Advanced healthcare directive

A report tabled by a Victorian parliamentary committee last Thursday encourages the state to become the first in Australia to legalise assisted suicide. The report, Inquiry in End of Life Choices, provides a recommended legislative framework for doctors assisting patients to end their lives. The patient must be over 18, mentally competent, physically suffering (mental suffering, such as depression, would not be considered) and in the last weeks of life. It does not recommend a “right to die” — a patient may request it, but no doctor would be required to comply.

The Victorian government has six months to respond, and if it decides to adopt the recommendations, there would a further 18-month “adjustment” period.

Assisted suicide remains illegal elsewhere in the country. Yesterday, The Guardian reported that Australian Border Force seized and destroyed copies of euthanasia advocate Philip Nitschke’s book The Peaceful Pill, which had been ordered by an elderly Victorian couple. The couple received a note from Border Force saying the book was “prohibited absolutely”.

The closest any other Australian government got to legalising euthanasia was the Northern Territory, which passed the Rights of the Terminally Ill Act in 1995, before the Howard government pulled rank and removed the Territory’s right to legislate on euthanasia in 1997. This wouldn’t be possible in the case of Victoria (as a state, it has legislative sovereignty that the NT doesn’t), and given the growing support for euthanasia in Australia (noted by the report), it seems unlikely the federal government would have the appetite for any kind of similar challenge.

If implemented, where would the reforms place Australia compared to other countries?

Belgium

Euthanasia, including for non-terminal patients, has been legal in Belgium since 2002. It applies for “constant and unbearable physical and mental suffering” — a broad enough definition to include controversial cases, such as a man who cannot accept his sexuality and a murderer and rapist seeking the right to die. Amid heated debate, Belgium extended the right to die to incurably ill children (with the assent of their parents) in 2013. A statement co-authored by Christian, Jewish and Islamic leaders at the time said the logic of the changes would “lead to the destruction of society’s foundations”, but Philippe Mahoux, the Socialist Party senator who sponsored the legislation, countered that giving ill children the right to “die in dignity” was the “ultimate gesture of humanity”.

Canada

Canada’s laws around euthanasia have been up in the air since the British Columbia Supreme Court ruled in 2012 that the Criminal Code of Canada’s prohibition on “aiding and abetting” suicide was overly broad, “grossly disproportionate to the objectives it is meant to accomplish” and had a disproportionate effect on people with disabilities. This was followed by a unanimous ruling by Canada’s Supreme Court in February 2015 that an adult in unbearable physical or mental pain has the right to doctor assisted suicide. Such a person “may be condemned to a life of severe and intolerable suffering” by the ban, according to ruling.

The ruling has not yet resulted in legislative change. However, a bill introduced in April this year that allows access to assisted suicide for terminally ill patients is currently being debated.

Colombia

In 1997, the constitutional court of Colombia ruled no person could be held criminally responsible for taking the life of a terminally ill patient who had given clear authorisation. The Catholic Church in the country strongly opposes euthanasia (the population is estimated to be 70-80% Catholic), and there has only been one legally performed assisted suicide since the ruling, which occurred in 2015.

France

Despite President Francois Hollande’s professed belief in the “right to die with dignity”, euthanasia remains prohibited. However, a 2014 case could change that. Following a decision of the French High Court to authorised doctors to cease treating and feeding Vincent Lambert, a man in a vegetative state since a 2008 car accident, his parents took the case to the European Court of Human Rights. When the European Court upheld the original ruling in 2015, the parents again appealed, once again unsuccessfully.

Luxembourg

Luxembourg became the third European country to legalise euthanasia in 2009. This brought about a constitutional crisis in the country when the devoutly Catholic Grand Duke Henri refused to give his assent to the law. The Luxembourg constitution was subsequently amended so that laws no longer need the monarch’s approval to be enacted. The law allows patients with incurable conditions to be euthanised with the consent of two doctors and a panel of experts.

Netherlands

The Netherlands legalised euthanasia a month before Belgium did, in April 2002. The legislation formalised the criteria around assisted suicide that had been developed over a series of court cases dating back the “Postma Case” in 1973. The law requires that a patient’s suffering must be “hopeless and unbearable”. A patient between 12 and 16 can be helped to die with the consent of his or her parents. The Netherlands liberal laws in this area has drawn condemnation from conservatives around the world, with 2012 Republican presidential candidate Rick Santorum claiming (falsely) during his campaign that forced euthanasia accounted for 5% of deaths in the country. There was further controversy in May this year when it was revealed a woman in her 20s who had been the victim of sexual abuse was allowed to undergo euthanasia on account of her “incurable” PTSD.

Switzerland

The home of Dignitas has legally permitted assisted suicide since 1942, however the Swiss Criminal Code prohibits “inciting and assisting suicide” if it is for “selfish reasons”. Interestingly, physicians are given no special status under the law. Switzerland allows assisted suicide for non-residents, which has encouraged “suicide tourism“.

United States

The practice is prohibited throughout most of the United States, with exceptions being Washington, Oregon, Vermont a single county of New Mexico, and the practice is protected under common law rather than legislation in Montana. On Thursday last week, the End of Life Option Act came into effect in California. The act allows mentally competent patients over 18 with six months or less to live to request a prescription for lethal medication. The doctor does not administer the medication, meaning it’s technically not a euthanasia law — in fact, the act prohibits the practice from being referred to as euthanasia or assisted suicide.

Peter Fray

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