SUBMISSION TO THE NSW GOVERNMENT

FOR
VOLUNTARY ASSISTING DYING: EUTHANASIA

The focus of the submission is to consider whether assisted suicide can be seen as a relief for
the incurables or a heinous offence of manslaughter for the purpose of law in New South
Wales. Please find my submissions below.

Historical Background

The term Euthanasia is a combination of two Greek words ‘eu’ which means good and
‘thanatos’ which means death, an put together euthanasia is a practice of ending someone’s life
intentionally to relieve them from pain and misery.1 The word "euthanasia" was referred to an
easy, painless, happy death by Francis Bacon, for the first time medically.

The first attempt was made in the United States by Henry Hunt to legalize Euthanasia. In 1906,
he had introduced a legislation in the General Assemble of Ohio, but the bill was unable to
pass. In 1949, the New York Legislature was presented with a petition by the Euthanasia
Society of America which was later criticized by the Roman Catholics stating that the bill
would “ Legalize a suicide-murder pact” and even the “rationalization of the fifth
commandment of God, 'Thou Shalt Not Kill.”2

In Australia also the practice of euthanasia had been a subject of discussion. It has many a
times been discussed and considered in Tasmania, South Australia and New South Wales,
however failed to pass legislation. In 1996, euthanasia was allowed in the Northern territory of
Australia for the first time with the help of Rights of the Terminally Ill Act 3which was passed
in 1995 by the state government.2 The Rights of the Terminally Ill Act 1995 was later
condemned and superseded by the Federal government of Australia and the provisions of
euthanasia were nullified.

Current Laws in Australia

The Australian government has made sincere efforts to make laws and legislations regarding
assisted suicide. However, these efforts could succeed only in the Victorian territory. Victoria,
in 2019 has joined other nations like the Netherlands, Canada, Belgium, Colombia and
Luxembourg in legalizing euthanasia. The Voluntary Assisted Dying Act 2017 (Vic) (‘VAD’)
which came into force into effect in 2019, legalized euthanasia in Victoria. The most crucial
part of the Act is the underlining of the patient’s eligibility to access voluntary assisted dying

1
‘Euthanasia or Mercy Killing- Moral Dilemma!’ Byju’s (Web Page) https://byjus.com/free-ias-
prep/euthanasia-or-mercy-killing/.
2
‘Ministers Ask Mercy Killing.’ The Moncton Transcript, 6 January 1949.
3
Rights of the Terminally Ill Act 1995 (NT).
under section 9 of the VAD.4 The section 6 of the act also mentions the regulations and criteria
of, when a person can ask for euthanasia and how will it be administered.5

Considering the need to alter and include the essence of euthanasia, the government of NSW
took firm step and proposed a Voluntary Assisted Dying Bill 2017 in the parliament. 6 A
Voluntary Assisted Dying Board was constituted to investigate and make substantial
submissions to the bill. Nationals MP Trevor Khan, the driving force behind the push to help
the incurables take their lives voluntarily, during his speech said, "Too many of us have
watched or cared for a loved one with a debilitating illness and seen them die a horrible and
undignified death." The proposed bill suggested that the person who is incurable and want to
end his or her live would have to be at least 25 years of age and a citizen or permanent resident
of Australia while being an ordinary citizen of NSW. The patient is also expected to die within
12 months in reasonable medical judgment. The bill also gave some decent suggestions to
accord the decision of the patient and the doctors on the medical condition of the patient.7

It safeguarded that the decision of incurable illness must be consented by two medical
practitioners that includes a specialist; the patient’s decision of euthanasia must be cross
checked by a psychiatrist to guarantee that the decision is made with a sound mind and free
will. The patient would also be provided with 48 hours cooling off period in which he or she
can rethink about the decision to foster euthanasia and these 48 hours also provided an
opportunity to the close relatives of the patient to challenge patient’s eligibility in the Supreme
Court.

The bill was later rejected after several sittings in the upper house of the parliament by a vote
down of 20 to 19 and many members of the New South Wales parliament were disappointed
by the decision.

Case Laws in NSW

Even though there is no legislation in New South Wales regarding euthanasia, lots of cases
have been decided by the courts on the basis of precedents. One such recent case was of Justins
v Regina (2010) in which the appellant and the de facto partner of the deceased provided Mr.
Graeme Wylie, with a glass of wine and a bottle of drug. Being diagnosed with Alzheimer's
disease in 2003, Mr. Graeme had tried to attempt suicide twice and had applied for assisted
suicide but was rejected. Reaching out the bottle of drug, Mr. Graeme Wylie drank it knowing
that he would die. The court of appeal held in favor of the appellant and quashed the conviction
of manslaughter and ordered a new trial.8

4
Voluntary Assisted Dying Act 2017 (Vic) s 9.
5
Ibid s 6.
6
Voluntary Assisted Dying Bill 2017 (NSW).
7
Lexi Metherell, ‘Victoria first jurisdiction to allow euthanasia in over two decades’, ABC (Web Page, 17 June
2019) https://www.abc.net.au/radio/programs/am/victoria-first-jurisdiction-to-allow-euthanasia-in-two-
decades/11215256.
8
Justins v Regina [2010] NSWCCA 242.
In 2011, the Supreme Court of New South Wales gave a two-year suspended conviction of
manslaughter to a 66-year-old man. His long-term 78-year-old partner had been suffering from
severe pain arising from a spinal condition. He had expressed his wish to die in a suicide note
and his partner helped her by overdosing on drugs and suffocating her. 9

Aim of Criminal Justice: Philosophical Ideas

The main purpose of the Criminal Justice System is to protect citizens and their property and
to punish those proved guilty. Five objectives are widely accepted for enforcement of the
criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and
restoration. However, with the change of time, there is thrust on reformative purposes to
change the person that made the wrong possible and to announce that offending is wrong.

The definitions of murder and/or manslaughter under the criminal laws of the Australian
states include the act of killing a person.10 Persons who have committed euthanasia are often
prosecuted for the offence of voluntary manslaughter or murder even if the victim consents
to be killed.11 The Secular Party of Australia, the Reason Party, Science Party, Australian
Greens, and the Liberal Democratic Party all have supported euthanasia. In 2019, as per Vote
Compass data support for voluntary euthanasia has jumped 15 percentage points in the past
six years, to almost 90 per cent.

Aim of Criminal Justice: Reforms

After passage of VAD in Victoria and growing acceptance for voluntary euthanasia amongst
the people there is need to bring reform in law for decriminalization of euthanasia. Despite
the fact that there was opposition to the law, there are three important factors that have led
to the significant reform in Australia12:

I) International trends to authorize VAD;

In Australia, there are numerous organizations such as YourLastRight.com, "Dying with

9
‘Euthanasia in Australia’, Howling Pixel (Web Page) https://howlingpixel.com/i-en/Euthanasia_in_Australia.
10
Crimes Act 1900 (NSW) s 18.
11
‘Euthanasia and Assisted Dying’, End of Life Law in Australia (Web Page) https://end-of-
life.qut.edu.au/euthanasia.
12
Willmott el al, ‘Queensland University of Technology’ (PDF) https://eprints.qut.edu.au/128755/1/
Submission%20to%20Qld%20Parl%20Cttee%20April%202019%20%28including%20publications%29.pdf.
13
‘Euthanasia in Australia’, Howling Pixel (Web Page) https://howlingpixel.com/i-en/Euthanasia_in_Australia.
The arguments in favor of legalizing euthanasia are:

a) A person should be allowed to choose their own fate and avail their right of self-
determination.
b) Assisting a person to die might be a better alternative, than requiring that they continue
to suffer;
c) Every individual should be able to die with dignity.
d) It can help to shorten the grief and suffering of loved ones.
e) Permitting euthanasia will not achieve the results that are acceptable.

Pro-euthanasia activists often point to countries like Netherlands and Belgium where
euthanasia has been legalized, to argue that it is mostly unproblematic. Four major arguments
by opponents of euthanasia are:

a) All deaths are not painful;

Effects on Stakeholders

Physicians, patients, pharmaceutical companies, and insurance companies are major stake
holders in cases of euthanasia. The pharmaceutical companies are likely to engage in
manufacturing of drugs and pills for assisting in peaceful dying. People with mentally illness
and suicidal thoughts will get easier access and might even harm themselves. Euthanasia will
ease the unbearable pains and agonies of patients, however, patients who do not really want to
end their lives might feel they are a burden and so feel a subtle pressure, real or imagined, to
end their lives when this is not what they want.

Other stakeholders are the physicians having to make this choice. They have to prescribe the
drugs necessary for patients to commit Physician Assisted dying. This goes against the
Hippocrates Oath they have taken and is a moral dilemma they have to live with even after
their patient has passed. Some of them may also enter in unethical practices by giving
prescription for voluntary assisted dying even to those who do not require.

Relatives of patients are also stake holders who can influence the decision of the patient
whether to go for euthanasia. The last major stakeholder is the insurance companies. Insurance
companies will be the major beneficiaries as they will get enhanced premium but will have to
pay nothing as voluntary assisted dying is excluded from coverage.
Challenges in Reforming Laws

Once it is legalized to allow voluntary assisted dying then there would be pressure to increase
the range of circumstances by amending legislation. It is easier to amend existing legislation
than enact it in the first place. Decisions to withdraw life-sustaining measures or give pain
relief which may hasten death are susceptible to abuse.

The main challenge to euthanasia has been to who should have access to euthanasia should
it be restricted only to the terminally ill or should it extend to people who have unbearable
physical condition which does not make them terminally ill? Or should it even extend to
people who aren’t physically ill at all, but are experiencing unbearable mental suffering?

Roman Catholic Church regards euthanasia as a grave violation of the law of God as it is a
deliberate and morally unacceptable killing of a human person.14 It is also easier and cheaper
to kill a patient than to provide palliative care. If this would be the case, then good palliative
care would become a secondary concern and families would less likely to opt this option for
patients. It will lead to degradation of social thinking of the society. Once the right to life is
rejected by the society and the killing form of treatment is adopted, then why bother to pay
for palliative care, when euthanasia is so cheap?15

Recommendations

Currently, voluntary assisted dying is illegal in NSW. Though courts of NSW in some cases
of assisted dying has not held an accused guilty of manslaughter or murder. But such
precedents are not sufficed to take place of law. It is imperative that actions of assisted dying
should be legalized.

Two approaches could be followed for bringing changes in law. First, where NSW can adopt
its own model considering comparative assessments of strengths and weaknesses of the
existing law of Victoria. Second model could be to 'follow the leader' approach and adopt the
Victorian law.

Both models have their advantages and disadvantages. While in first model there is
opportunity to improve the existing law and remove defects that may be noticed in its

14
‘Victoria Considers Legalising Euthanasia’, Vision (Web Page) https://vision.org.au/radio/2017/08/01/victoria-
considers-legalising-euthanasia/.
15
‘Euthanasia policy issues’, Parliament of Australia (Web Page)
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Comple
ted_inquiries/2008-10/terminally_ill/report/c04.
implementation. This would be a better political approach to enhance the “most
conservative model in the world”.16

Concerns of vulnerability and "slippery slope" need to be taken care of in the new legislation.
Patients who do not really want to end their lives might feel they are a burden and so feel a
subtle pressure, real or imagined, to end their lives when this is not what they want. Once law
of VAD is passed in narrowly defined circumstances, there will be pressure to increase the
range of circumstances with amending legislation. And it’s easier to amend existing legislation
than enact it in the first place (the slippery slope concern). The concern relating to access to
euthanasia also needs to be taken care of. Its misuse by the patients or by other stakeholders
must be safeguarded. The draft legislation must ensure that law is explicit restricting its access.

The laws and policy models in Canada are frequently used for comparison by law reform
bodies when considering future directions for reform in Australia.17 The good points from
Canadian law can be followed. Decision about changes from the Victorian model and
whether all changes need to be adopted or not, will certainly depend on how the law operates
in practice. This is currently an unknown. Disadvantage of this model is that new bill may
find resistance from opponents of VAD laws.

On the other hand, there may be political advantages for taking the second approach. The
Victorian VAD law aids a person to die, which is very conservative. It allows doctors to
administer medication only in limited circumstance and contains large number of detailed
safeguards and processes. This was a deliberate strategy to secure the required support for the
bill to pass through the Victorian Parliament by proposing a conservative model. It may be
politically attractive for NSW seeking to pass VAD laws that has been endorsed by fellow state.
There may be less opposition in proposing such a bill. Big disadvantage in following this model
is that there is no scope for improvement in the Victorian law.

16
‘Euthanasia policy issues’, Parliament of Australia (Web Page) https://www.aph.gov.au/Parliamentary
_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2008-
10/terminally_ill/report/c04.
17
Willmott el al (n 12).