4 Legislative attempts to regulate active voluntary euthanasia

A number of states and territories have made attempts to legalise active voluntary euthanasia. In November 2013 the Voluntary Assisted Dying Bill 2013 was defeated by only two votes in the Tasmanian Parliament. To date only the Northern Territory has been successful in enacting legislation (the Act having been subsequently constitutionally overridden by the Commonwealth). Even today the Northern Territory’s statutory scheme is of continuing relevance as it has formed the benchmark for subsequent reform proposals, including the proposed scheme currently before the Commonwealth Parliament.

The key features of the Northern Territory Act are summarised below. Also summarised is the proposed Commonwealth scheme which attempts to introduce a federal regime to regulate active voluntary euthanasia. Being a federal scheme, issues are raised relating to the constitutional power the Commonwealth possesses to enact such legislation, which are also discussed.

4.1 Rights of the Terminally Ill Act 1995 (NT)

The Rights of the Terminally Ill Act 1995 (NT) (NT Act) Act set out a statutory regime under which physician-assisted suicide and active voluntary suicide were permitted without violating the criminal or any other applicable law.[119]

The NT Act provided for neither an unqualified ability to end life nor an unqualified affirmation of a competent adult’s right to assistance in dying.[120] Instead the Act allowed a doctor to comply with a request from a terminally ill, competent adult patient for assistance in ending the patient’s life where specified conditions were satisfied.[121] Such conditions included:

The terminal illness is causing the patient ‘severe pain and suffering’ and there are no palliative care options that alleviate this to a level acceptable to the patient.[122]

Having been given information on prognosis and treatment options by a palliative care specialist, the patient informs the doctor of a desire to end their life.[123]

The doctor is satisfied as to the terminal nature of the prognosis and that the only medical treatment available is palliative care (a specialist doctor must confirm the doctor’s prognosis and a psychiatrist must confirm the patient is not suffering from a treatable clinical depression).[124]

A patient (or where physically unable, an agent of the patient) must sign a witnessed certificate of request (no witness must knowingly stand to gain a financial or other advantage as a result of the death), and the patient must have access to a qualified interpreter where required.[125]

The imposition of two ‘cooling off’ periods.[126]

Even where all these conditions had been met, the patient was entitled ‘at any time and in any manner’ to rescind the request for assistance in dying.[127] Also a doctor who received a request to assist with euthanasia could ‘for any reason and at any time, refuse to give that assistance’.[128] Where the doctor assisted the patient, the doctor could do so by prescribing and/or preparing and/or administering the most appropriate lethal substance.[129] The doctor was required to provide information to friends and family, answer questions afterwards and keep detailed written records (including reporting the death to the Coroner who in turn reports to the Attorney-General).[130]

A doctor who complied with the legislative regime and assisted in euthanasia was immune from legal and professional disciplinary action provided the assistance was undertaken in good faith and without negligence.[131] This immunity extended to other relevant health professionals.[132] Strict penalties were imposed for threats to a doctor or other person to assist; deception/improper influence to procure the signing and/or witnessing of a certificate of request and failure to comply with record-keeping and reporting requirements.[133]

(a) Constitutional issues

The Commonwealth Parliament has the power under section 122 of the Australian Constitution to enact its own legislation to override the NT Act.[134] The power under section 122 of the Constitution is a plenary power and enables the Commonwealth Parliament to pass legislation to override any Northern Territory law.[135]

Mr Kevin Andrews MP introduced a Private Member’s Bill into the Commonwealth Parliament for the express purpose of overriding the NT Act.[136] The Commonwealth Euthanasia Laws Act 1997 was passed two years later which had the effect of overriding the NT Act and rendering it invalid.[137]

In March 2016 Senator Richard Di Natale introduced a Private Member’s Bill into the Commonwealth Parliament entitled the Restoring Territory Rights (Dying with Dignity) Bill 2016. The purpose of the Bill is to repeal the Euthanasia Laws Act 1997 (Cth). The Bill is not intended to restore the operation of the Rights of the Terminally Ill Act 1995 (NT), but only to restore the powers of the Legislative Assemblies in the ACT and Northern Territory to make laws in relation to voluntary euthanasia.[138]

4.2 Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (Cth)

The Medical Services (Dying with Dignity) Exposure Draft Bill 2014 (Cth) (Draft Bill)[139] was prepared by Senator Richard Di Natale of the Australian Greens. The key features largely mirror the regime proposed under the NT Act (the detail of which will not be repeated here).

In summary, the objectives of the Draft Bill were to recognise the right of a mentally competent adult who is suffering intolerably from a terminal illness to request a medical practitioner to provide medical services to the person to end their life.[140] It also granted to a medical practitioner who provided such services immunity from liability in civil, criminal and disciplinary proceedings.[141]

Key provisions set out the ability to make a request and the pre-conditions to be met in accessing dying with dignity medical services.[142] This included the ability to rescind a request as well as the provision of safeguards (information provision, three doctor sign off, Certificate of Request).[143] There were record-keeping obligations and offence provisions (including failure to keep records and undue influence) as well as exclusion of liability provisions.[144]

(a) Senate Inquiry/Constitutional issues

On 24 June 2014 the Senate referred the Draft Bill to the Legal and Constitutional Affairs and Legislation Committee for inquiry and report by 27 October 2014.[145] The Senate Committee made two recommendations: the first that technical and other issues raised in evidence to the Committee be addressed and further advice sought of relevant experts before the Bill is taken further.[146] Secondly that if a Bill dealing with this broad policy issue is introduced in the Senate, that Party Leaders allow Senators a conscience vote.[147]

The Senate Inquiry also considered possible issues in relation to the constitutionality of the Draft Bill, specifically the power of the Commonwealth Parliament to legislate for euthanasia.[148] This issue will be considered in some detail. Four constitutional heads of power have been referred to in the Draft Bill and will be considered in turn.

(i) The medical services power[149]

Contrasting views were submitted to the Senate Inquiry on whether euthanasia would be covered under this head of power. Views against the proposition included ‘if you have reached, by definition, an end of what medical treatment can do, then that which you are doing is not medical treatment’.[150] Arguments for the proposition included ‘some words or concepts expressed in the Constitution…are given ambulatory meaning so as to necessarily encompass later developments in a particular field’.[151] The Public Law and Policy Research Unit at the University of Adelaide concluded that a ‘dying with dignity medical service’ is a medical service within the meaning of subsection 51(xxiiiA) of the Constitution.[152] The basis for this is that the meaning of ‘medical services’ ‘must be informed by the dynamic nature of the medical practice’ and that, ‘from a purely constitutional standpoint, there is no obvious inference to be drawn that the meaning of “medical service” is solely limited to the “preservation of life”.’[153]

(ii) The corporations power[154]

The corporations power has been interpreted broadly by the High Court to extend to any law that ‘imposes a duty or liability, or confers a right or privilege, only on a constitutional corporation’.[155] This includes regulating the conduct of ‘those through whom it acts’ including employees.[156] The High Court has emphasised that to fall within the corporations power, the law needs to regulate or permit acts done by or on behalf of corporations.[157]

A number of arguments were mounted against the use of this head of power to support the Draft Bill. This included that there was no requirement in the Bill that the medical practitioner provide the service on behalf of a constitutional corporation.[158] Even where that was the case, doubts exist as to whether this amounts to a ‘sufficient’ enough connection to bring it within the coverage of the corporations power.[159] The Public Law and Policy Research Unit at the University of Adelaide suggested that validity under this head of power would be strengthened if the Bill was ‘confined to a medical practitioner employed by a constitutional corporation acting in the course of their employment by that corporation’.[160] If that is accepted then arguably the intended coverage of the Bill would be far more limited than that potentially offered under the ‘medical services’ head of power.

(iii) The territories power[161]

It was generally accepted by submitters to the Senate Inquiry that insofar as conduct occurring in a territory was concerned, the head of power was unlimited and unqualified’ in subject matter covered and could easily be relied on.[162] The obvious limitation with this head of power is that it only applies to the territories and precludes national coverage.

(iv) Implied powers

The Bill also refers to and relies on the ‘implied legislative powers of the Commonwealth’.[163] In the absence of an Explanatory Memorandum or similar document no submissions considered whether there was an applicable implied power upon which the Bill could rely.[164]

(b) Consequences of constitutional invalidity

It should be noted that the Draft Bill would provide medical practitioners with immunity from ‘civil, criminal and disciplinary action’. This requires the Bill ‘to create an inconsistency with the relevant State legislation under s 109 of the Constitution, thus rendering the State laws inoperative’. Accordingly, if the Bill is enacted but later found to be unconstitutional, medical practitioners may face the prospect of homicide charges despite fully complying with the provisions of the Bill.

It seems on balance that a relevant constitutional head of power (most likely the medical services power) may be relied on should Parliament decide to proceed with enacting a federal active voluntary euthanasia regime. If such legislation was enacted it would most likely be subject to constitutional challenge in the High Court where the question of whether a ‘medical service’ includes a service that ‘terminates’ life would be determined.

While currently a comprehensive statutory scheme regulating active voluntary euthanasia practices does not exist in Australia, this is not the case elsewhere. Active voluntary practices have been legislated for, to varying extents, in other comparable countries which are considered below.

4.3 International legislative schemes

A number of countries have legalised certain forms of active voluntary euthanasia and/or assisted suicide (the latter, for the purposes of this paper, is considered a form of active voluntary euthanasia). Some of these schemes and/or provisions have been summarised below.

(a) The Netherlands

With the passing of the Termination of Life on Request and Assisted Suicide (Review Procedures) Act (2002) (Neth),[165] the Netherlands became the first country in the world to legalise euthanasia.[166] News reports state that strict conditions must be satisfied including that patients have an incurable condition and face unbearable suffering.[167] Key criteria include the patient has to be in full possession of mental faculties; a second medical opinion must be sought; and after the event it is referred to a regional review committee (which includes a doctor, a legal expert and a medical ethicist).[168] The Act allows for both doctor administered and self-administered assisted (assisted suicide) dying.[169] Additionally, a patient can request doctor-administered assisted dying through an advance directive.[170]

(b) Belgium

Belgium became the second EU country to legalise euthanasia with the enactment of the Belgium Act on Euthanasia (28 May 2002).[171] News reports describe the Act as allowing adults who are in a ‘futile medical condition of constant and unbearable physical or mental suffering that cannot be alleviated’ to request voluntary euthanasia.[172] Doctors who practise euthanasia commit no offence if prescribed conditions and procedures have been followed (the patient has legal capacity; the request is made voluntarily and repeatedly with no external pressure and the patient’s medical state is hopeless with constant, unbearable pain or mental suffering which cannot be relieved).[173] The Act does not cover assisted suicide[174] (only doctor-administered assisted dying) although the Belgian federal oversight body, Commission Federale de Controle et Evaluation acknowledges that some cases of self-administered assisted dying are covered by the law.[175] Similar to the Netherlands, a patient can request doctor-administered assisted dying through an advance directive.[176] In May 2014, Belgium became the first country in the world to allow children access to euthanasia.[177]

(c) Luxembourg

Luxembourg became the third European country to legalise euthanasia[178] with the passing of The Law of 16 March 2009 on Euthanasia and Assisted Suicide (Lux).[179] News reports state that the law permits euthanasia and assisted suicide in relation to those with incurable conditions (requirements include repeated requests and the consent of two doctors and an expert panel).[180] Doctors who provide euthanasia and assisted suicides do not face ‘penal sanctions’ or civil suits for damages and interest.[181]

(d) Switzerland

Article 115 of the Swiss Criminal Code (1994) states that inciting or assisting suicide is a punishable offence, however it is only a crime if it is undertaken out of self-interested motivations.[182] This has the effect of ‘legalising’ assisted suicide in Switzerland without having a specific euthanasia law in place.[183] In Switzerland, assistance is provided almost exclusively by a range of not-for-profit right to die organisations[184] (which can involve non-physicians).[185] However it is the patient who must self-administer the ‘lethal dose’.[186] All forms of active euthanasia (i.e. doctor-administered assisted dying) remain prohibited in Switzerland.[187]

(e) The United States of America (states of Oregon, Washington, Vermont, Montana)[188]

Active euthanasia remains illegal in most of the United States.[189] The United States does not provide for federal provisions or a federal regime for active voluntary euthanasia practices.

Assisted suicide is legal in the states of Oregon, Washington, Vermont and Montana,[190] with legislation passed in both Oregon and Washington.[191] In both Oregon and Washington only self-assisted dying is permitted.[192] Doctor-administered assisted dying and any form of assistance to help a person commit suicide outside the provisions of these Acts remains a criminal offence.[193]

(f) Canada

On 6 February 2015 the Supreme Court of Canada found that the prohibition on physician-assisted death in place in Canada (in ss 14 and 241(b) of the Canadian Criminal Code) unjustifiably infringed the right to life, liberty and security of the person in article 7 of the Charter of Rights and Freedoms in the Canadian Constitution.[194] The Supreme Court declared the infringing sections of the Criminal Code void:

insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. ‘Irremediable’, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.[195]

The Supreme Court suspended the declaration of invalidity of the provisions in the Criminal Code for 12 months, to give the Canadian legislatures time to revise their laws. On 15 January 2016 the Supreme Court granted the Canadian governments a further 4 months to make any law reform.[196] This means that the Supreme Court’s decision will take effect, and the prohibition on physician-assisted suicide in Canada will therefore end, on 6 June 2016.

The Supreme Court made clear that:

nothing in the declaration of invalidity…would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures.[197]

Since the Supreme Court’s decision, the Canadian governments have been exploring options for legalising and regulating physician-assisted dying. A Special Joint Committee on Physician-Assisted Dying was appointed by the Canadian Parliament to ‘make recommendations on the framework of a federal response on physician-assisted dying respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians’.[198] The Special Joint Committee released its report in February 2016, recommending a legislative framework which would regulate ‘medical assistance in dying’ by imposing both substantive and procedural safeguards, namely:

Substantive Safeguards:

A grievous and irremediable medical condition (including an illness, disease or disability) is required;

Enduring suffering that is intolerable to the individual in the circumstances of his or her condition is required;

Informed consent is required;

Capacity to make the decision is required at the time of either the advance or contemporaneous request; and

Eligible individuals must be insured persons eligible for publicly funded health care services in Canada.

Procedural Safeguards:

Two independent doctors must conclude that a person is eligible;

A request must be in writing and witnessed by two independent witnesses;

A waiting period is required based, in part, on the rapidity of progression and nature of the patient’s medical condition as determined by the patient’s attending physician;

Annual reports analyzing medical assistance in dying cases are to be tabled in Parliament; and

Support and services, including culturally and spiritually appropriate end-of-life care services for Indigenous patients, should be improved to ensure that requests are based on free choice, particularly for vulnerable people.[199]

It should be noted that physician-assisted has already been legalised in the province of Québec. Québec passed An Act respecting end-of-life care (the Québec Act) in June 2014, with most of the Act coming into force on 10 December 2015. The Québec Act provides a ‘framework for end-of-life care’ which includes ‘continuous palliative sedation’ and ‘medical aid in dying’, defined as ‘administration by a physician of medications or substances to an end-of-life patient, at the patient’s request, in order to relieve their suffering by hastening death.’[200] In order to be able to access medical aid in dying under the Québec Act a patient must:

(1) be an insured person within the meaning of the Health Insurance Act (chapter A-29);

(2) be of full age and capable of giving consent to care;

(3) be at the end of life;

(4) suffer from a serious and incurable illness;

(5) be in an advanced state of irreversible decline in capability; and

(6) experience constant and unbearable physical or psychological suffering

(7) which cannot be relieved in a manner the patient deems tolerable.[201]

The request for medical aid in dying must be signed off by two physicians.[202] The Québec Act also established a Commission on end-of-life care to provide oversight and advice to the Minister of Health and Social Services on the implementation of the legislation regarding end-of-life care.[203]

4.4 Summary

Unlike passive voluntary euthanasia, active voluntary euthanasia does not, in a regulatory sense, enjoy the same widespread acceptance. This is despite the apparent widespread public support for these practices as revealed in general polls on the issue. Arguments for and against these practices range from the role of the doctor, support of palliative care and the ‘slippery slope’ to arguments about legitimacy and transparency in our laws and the importance of autonomy in the right to choose.

Currently legislative provisions on the administering of painkillers that hasten death are inconsistently regulated across states and territories. In contrast the performance of a ‘lethal act’ (or assistance of) is consistently regulated in criminal law but reveal a criminal justice system seeking out mechanisms for mitigation of outcomes. From this situation have emerged various legislative attempts that seek to directly regulate active voluntary euthanasia practices. While such laws are not yet in existence in Australia, elsewhere such legislative schemes have been enacted and are in operation today.

Another relevant source of guidance is to be found in a human rights-based analysis, which is contained in the following section.