The Court found that, in this case, that description was lacking.
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They also found legitimate state interests in protecting medical ethics and protecting disabled and terminally ill people from facing pressure to end their lives. But the Supreme Court, in the case of Gonzales v. Oregon , determined that the Act does not allow the U. Attorney General to declare the medical practice illegitimate, as the practice was allowed under state law and had doctors prescribing regulated drugs.
Constitution Check: Is the spirit of faction making governing much more difficult? Toggle navigation. But is the right to die protected by the Constitution? Joshua Waimberg is a legal fellow at the National Constitution Center. Sign up for our email newsletter. While the regulatory approach varies between Australian states and territories, all states and territories permit people, in one form or another, to formally communicate their wishes in end of life situations, an approach reflected by international practice.
Passive voluntary euthanasia thus appears to be largely accepted within current medical practice and, in most jurisdictions, generally recognised and permitted by law , despite the refusal of medical practitioners and policy makers to describe these activities in such terms. Thus, unlike passive euthanasia, in which the cause of death is the underlying disease or condition, with active voluntary euthanasia the death results from the action of a medical professional or other party.
As will be explored in section 4. Some of the major arguments for and against the legalisation of active voluntary euthanasia as raised at the Senate Inquiry are summarised below, followed by an overview of the current legal situation, in section 3. When the medical profession becomes involved in killing, the delicate trust relationship between a patient and doctor is undermined. People trust their lives to doctors and health care workers in the knowledge that they are dedicated to the preservation of life, to healing, to caring. This after all is the basis of the Hippocratic tradition.
The Hippocratic Oath includes the commitment not to kill a patient, even if the patient requests such a course. This is a contested view. Linked to this argument is the role of palliative care. A number of people submitted to the Senate Inquiry that the introduction of voluntary euthanasia would undermine investment in, as well as the role and value placed on, palliative care. In his evidence to the Senate Inquiry, Assistant Professor Andrew Cole, a palliative care specialist, outlined that providing effective palliative care and support could be an alternative to euthanasia.
He explained:. Rather, it is providing care and support, letting the natural processes take their course and choosing to withdraw therapies that are not reasonable or not helpful. Others argued that the introduction of active voluntary euthanasia would not undermine palliative care but would instead provide an additional option within the palliative care process. Specifically, the concern is that the legalisation of voluntary euthanasia in terminal cases would then lead to the practice of other forms of euthanasia such as involuntary euthanasia or voluntary euthanasia in non-terminal cases.
That is not voluntary euthanasia. However, many submissions countered this view. For example, Professor Margaret Otlowski argued that:. The most commonly cited objection to the legalisation of active voluntary euthanasia is the 'slippery slope' argument: that the legalisation of active voluntary euthanasia would lead to widespread involuntary euthanasia and the termination of lives no longer considered socially useful. This is, however, a completely unsubstantiated argument. The 'slippery slope' argument is typically made without regard to the risks of abuse or other problems involved in retaining the present law.
From my understanding, in Oregon they have had this legislation for 17 years and they have done studies which have shown that this slippery slope you are referring to does not exist. It is a scaremongering tool used by those who are ideologically opposed to the proposed legislation and who will do anything they can to stop the law. We in Christians Supporting Choice side with loving compassion and mercy and not with religious dogmatic adherence to a particular point of view There is no slippery slope.
Further, there were criticisms that the slippery slope argument, in being focused on the potential for active voluntary euthanasia to lead to other, more controversial forms of euthanasia, did not provide a strong argument against the practice of active voluntary euthanasia itself. Mr Peter Short, a man with terminal cancer who appeared before the Committee, argued:. Is it rational to take a position of denying the terminally ill and suffering the choice at the end of their life, because we are concerned we cannot put effective rules around a dying process?
We manage road rules, alcohol rules and smoking rules. All are slippery slopes far more difficult and destructive, but all well-accepted in society and in law. Matters involving the most intimate and personal choices a person may make in a life-time are central to the liberty protected by the Fourteenth Amendment. A number of these moral and ethical concerns are summarised in an excerpt of an article published by Father Frank Brennan:. Many Australians still believe that physician assisted suicide is wrong.
While prepared to see a machine turned off, they are opposed to the administration of a lethal injection. They would never seek it for themselves.
As health professionals they would never provide such assistance. But should there be a law against the administration of the injection given that many other Australians believe individuals should have a right to choose? This section will consider the current state of the law within Australia in respect of the regulation of active voluntary euthanasia.
As the regulation varies depending on the practice in question, three different types of active voluntary euthanasia practice will be considered:. Where the patient wants to die and asks the doctor for assistance prescribing drugs, setting up a mechanism, providing advice but the lethal act is performed by the patient rather than the doctor;.
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Further research would need to be undertaken to confirm whether this has been determined. For this reason the regulation of this practice is considered within the active voluntary euthanasia section with this caveat. As of the mid-nineties, there had been no criminal prosecutions of doctors in Australia in relation to their administration of pain relieving drugs that have hastened death.
The relevant legislative provisions are detailed below. Legislation in South Australia, Western Australia and Queensland provides some clarification regarding whether and in what circumstances a doctor providing pain relief which hastens death will be criminally liable. The common law position appears to be unaffected by legislation in Victoria, Tasmania, New South Wales and the ACT in the case of the latter, however, within the context of a statutory right to pain relief.
The situation in the Northern Territory is less clear. Guardianship and Administration Act WA :. In Western Australia the Act provides that if a health care professional commences or continues palliative care in accordance with an advance health directive or a decision by an enduring guardian, the health professional is taken to have done so in accordance with a valid treatment decision, even if an effect of doing so is to hasten the death of the patient. Medical Treatment Act Vic :.
However s 17 of the ACT Act gives statutory recognition to the right of the patient to pain relief. Criminal Code Act Tas :. A person is deemed to have killed another in the following cases where his act or omission is not the immediate, or not the sole, cause of death There does not appear to be any statutory exception to this provision for medical professionals providing pain relief. There is no provision in the Crimes Act NSW dealing with the administering of pain relief which hastens death.
The NT Criminal Code does not appear to make any exceptions or provide any defences in relation to the provision of pain relief which hastens death. However the use of various mechanisms within the criminal justice system to mitigate outcomes in these two situations makes the issue less clear. Although the law in Australia no longer criminalises suicide or attempted suicide, assisting suicide is a crime in all Australian states and territories:. Note that when the Northern Territory first enacted active voluntary euthanasia legislation in described in detail in the next section physician-assisted suicide was legal in some circumstances.
While the criminal law comprehensively and largely consistently regulates this issue, the use of mitigation mechanisms reveal different policy considerations being employed in this context.
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As of , no doctor had been prosecuted for murder in Australia for performing active voluntary euthanasia. These include the exercise of prosecutorial discretion, acquittals either by the judge or the jury or findings of guilt on a lesser charge, lenient sentencing by the courts, favourable parole determinations, and the exercise of executive leniency. As with the second scenario above, criminal law comprehensively regulates this practice, yet available mechanisms have been used to temper the application of these laws and to mitigate outcomes.
Against the backdrop of the criminal justice system grappling to find a satisfactory response to these situations, legislation has been proposed in Australia to clarify the regulation of, and make consistent, active voluntary euthanasia practices. These legislative schemes are summarised below. A number of states and territories have made attempts to legalise active voluntary euthanasia.
To date only the Northern Territory has been successful in enacting legislation the Act having been subsequently constitutionally overridden by the Commonwealth. The key features of the Northern Territory Act are summarised below.
Due Process of Law
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. The Rights of the Terminally Ill Act 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.
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. The Commonwealth Parliament has the power under section of the Australian Constitution to enact its own legislation to override the NT Act. 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.
Key provisions set out the ability to make a request and the pre-conditions to be met in accessing dying with dignity medical services. 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.
Four constitutional heads of power have been referred to in the Draft Bill and will be considered in turn. Contrasting views were submitted to the Senate Inquiry on whether euthanasia would be covered under this head of power. 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.
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.