor administers increased doses of pain-killing drugs that hasten the patient’s death

The administering of painkillers in this context is considered an ‘active voluntary euthanasia’ practice for the purposes of this paper because the administering of painkillers is an ‘active act’ (as opposed to an omission) which can ‘hasten death’. A somewhat open question at common law and in legislation regulating this practice is the meaning of ‘hastens death’. One interpretation is that the administering of a significantly increased level of painkiller causes (and therefore ‘hastens’) death. Another interpretation is that when treatment is withheld, resulting in an increase of pain, painkillers are used to abate the pain for long enough so that the illness takes over and ‘hastens’ death in a relatively painless manner.

A number of legislative provisions that regulate the use of painkillers in this context refer for guidance to ‘reasonable treatment’, ‘good medical practice’ and ‘proper professional standards of palliative care’ (see the section below entitled ‘Legislation’). The Australian Medical Association (AMA) characterises ‘the administration of treatment or other action intended to relieve symptoms which may have a secondary consequence of hastening death’ as part of ‘good medical practice’.[77] Presumably this would include the administering of painkillers. However, the acceptable level of painkillers in the circumstances, and whether it is incidental to or causative of a ‘hastened’ death, remains a grey area in the absence of express determination by the courts. Further research would need to be undertaken to confirm whether this has been determined. Arguably, a massive dose of painkillers that ‘cause’ death could be described as a lethal injection ‘by proxy’. In policy terms, it seems unlikely that current legislative provisions extend to cover this scenario, though in the absence of judicial clarification on what is considered ‘reasonable’ this remains unclear. For this reason the regulation of this practice is considered within the active voluntary euthanasia section with this caveat.

(i) Common law

As of the mid-nineties, there had been no criminal prosecutions of doctors in Australia in relation to their administration of pain relieving drugs that have hastened death.[78] Further research needs to be undertaken to confirm this is still the case.

In the UK (as at the mid-nineties) an exception existed at common law if the doctor’s intention could be described as an intention to relieve pain in terminal situations rather than as an intention to end the patient’s life.[79] In the absence of the required judicial clarification in Australia, it cannot be assumed that the legal ‘exception’ that exists in English law would necessarily form part of Australian criminal law.[80] It has been suggested that under a strict interpretation of the relevant Australian homicide laws a doctor may not be immune from liability for murder in this situation.[81] Even though the doctor may not have ‘intended’ to cause death, administering drugs in the ‘knowledge’ that the patient may die as a result may give rise to liability for murder.[82] In the absence of a determinative case the issue remains untested. The relevant legislative provisions are detailed below.

(ii) Legislation

Legislation in South Australia, Western Australia and Queensland provides some clarification regarding whether and in what circumstances a doctor providing pain relief which hastens death will be criminally liable. The common law position appears to be unaffected by legislation in Victoria, Tasmania, New South Wales and the ACT (in the case of the latter, however, within the context of a statutory right to pain relief). The situation in the Northern Territory is less clear.

Consent to Medical Treatment and Palliative Care Act 1995 (SA):

Section 17(1) applies to the situation where a doctor administers medical treatment to a patient in the terminal phase of an illness ‘with the intention of relieving pain or distress’, where ‘an incidental effect of the treatment is to hasten the death of the patient’.[83] This section provides that the doctor will not be found liable under criminal or civil law if the treatment was undertaken with consent; in good faith and without negligence and in accordance with proper professional standards of palliative care.[84] This provision accords with the UK exception.

Guardianship and Administration Act 1990 (WA):

In Western Australia the Act provides that if a health care professional commences or continues palliative care in accordance with an advance health directive or a decision by an enduring guardian, the health professional is taken to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient.[85]

Also, in 2008 the Western Australian Criminal Code was amended to provide that:

a person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment (including palliative care)…to another person for that other person’s benefit…if the administration of the treatment is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.[86]

Criminal Code Act 1899 (Qld):

Section 282A of the Act absolves a doctor (or a person acting under a doctor’s orders) of criminal responsibility for providing palliative care where such provision is provided ‘in good faith and with reasonable care and skill’ and ‘is reasonable, having regard to the other person’s state at the time and all the circumstances of the case’.[87] The Act makes clear that no liability will arise ‘even if an incidental effect of providing the palliative care is to hasten the other person’s death’.[88] The pain relief will only be judged as ‘reasonable’ if it is ‘reasonable in the context of good medical practice’.[89]

Palliative care for the purposes of that section is defined as ‘care, whether by doing an act or making an omission, directed at maintaining or improving the comfort of a person who is, or would otherwise be, subject to pain and suffering.’[90] Section 282A makes clear that the protection from liability depends on the intention behind the administration of the medication; it provides that ‘nothing in this section authorises, justifies or excuses (a) an act done or omission made with intent to kill another person; or (b) aiding another person to kill himself or herself.’[91]

Medical Treatment Act 1988 (Vic):

The Act provides that its operation ‘does not affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care’.[92] The definition of palliative care includes the provision of ‘reasonable medical procedures for the relief of pain, suffering and discomfort’.[93] Accordingly the Victorian legislation leaves the common law position intact in terms of possible criminal liability for this type of active voluntary euthanasia.[94]

Medical Treatment (Health Directions) Act 2006 (ACT):

Similar to the Victorian legislation, the Act provides that it ‘does not affect any right, power or duty that a medical practitioner or any other person has in relation to palliative care’.[95] It has a similar palliative care definition as including ‘the provision of reasonable medical and nursing procedures for the relief of pain, suffering and discomfort’.[96]

However s 17 of the ACT Act gives statutory recognition to the right of the patient to pain relief. That section provides that a person who has given a health direction that medical treatment be withheld or withdrawn has ‘a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances’.[97] The Act does not indicate what would be ‘reasonable’ for these purposes, merely stating that a health professional must ‘give adequate consideration to the person’s account of the person’s level of pain and suffering’ when administering pain relief to a patient.[98]

Criminal Code Act 1924 (Tas):

Section 154 of the Criminal Code Act 1924 (Tas) provides that:

A person is deemed to have killed another in the following cases where his act or omission is not the immediate, or not the sole, cause of death…(d) where by any act or omission he hastens the death of another who is suffering under any disease or injury which would itself have caused death.

There does not appear to be any statutory exception to this provision for medical professionals providing pain relief.

Crimes Act 1900 (NSW):

There is no provision in the Crimes Act 1900 (NSW) dealing with the administering of pain relief which hastens death.

Advance Personal Planning Act 2013 (NT):

The situation in the Northern Territory is less clear. The Advance Personal Planning Act 2013 (NT) refers to ‘health care’ to which a person can consent under that Act. There is no express reference to palliative care (or therapeutic measures) within the definition of ‘health care’. The Act refers to ‘unlawful health care action’, and provides that ‘this Act does not permit the form of intentional killing of another called euthanasia or the assisting of a person to terminate his or her life’.[99]

The NT Criminal Code does not appear to make any exceptions or provide any defences in relation to the provision of pain relief which hastens death. Section 26(3) of the Code provides that ‘a person cannot authorise or permit another to kill him or, except in the case of medical treatment, to cause him serious harm’. Read together these provisions seem to suggest that while consent to pain relief is permitted, pain relief that ‘hastens death’ may not be covered.

Quite apart from the question of whether the ‘hastening of death’ is caused by or incidental to the administering of painkillers, regulation of this issue is complex and, in many respects, inconsistent across jurisdictions. In contrast the laws that regulate what is clearly described as a ‘lethal act’ (as covered in the following two scenarios) are largely consistent across jurisdictions. However the use of various mechanisms within the criminal justice system to mitigate outcomes in these two situations makes the issue less clear.

(b) Where the patient wants to die and asks the doctor for assistance (prescribing drugs, setting up a mechanism, providing advice) but the lethal act is performed by the patient rather than the doctor

(i) Criminal law

Although the law in Australia no longer criminalises suicide or attempted suicide, assisting suicide is a crime in all Australian states and territories:

In New South Wales, the ACT and Victoria, it is an offence for a person to (1) ‘aid or abet’ a person to commit or attempt suicide, or (2) to ‘incite’ or ‘counsel’ a person to commit suicide if the person does in fact do so (or attempts to do so) as a consequence.[100]

In Queensland and Western Australia, it is an offence to ‘procure’, ‘counsel’ or ‘aid’ another person to commit suicide.[101]

In South Australia ‘a person who aids, abets or counsels the suicide of another, or an attempt by another to commit suicide, shall be guilty of an indictable offence.’[102]

In Tasmania it is an offence to ‘instigate or aid another to kill himself’.[103]

In the Northern Territory it is an offence to intentionally ‘assist’ or ‘encourage’ a person to kill (or attempt to kill) themselves, but only if the person does commit or attempt suicide and the perpetrator’s conduct was in fact a contributing factor.[104]

(ii) How is the law enforced?

As of the mid-nineties, prosecutions for assisting suicide were rare and where they occurred involved provision of assistance from family members or friends with ‘compassionate motives’.[105] This is sometimes described as ‘mercy-assisted suicide’.[106] The law is clear that liability for assisting suicide cannot be avoided by compassionate motives or other extenuating circumstances.[107] Nevertheless, Australian judges have imposed very lenient sentences on people convicted of assisting suicide in these circumstances.[108] Further research would be required to confirm that this remains the general approach.

Note that when the Northern Territory first enacted active voluntary euthanasia legislation in 1996 (described in detail in the next section) physician-assisted suicide was legal in some circumstances.[109] Shortly thereafter the Act was overridden by the Commonwealth, rendering it defunct.

While the criminal law comprehensively and largely consistently regulates this issue, the use of mitigation mechanisms reveal different policy considerations being employed in this context. Attempts at balancing ‘intention’ and ‘outcome’ against an appropriate punitive response seem to underpin this approach. A similar situation can be noted in the third ‘active voluntary euthanasia’ scenario below.

(c) Where the patient wants to die and asks the doctor for assistance where the lethal act is performed by the doctor

(i) Criminal law

If a doctor complies with a patient’s request and performs an act that ends the patient’s life, the doctor will be exposed to criminal liability, namely the offence of murder.[110] In all Australian states and territories, a person who commits an act which causes the death of another, with the intention to cause death, is liable for murder.[111] Life imprisonment is the mandatory sentence for a conviction of murder in the Northern Territory, Queensland, and South Australia.[112] In Western Australia, there are some exceptions to the otherwise mandatory imposition of a sentence of life imprisonment for murder.[113] The sentence for murder is discretionary (with life imprisonment as the maximum sentence) in New South Wales, Victoria, Tasmania and the ACT.[114]

(ii) How is the law enforced?

As of 1996-97, no doctor had been prosecuted for murder in Australia for performing active voluntary euthanasia.[115] Further research is needed to confirm that this is currently the case. There have been a number of cases involving family members and friends, referred to as ‘mercy killing cases’.[116] Similar to assisted suicide provisions, compassionate motives or other extenuating circumstances are not relevant as a defence to liability for murder, but the Australian criminal justice system has treated this situation with leniency:[117]

… a number of mechanisms within the criminal justice system have been invoked to temper the rigours of the criminal law in true instances of mercy killing…These include the exercise of prosecutorial discretion, acquittals (either by the judge or the jury) or findings of guilt on a lesser charge, lenient sentencing by the courts, favourable parole determinations, and the exercise of executive leniency.[118]

As with the second scenario above, criminal law comprehensively regulates this practice, yet available mechanisms have been used to temper the application of these laws and to mitigate outcomes. Against the backdrop of the criminal justice system grappling to find a satisfactory response to these situations, legislation has been proposed in Australia to clarify the regulation of, and make consistent, active voluntary euthanasia practices. These legislative schemes are summarised below.