Frank Brennan (first published in Eureka Street and republished here with permission)
On 9 June 2016, California will complete the west coast coverage of laws in the USA permitting physician assisted suicide for any mentally competent adult who is suffering 'an incurable and irreversible disease that has been medically confirmed' and which will 'within reasonable medical judgment, result in death within six months'.
A new Canadian law will also come into effect on 6 June allowing any mentally competent adult who is suffering 'any grievous and irremediable medical condition' to seek assistance from a doctor with the preparation of a noxious potion. Under the Canadian law, the patient must have 'a serious and incurable illness, disease or disability', and be 'in an advanced state of irreversible decline in capability'.
The patient must be 'enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable'. Their natural death must be 'reasonably foreseeable, taking into account all of their medical circumstances'.
In both California and Canada, the plan is to permit doctors to help patients who can help themselves. The doctor prepares the potion, but the patient must administer it. Inevitably, in years to come, there will be debate whether these laws 'discriminate' against patients who cannot help themselves.
Euthanasia advocates will argue the doctor should be able to administer a lethal injection if requested by the patient, whether or not the patient is able to commit suicide with assistance. Pointing to the experience in Belgium and the Netherlands, they will also debate whether these laws 'discriminate' against persons who, though not dying, are still enduring unbearable and untreatable suffering.
They will invoke the language of autonomy, non-discrimination, and human rights, arguing that any mentally competent person has the right to end their life and the right to obtain assistance from a doctor ending their life in as painless and dignified a way as possible.
Countries like Canada, the US, the UK and Australia have been wrestling with this issue ever since the law was rightly changed to decriminalise attempted suicide. Previously it was a criminal offence to attempt suicide and it had always been an offence to assist someone to commit suicide. Needless to say, it was also an offence to kill someone.
"Prosecutors would rarely prosecute the compassionate spouse or the caring doctor; juries would hardly ever convict; and judges would not send the offender to jail."
The argument was that the state had an interest in trying to dissuade people from committing suicide because of its immediate impact on other people and because the preservation of life was a public good. With better understanding through psychology, lawmakers appreciated that criminalising attempted suicide often resulted in those most at risk not seeking help. They also conceded greater autonomy to the individual who should be able to attempt to end their life without any state sanction.
Once attempted suicide was decriminalised, some started to describe the 'right' to end one's life as a 'human right'. Should it still be a criminal offence to assist a mentally competent person to commit suicide especially if that person was terminally ill and suffering unbearable, untreatable pain?
While there are instances of people assisting another's suicide for callous, self-interested and uncompassionate reasons, there are also instances of spouses and other loved ones helping a dying patient to die more quickly, and with no element of selfish self-interest and with an abundance of compassion. There have also been instances of doctors blurring the lines and administering drugs not for the purpose of alleviating pain but for the specific purpose of ending life. Prosecutors would rarely prosecute the compassionate spouse or the caring doctor; juries would hardly ever convict; and judges would not send the offender to jail.
With people living much longer, and with society giving greater weight to personal autonomy, the issue is whether to leave 'assisting suicide' as a criminal offence which would be rarely, if ever prosecuted, or to decriminalise 'assisting suicide' at least in the case where the deceased was a terminally ill, mentally competent person. Euthanasia advocates push the envelope further by arguing that assistance with one's suicide is a also human right, and that there is no real difference between assisting a person to commit suicide and killing them at their request.
Even if there be a case for decriminalising 'assisting suicide', it does not follow that the same case can be made for decriminalising the killing of another even at their request. In the past the US Supreme Court and the UK Supreme Court have conceded that there is a legitimate state interest in maintaining a legal prohibition on killing even if there be a legislated exception to the criminal offence of assisting another to commit suicide.
"It will be a matter of balancing individual autonomy against the state interest in minimising the prevalence of suicide throughout society, protecting the weak and vulnerable, maintaining the integrity of the medical and legal professions, and maintaining the coherence of the criminal law."
In the 2015 Carter Case, the Canadian Supreme Court threw caution to the wind and discovered a constitutional right to physician assisted death. In response to the Canadian court decision, the Canadian Parliament is running against the clock to prepare a new law by 6 June, the date imposed by the court for any new legislative restriction on the right to an assisted death. The Canadian Parliament is proposing a law which seeks to maintain some of the original state rationale for criminalising assisting another to commit suicide and criminalising the killing of another even at their considered, self-determining request. In its preamble, the new Canadian law rightly states:
Whereas it is important to affirm the inherent and equal value of every person's life and to avoid encouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled; Whereas vulnerable persons must be protected from being induced, in moments of weakness, to end their lives; Whereas suicide is a significant public health issue that can have lasting and harmful effects on individuals, families and communities.
The Canadian law then sets out the safeguards for a medical practitioner to assist a patient with their own suicide. The Canadian Medical Association, after significant consultation with its membership, has told Parliament 'that physicians who are comfortable providing referrals (for medically assisted death) strongly believe it is necessary to ensure the system protects the conscience rights of physicians who are not'. Freedom of conscience matters. Voluntary assistance with deliberately accelerating death should be voluntary for everyone!
Here in Australia, the issue will not be decided by the Commonwealth Parliament nor by the High Court. It will be a matter for state and territory parliaments. It will not be a matter of contesting religious and secular viewpoints. It will be a matter of balancing individual autonomy against the state interest in minimising the prevalence of suicide throughout society, protecting the weak and vulnerable, maintaining the integrity of the medical and legal professions, and maintaining the coherence of the criminal law.
Without any legal change, those who compassionately and unselfishly assist with the suicide of dying, suffering loved ones will endure some uncertainty whether they might be prosecuted; and those doctors tempted to take the law into their own hands will practise their medicine without adequate transparent safeguards. But then again, once the state legislates to permit assistance with the suicide of a dying, suffering, mentally competent person, the door could well be opened to those who agitate a right to kill and not just a liberty to assist with suicide, and that door could be pushed open onto a class of patients which ultimately will include those who are not dying at all.
I'm for keeping that door firmly shut. That door is now wide open in Belgium and the Netherlands. The Canadian Parliament is trying to place some appropriate limits on the door thrown open by their Supreme Court. The US west coast approach of opening just a window has been more prudent, but even there it could still blow a gale.
See also: Do we have a right to assisted suicide?
Frank Brennan SJ is professor of law at Australian Catholic University and adjunct professor at the Australian Centre for Christianity and Culture.