Do we have a right to assisted suicide?

In a timely article in the Eureka Street journal, Frank Brennan SJ, professor of law at Australian Catholic University, tackles the issue: Do we have a right to assisted suicide? 

Brennan summarizes well the current situation in courts and parliaments across the globe:

Physician assisted suicide and euthanasia are back in the courts of Canada and the United Kingdom, and back in the parliaments of the United Kingdom and Australia. Last month, the Supreme Court of Canada finished hearing a case in which the applicants claim that a 1993 Supreme Court decision upholding the criminal ban on euthanasia should be overruled. On Friday, the House of Lords will resume debate on Lord Falconer's Assisted Dying Bill.

The Legal and Constitutional Affairs Committee of the Australian Senate will table its findings early next week in the inquiry into Senator Richard Di Natale's Medical Services (Dying with Dignity) Exposure Draft Bill 2014.

Their Lordships will be looking forward to what they think is the appropriate law and policy on assisted suicide, while looking back at a recent decision of the UK Supreme Court which has said there is a need to consider the European Convention on Human Rights' requirement that everyone is entitled to respect for their private life. Next Monday, the Australian Senate will receive a committee report on the Greens' appallingly drafted Medical Services (Dying with Dignity) Exposure Draft Bill 2014.

Brennan then talks about the reality that the law is never perfect and goes on to give a very clear explanation of the real situation vis-à-vis the decriminalization of suicide:

Until 50 years ago, attempted suicide was a criminal offence. Seeing there were better ways to dissuade people from attempting suicide and acknowledging that no purpose was to be served by punishing someone who failed to kill themselves, parliaments abolished the offence of attempted suicide, while retaining the offence of assisting someone else with their own suicide.

Looking to the current case before the Canadian Courts, Brennan uses this case to argue that there is no right to suicide:

In 1993, the Canadian Supreme Court said there was a world of difference between turning off life support at the request of a rational, competent, non-depressed patient and administering a lethal injection to such a patient. The first was allowed; the second was not.

The Canadian Supreme Court has now been asked to rule that the distinction between withdrawing life support and administering a lethal injection is ethically contested and contrary to the Canadian Charter of Rights and Freedoms which guarantees everyone the right to life and the right 'not to be deprived thereof except in accordance with the principles of fundamental justice'. The Charter also guarantees equality before the law without discrimination based on mental or physical disability.

He then goes on to summarize the case for a 'right-to-die' in the Canadian case and puts an excellent argument why this is not the case:

Unless they have the right to assisted suicide, they are being deprived their full right to life contrary to the principles of fundamental justice, and in a discriminatory way. So a law which bans the provision of assistance with suicide is said to be unconstitutional.

The argument against this proposition is that the law banning such assistance can be 'demonstrably justified in a free and democratic society', being necessary to protect the vulnerable in society (whether abled or disabled) who may feel pressured into seeking such assistance or who may be tricked, cajoled or soothed into seeking such assistance in order to satisfy the needs and desires of others, including selfish relatives and overstretched medical personnel.

There is no right to commit suicide with a correlative duty that the state support the person wanting to commit suicide. There is only a liberty to commit suicide with an immunity from state interference. It is likely that the fairly 'liberal' Canadian Supreme Court will recognise a constitutional right to commit suicide and cut back the outright legal prohibition on providing assistance with suicide.

This summary is echoed in the Irish Supreme Court's rejection of Marie Fleming's application for an assisted suicide (Fleming vs Ireland):

"In particular the protection of the right to life cannot necessarily or logically entail a right, which the State must also respect and vindicate, to terminate that life or have it terminated. In the social order contemplated by the Constitution, and the values reflected in it, that would be the antithesis of the right rather than the logical consequence of it."

In London at this time, the House of Lords resumes debate on Lord Falconer's Assisted Dying Bill. The Lords are under some pressure following a UK Supreme Court judgement wherein the Lords Justice in rightly determining that the parliament is the place for debate on such matters also effectively warned that if the British Parliament failed to consider the matter fully, that they (the courts) might be compelled to act in some later judgement.

Brennan reserves his strongest criticism to the exposure draft bill being considered by the Australian Senate:

Meanwhile the Australian Senate is considering a much broader proposal than Lord Falconer's bill. The Greens have formulated the fuzzy notion of a medical practitioner providing 'dying with dignity medical services' including the administration of a lethal substance to a patient at their request. Their bill, unlike the UK bill, would allow Philip Nitschke to administer the fatal injection. Their bill includes the form to be filled in by the patient seeking dying with dignity medical services. The form is so shoddily drafted that it does not even specify a request for any particular services. It is simply a blank cheque given to the doctor stating: 'I am satisfied that there is no medical treatment reasonably available that is acceptable to me in my circumstances.'

The Bill provides: 'No civil, criminal or disciplinary action lies, and proceedings must not be brought, against a person in relation to an act done, or omitted to be done, if the act is done, or omitted to be done' in accordance with the proposed Commonwealth law. This is a constitutional nightmare and a federal mess-up of truly Green proportions. The criminal law in this area is a matter for the States. If you want certainty in the criminal law, which you do, you change the criminal law in question. You amend the State laws on assisted suicide. You do not have the Commonwealth coming in over the top to offer immunity from prosecution for an action which is still a criminal offence in the States.

More problematic is the doubt about the constitutional power of the Commonwealth even to make such a law. It would be like the Commonwealth legislating a new criminal law in relation to abortion. It is a State issue, not a Commonwealth issue. The only time the Commonwealth bought into euthanasia was when the Commonwealth Parliament overrode a law of the Northern Territory. There has never been any suggestion that it would or could override a law of the States. The Greens have not helped anyone with this half-baked exercise.

Brennan closes in quoting from a contribution by Lord Sumption in the recent UK Supreme Court case summary:

"There is no complete solution to the problem of protecting vulnerable people against an over-ready resort to suicide…The real question about all of these possibilities is how much risk to the vulnerable are we prepared to accept in this area in order to facilitate suicide for the invulnerable…There is an important element of social policy and moral value-judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a state's most fundamental collective moral and social values."

Frank Brennan SJ, professor of law at Australian Catholic University, is presently Gasson professor at the Boston College Law School.

You can read the full artice HERE.

Further reading:

A Right to Euthanasia?
Euthanasia Prevention Coalition challenges Quebec euthanasia law
Irish woman loses Supreme Court Appeal that challenged the ban on assisted suicide in Ireland