Health Law Assignment: Analysis of Voluntary Euthanasia in Australia

This health law assignment provides a comprehensive overview of the legal status of voluntary euthanasia in Australia. It begins with an abstract defining voluntary euthanasia and highlighting its current illegality at the federal level, while acknowledging state-level legislative attempts. The assignm...Read More

qwertyuiopasdfghjklzxcvbnmqwertyui
opasdfghjklzxcvbnmqwertyuiopasdfgh
jklzxcvbnmqwertyuiopasdfghjklzxcvb
nmqwertyuiopasdfghjklzxcvbnmqwer
tyuiopasdfghjklzxcvbnmqwertyuiopas
dfghjklzxcvbnmqwertyuiopasdfghjklzx
cvbnmqwertyuiopasdfghjklzxcvbnmq
wertyuiopasdfghjklzxcvbnmqwertyuio
pasdfghjklzxcvbnmqwertyuiopasdfghj
Health Law Assignment
Voluntary Euthanasia in Australia
04-May-18
(Student Details: )

Health Law Assignment
Voluntary Euthanasia in Australia
(Student Name without brackets)
Abstract
Voluntary euthanasia is a concept which is
still unlawful in Australia. There are
different nations which have legalized
voluntary euthanasia but Australia is yet to
bring out an effective and comprehensive
legislation which could allow for a person to
end their life voluntarily. In the Northern
Territory, a law was passed to legalize
voluntary euthanasia, but the same was later
on repealed through the commonwealth act.
There is a Victorian legislation which is set
to allow and legalize voluntary euthanasia in
Victoria from mid 2019. However, this
legislation has time to be implemented and
one cannot be sure if it will actually come in
application, owing to the history of
Australia. There have been numerous
attempts in the past to legalize voluntary
euthanasia in Australian states earlier also,
but none have beared any fruit. There are a
lot of supporting and dissenting views which
are given in context of voluntary euthanasia.
This article covers a detail on the numerous
attempts which have been made in different
states of Australia to legalize voluntary
euthanasia, the organizations supporting and
opposing this concept and the views which
oppose and support voluntary euthanasia.
Keywords: Voluntary euthanasia, Australia,
ending life, ethics, moral, euthanasia,
legislations
1. Introduction
Voluntary euthanasia denotes the practice
where a person ends their life in a painless
manner. There are different ways of ending
the life in a voluntary manner to be deemed
as voluntary euthanasia. These include
asking for help for ending the life, refusal to
eat, refusal of burdensome medical
treatment, and asking for the life support
machine to be turned off or for the medical
treatment to be stopped1. Where a person
does not wish to continue living their life,
they opt for voluntary euthanasia. It is also
referred to as assisted dying, where the
medical assistance is taken to end the life of
a person. The theme of voluntary euthanasia
is to put an end to the pain and the suffering
which an individual is going through. This is
particularly supported in cases where it is
clear that the person’s situation has no scope
of getting improved or better and the gravity
of situation makes it better to end the life of
such person2.
Voluntary euthanasia is a debated topic
where some people support it and others
oppose it. The supporters of voluntary
euthanasia cite the right of a person to live
in a dignified manner and the right of a
person to be free of pain and sufferings3.
The opponents of voluntary euthanasia cite
the chances of this concept being misused
based on personal greed, person living a
natural life, and ending life being deemed as
a measure to avoid the hardships of life4.
Even though the majority of nations across
the globe treat euthanasia as unlawful, the
nations like Switzerland, Canada, the
Netherlands, Luxemburg, Colombia and
Belgium treat voluntary euthanasia as legal5.
1 Justin Healey, Voluntary Euthanasia (Spinney
Press, 2008)
2 Margaret P. Battin, Rosamond Rhodes and Anita
Silvers, Physician Assisted Suicide: Expanding the
Debate (Routledge, 2015)
3 Rodney Syme, A Good Death: An Argument For
Voluntary Euthanasia (Melbourne Univ. Publishing,
2008)
4 Justin Healey, Voluntary Euthanasia Debate
(Spinney Press, 2013)
5 Sue Black, All That Remains: A Life in Death
(Random House, 2018)
Page 2

Health Law Assignment
This discussion focuses on the different
steps taken by Australia to legalize
voluntary euthanasia, including the different
bills and acts which had been proposed.
2. Voluntary euthanasia in Australia
In Australia, on the federal level, voluntary
euthanasia continues to be illegal, but there
have been certain legislations been passed
by states in this regard6. In Northern
Territory, voluntary euthanasia was made
legal for a certain period7. November 2017
saw a legislation being passed whereby the
assisted suicide was set to be allowed and
this was passed on the Parliament of
Victoria. However, this legislation will
come into effect in the latter half of 20198.
This would allow the patient to choose to
not get any treatment where the person is
suffering from terminal illness; further, the
person also has the right of choosing to turn
off the life support machines9.
2.1. Present situation
Even though at present assisting in
euthanasia is a crime, as was seen in Justins
v R10, there have been rare cases of
prosecution. There had been a case in 2002
where the friends and relatives of an elderly
woman were extensively investigated by the
police as the woman had committed suicide
after the friends and relatives had given her
moral support. This instance resulted in the
Commonwealth Government making
attempts to hinder euthanasia by Criminal
6 David Lanham, David Wood and Bronwyn Bartal,
Criminal Laws in Australia (Federation Press, 2006)
7 Graham A. Colditz, Encyclopedia of Cancer and
Society, Volume 1 (Sage, 2007)
8 Jean Edwards, Euthanasia: Victoria becomes the
first Australian state to legalise voluntary assisted
dying (29 November 2017)
<http://www.abc.net.au/news/2017-11-29/euthanasia-
passes-parliament-in-victoria/9205472>
9 Audry Berman, Shirlee J. Snyder and Barbara
Kozier, Kozier & Erb's Fundamentals of Nursing
Australian Edition (Pearson Higher Education AU,
3rd ed, 2014)
10 [2010] NSWCCA 242
Code Amendment (Suicide Related
Materials Offences) Bill of 200411 being
passed12.
In 2005, a nurse was convicted in Tasmania
State for assisting in her elderly father’s
death suffering from terminal cancer. This
was done as her father was trying to kill her
mother owing to the early stages of
dementia13. As a result of this incident, she
had been sentenced to 2.5 years of jail. Later
on though, the judges suspended her
conviction as in the view of the judge, the
community did not want the nurse to be put
behind the bars. This incident sparked a
debate on euthanasia being decriminalized14.
There are a lot of supporters of voluntary
euthanasia being decriminalized and
included in this is the Liberal Democratic
Party, the Reason Party, the Secular Party of
Australia, Australian Greens15, and the
Science Party16. Some TV ads were made by
Exit International where they argued for
voluntary euthanasia. These advertisements
were banned in September 2010 just before
they had been scheduled to be broadcasted17.
11 Criminal Code Amendment (Suicide Related
Materials Offences) Bill of 2004
12 OZMS, Euthanasia in Australia (2018)
<http://www.ozms.org/resources/euthanasia-and-
multiple-sclerosis>
13 Tim Jeanes, Legal case reopens euthanasia debate
(20 December 2005)
<http://www.abc.net.au/worldtoday/content/2005/s15
34960.htm>
14 ABC News, Assisted suicide case prompts calls for
euthanasia law review (20 December 2005)
<http://www.abc.net.au/news/2005-12-20/assisted-
suicide-case-prompts-calls-for-euthanasia/765010?
site=news>
15 Revolvy, Euthanasia in Australia (2018)
<https://www.revolvy.com/main/index.php?
s=Euthanasia+in+Australia>
16 Science Party, Freedom and Rights (2018)
<https://www.scienceparty.org.au/freedom_and_right
s_policy#euthanasia>
17 Cathy Alexander, Pro-euthanasia TV ad ban 'a
violation of free speech' (13 September 2010)
<https://www.theage.com.au/national/proeuthanasia-
tv-ad-ban-a-violation-of-free-speech-20100912-
1570f.html>
Page 3

Health Law Assignment
Shirley Justins and Caren Jennings were
held to be guilty of manslaughter and of
being an accessory to manslaughter
respectively in 2009. This was due to the
fact that they had provided Nembutal in
2006 to a former pilot, Graeme Wylie. As
per Justin, Waylie had the wish of dying
with dignity. It was argued from the
prosecution side that Wylie lacked the
mental capacity of making such critical
decisions of brining his life to an end, which
could result in this case being deemed as
involuntary euthanasia18. Australian Capital
Territory v JT19 clarified that an omission in
giving the life sustaining medical treatment
was deemed as legal in the nation, till such
time where the patient is shown to be
incapable mentally of giving consent.
In R v Mathews20, the Supreme Court of
NSW, in 2011, awarded two years of
suspended sentence to sixty six year old
person who had facilitated in the demise of
his 78 year old partner by assisting her in
getting a drug overdose and by suffocating
her. The lady who had been killed by the
man suffered from a spinal condition which
gave her severe pain. She had even
expressed that she wished to die in the
suicide note written by her before she had
died. This led to the man been convicted of
manslaughter. The substantial impairment of
the accused was taken into consideration by
the court at the point when this act had been
committed, along with the fact that he had
revealed his involvement in commissioning
of offence in a voluntary manner.
2.2. Northern Territory
Rights of the Terminally III Act, 199521
legalized euthanasia in NT in Australia,
18 Geesche Jacobsen, Conviction overturned but
retrial is pending (29 October 2010)
<https://www.smh.com.au/national/nsw/conviction-
overturned-but-retrial-is-pending-20101028-
175u7.html>
19 [2009] ACTSC 105
20 [2011] NSWSC 339
which had been passed by 15 to 10 votes. In
August 1996, just one year after the act was
formed a repeal bill was brought in the
Parliament of NT, which was defeated by 14
to 11 votes22. However, with the passing of
Euthanasia Laws Act, 199723, which was an
Australian Parliament statute, the Norfolk
Island Act, 197924, the Northern Territory
(Self-Government) Act, 197825, and the
Australian Capital Territory (Self-
Government) Act, 198826 were amended to
remove the power which was given to the
different territories of Australia where they
could legalize euthanasia.
The result of the Euthanasia Laws Act, 1997
was specific repealing of the Rights of the
Terminally III Act, 1995. The powers of the
Norfolk Island legislatures, the Northern
Territory and the Australian Capital
Territory are not similar to the ones given to
the State legislatures in terms of being
guaranteed by Australian Constitution. As a
result of this, these can be overruled or
amended by the Australian Commonwealth.
Though, before this amendment was made
by the Commonwealth government, three
people had ended their life through
physician assisted suicide based on the
applicable legislation and this had been
aided by Dr Philip Nitschke. The repealing
of act got interest of the Liberal Democrats
Senator David Leyonhjelm27.
2.3. South Australia
21 Rights of the Terminally III Act, 1995 (NT)
22 The World Federation of Right to Die Societies,
Euthanasia and Assisted Suicide in Australia (2018)
<https://www.worldrtd.net/euthanasia-and-assisted-
suicide-australia>
23 Euthanasia Laws Act, 1997 (Cth)
24 Norfolk Island Act, 1979 (Cth)
25 Northern Territory (Self-Government) Act, 1978
(Cth)
26 Australian Capital Territory (Self-Government)
Act, 1988 (Cth)
27 Lucy Hughes Jones, NT ACT euthanasia law ban
must go: senator (03 November 2017)
<https://thewest.com.au/news/social/nt-act-
euthanasia-law-ban-must-go-senator-ng-s-1793115>
Page 4

Health Law Assignment
The South Australian House of Assembly, in
2016 November, rejected the private
member’s bill narrowly which could have
legalized right of requesting for voluntary
euthanasia in such cases where a person had
to bear unbearable suffering and pain owing
to terminal illness. This was the first ever
euthanasia bill which passed its second
reading getting 27 to 19 votes. However,
this bill was later on rejected when the
clauses debate of this bill was going on, with
23 votes, and with that of the vote of speaker
being against this bill28.
2.4. Tasmania
In November 2013, Tasmania came very
close to the legalization of voluntary
euthanasia. This was made possible due to
the Greens initiative where the voluntary
euthanasia bill was marginally defeated by a
vote of 13 to 12 votes in the House of
Assembly. Had this bill been passed, it
would have permitted the terminally ill
individuals of Tasmania to end their lives
within ten days of three separate requests
being made to their doctor. Even though
both of the major parties did permit a
conscience vote in this case, all of the ten
Liberals had voted against this legislation,
where the Labor was split where seven
favoured this bill and three went against it,
and all the five Greens went in favour of this
bill29.
2.5. New South Wales
The National Party MLC, Trevor Khan, on
21st September 2017 had introduced the
28 ABC News, Voluntary euthanasia: South
Australian Parliament knocks back Death With
Dignity euthanasia bill (17 November 2016)
<http://www.abc.net.au/news/2016-11-16/voluntary-
euthanasia-debate-in-south-australia-goes-to-
committee/8031776>
29 Stephen Smiley, Voluntary euthanasia law
defeated by two votes (20 November 2013)
<http://www.abc.net.au/news/2013-10-17/voluntary-
euthanasia-law-defeated-by-one-vote/5029876>
Voluntary Assisted Dying Bill, 201730 in the
NSW Parliament. This bill was modelled on
the Oregon Death with Dignity Act, 199731.
This had also been developed where cross
party working group had taken into
consideration seventy two major
submissions32. A raft of safeguards also
formed a part of this bill which covered a 7
person oversight board for the purpose of
reviewing the assisted deaths33. This bill was
debated by the upper house across different
sittings in November 2017. On 16th
November, 2017, this bill was voted down
20-1934.
2.6. Victoria
The Victorian Parliament saw the
introduction of the Voluntary Assisted
Dying Bill, 201735 on September 20th 2017
by Andrews Labor Government. The
modelling of this bill was based on the
recommendations of the expert panel
chaired by Professor Brian Owler who was
the former president of the Australian
Medical Association36. This bill was finally
passed by the parliament where certain
amendments were made on 29th November
30 Voluntary Assisted Dying Bill, 2017 (NSW)
31 Oregon Death with Dignity Act, 1997
32 SBS News, Emotions high as assisted dying bill
lands (21 September 2017)
<https://www.sbs.com.au/news/emotions-high-as-
assisted-dying-bill-lands>
33 Sean Nicholls, Oversight safeguard added to
proposed assisted dying laws in NSW (18 September
2017)
<https://www.smh.com.au/national/nsw/oversight-
safeguard-added-to-proposed-assisted-dying-laws-in-
nsw-20170918-gyjtf0.html>
34 ABC News, Euthanasia debate: NSW Parliament
rejects bill on voluntary assisted dying (16 November
2017) <http://www.abc.net.au/news/2017-11-16/nsw-
parliament-votes-on-euthanasia-bill/9158384>
35 Voluntary Assisted Dying Bill, 2017 (Vic)
36 Jean Edwards, Victoria's assisted dying bill to hit
Parliament, to be voted on by end of year (19
September 2017) <http://www.abc.net.au/news/2017-
09-19/victoria-to-introduce-euthanasia-bill-on-
wednesday/8961572>
Page 5

Health Law Assignment
2017 in the Victorian Legislative Council.
Victoria became the very first state in
passing the bill where the voluntary assisted
dying was legislated. Presuming that this bill
receives its formal royal assent, the law is
set to come into effect in middle of 201937.
2.7. Organizations
The peak organization which nationally
represents and supports the slogan of dying
with dignity is the euthanasia advocacy
group known as YourLastRight.com. They
represent the different associations of
Tasmania, NSW, Queensland, and Victoria.
The other organizations working in this
regard include the Northern Territory
Voluntary Euthanasia Society (NTVES), the
South Australian Voluntary Euthanasia
Society (SAVES), and the Western
Australian Voluntary Euthanasia Society
(WAVES). Philip Nitschke founded Exit
International for supporting euthanasia.
There are other groups as well which
include Doctors for Voluntary Euthanasia
Choice and Christians Supporting Choice
for Voluntary Euthanasia. There are
organizations and institutions which oppose
the legislation of euthanasia and included in
these are the Australian Catholic Church and
HOPE38.
3. Supporting and opposing
euthanasia
There are a lot of substantial points which
the supporters and proponents of euthanasia
make, in presenting the case of euthanasia.
The supporters of euthanasia believe that a
person is to be given their basic right of
living the way they want to. So, where the
person feels that living would degrade their
life and they would not be able to live in a
dignified manner, they should be given the
freedom of ending their life. The other point
given in support of euthanasia is that not
only does the individual who bears all the
37 At 8
38 At 15
pain and sufferings suffers, but their family
members and closed ones also have to go
through the constant pain of seeing their
loved ones going through unbearable pain
and sufferings. For instance, a person
suffering from Secondary Progressive
Multiple Sclerosis needs to be allowed to
end their life, as living their life would only
bring them more suffering and pain39.
The opponents of euthanasia, on the other
hand claim that to give a person choice of
ending their life is against the sanctity of
life. A person is supposed to die naturally
and if for the fear of pain and sufferings, a
person is allowed to end their life, the value
of life would diminish, and ending life
would be seen as a synonym of taking the
easy way out. Stephen Hawking is
remarkable example of living despites the
hardships which life presents. There is a
need to inculcate such will towards life,
instead of treating as a source of pain and
sufferings40. There are a number of other
examples, who have fought the hardships of
life and decided to uphold the sanctity of
life. There is also the chance of voluntary
euthanasia being misused for various greed
purposes. Even with a person giving consent
to die, one cannot be sure of a real consent
being given on voluntary death. The issue of
consent and misuse of this concept has
resulted in a law not being passed in the
nation till date to support voluntary
euthanasia41.
4. Conclusion
Thus, on the basis of discussion in the
previous segments, it can be concluded that
voluntary euthanasia has fair share of
39 Neil M. Gorsuch, The Future of Assisted Suicide
and Euthanasia (Princeton University Press, 2009)
40 George D. Pozgar, Legal and Ethical Issues for
Health Professionals (Jones & Bartlett Learning, 3rd
ed, 2012)
41 Thomas Mappes, Jane Zembaty and David
DeGrazia, Social Ethics: Morality and Social Policy
(McGraw-Hill Education, 8th ed, 2011)
Page 6

Health Law Assignment
supporters and opponents, where each side
presents valid reasoning to support their
idea. Voluntary euthanasia allows a person
to end their life, particularly where such
person goes through sufferings and pain. To
live in a dignified manner is the right of
every person and as a result of this there is a
need for giving the individuals the right of
ending their life as a right too. However, the
opponents of voluntary euthanasia provide
that there are high chances of this concept
being misused. There is also the concept of
dignity and sanctity of life being discarded
when voluntary euthanasia is allowed. What
would happen if every person decides to end
their life on facing hardships is the key
theme behind denying voluntary euthanasia
being formed as a law.
Further, there are also chances of a treatment
being brought in the near or foresighted
future which would allow for the pain and
suffering of the person to be dismissed, if
not ended. But if the person is not alive to
get such treatment, as a result of choosing
voluntary euthanasia, they would never be
cured. Conversely, there are cases where
there are no chances or near sighted future
has no capacity of getting a treatment for
such person to be cured. Even in such cases,
to lose the will of living and to select the end
of life is a harsh decision, despite the
numerous points given in support of this.
This is possibly the reason for voluntary
euthanasia still not being legalized in
Australia. Even with a legislation expected
to come in force in middle of 2019, it is still
a year far, and till it is actually implemented
and continued, voluntary euthanasia would
continue to be a crime in the nation.
5. Bibliography
5.1. Articles/ Book/ Journals
Battin MP, Rhodes R, and Silvers A,
Physician Assisted Suicide: Expanding the
Debate (Routledge, 2015)
Berman A, Snyder SJ, and Kozier B, Kozier
& Erb's Fundamentals of Nursing
Australian Edition (Pearson Higher
Education AU, 3rd ed, 2014)
Black S, All That Remains: A Life in Death
(Random House, 2018)
Colditz GA, Encyclopedia of Cancer and
Society, Volume 1 (Sage, 2007)
Gorsuch NM, The Future of Assisted Suicide
and Euthanasia (Princeton University Press,
2009)
Healey J, Voluntary Euthanasia (Spinney
Press, 2008)
Healey J, Voluntary Euthanasia Debate
(Spinney Press, 2013)
Lanham D, David Wood and Bronwyn
Bartal, Criminal Laws in Australia
(Federation Press, 2006)
Mappes T, Zembaty J, and DeGrazia D,
Social Ethics: Morality and Social Policy
(McGraw-Hill Education, 8th ed, 2011)
Pozgar GD, Legal and Ethical Issues for
Health Professionals (Jones & Bartlett
Learning, 3rd ed, 2012)
Syme R, A Good Death: An Argument For
Voluntary Euthanasia (Melbourne Univ.
Publishing, 2008)
5.2. Cases
Australian Capital Territory v JT [2009]
ACTSC 105
Justins v R [2010] NSWCCA 242
R v Mathews [2011] NSWSC 339
5.3. Legislations
Australian Capital Territory (Self-
Government) Act, 1988 (Cth)
Criminal Code Amendment (Suicide Related
Materials Offences) Bill of 2004
Euthanasia Laws Act, 1997 (Cth)
Norfolk Island Act, 1979 (Cth)
Page 7

Health Law Assignment
Northern Territory (Self-Government) Act,
1978 (Cth)
Oregon Death with Dignity Act, 1997
Rights of the Terminally III Act, 1995 (NT)
Voluntary Assisted Dying Bill, 2017 (NSW)
Voluntary Assisted Dying Bill, 2017 (Vic)
5.4. Others
ABC News, Assisted suicide case prompts
calls for euthanasia law review (20
December 2005)
<http://www.abc.net.au/news/2005-12-20/as
sisted-suicide-case-prompts-calls-for-
euthanasia/765010?site=news>
ABC News, Euthanasia debate: NSW
Parliament rejects bill on voluntary assisted
dying (16 November 2017)
<http://www.abc.net.au/news/2017-11-16/ns
w-parliament-votes-on-euthanasia-bill/
9158384>
ABC News, Voluntary euthanasia: South
Australian Parliament knocks back Death
with Dignity euthanasia bill (17 November
2016) <http://www.abc.net.au/news/2016-
11-16/voluntary-euthanasia-debate-in-south-
australia-goes-to-committee/8031776>
Alexander C, Pro-euthanasia TV ad ban 'a
violation of free speech' (13 September
2010)
<https://www.theage.com.au/national/proeut
hanasia-tv-ad-ban-a-violation-of-free-
speech-20100912-1570f.html>
Edwards J, Euthanasia: Victoria becomes
the first Australian state to legalise
voluntary assisted dying (29 November
2017) <http://www.abc.net.au/news/2017-
11-29/euthanasia-passes-parliament-in-
victoria/9205472>
Edwards J, Victoria's assisted dying bill to
hit Parliament, to be voted on by end of year
(19 September 2017)
<http://www.abc.net.au/news/2017-09-19/vi
ctoria-to-introduce-euthanasia-bill-on-
wednesday/8961572>
Jacobsen G, Conviction overturned but
retrial is pending (29 October 2010)
<https://www.smh.com.au/national/nsw/con
viction-overturned-but-retrial-is-pending-
20101028-175u7.html>
Jeanes T, Legal case reopens euthanasia
debate (20 December 2005)
<http://www.abc.net.au/worldtoday/content/
2005/s1534960.htm>
Jones LH, NT ACT euthanasia law ban must
go: senator (03 November 2017)
<https://thewest.com.au/news/social/nt-act-
euthanasia-law-ban-must-go-senator-ng-s-
1793115>
Nicholls S, Oversight safeguard added to
proposed assisted dying laws in NSW (18
September 2017)
<https://www.smh.com.au/national/nsw/ove
rsight-safeguard-added-to-proposed-
assisted-dying-laws-in-nsw-20170918-
gyjtf0.html>
OZMS, Euthanasia in Australia (2018)
<http://www.ozms.org/resources/euthanasia-
and-multiple-sclerosis>
Revolvy, Euthanasia in Australia (2018)
<https://www.revolvy.com/main/index.php?
s=Euthanasia+in+Australia>
SBS News, Emotions high as assisted dying
bill lands (21 September 2017)
<https://www.sbs.com.au/news/emotions-
high-as-assisted-dying-bill-lands>
Science Party, Freedom and Rights (2018)
<https://www.scienceparty.org.au/freedom_
and_rights_policy#euthanasia>
Smiley S, Voluntary euthanasia law
defeated by two votes (20 November 2013)
<http://www.abc.net.au/news/2013-10-17/vo
luntary-euthanasia-law-defeated-by-one-
vote/5029876>
Page 8

Health Law Assignment
The World Federation of Right to Die
Societies, Euthanasia and Assisted Suicide
in Australia (2018)
<https://www.worldrtd.net/euthanasia-and-
assisted-suicide-australia>
Page 9