We need to talk about not talking about voluntary assisted dying

La Trobe Law School Senior Lecturer Steven Tudor

By Steven Tudor

This year or next, Victoria is likely to get a law that will allow a person, at their request, to be helped to kill themselves, provided they have only a few weeks or months to live and have a serious, incurable illness which is causing them unbearable suffering that cannot be relieved in a way tolerable to that person. Should that law also make it a crime to encourage someone to request such assistance to die?

Legislation is coming

The Victorian Government has committed to introducing a bill into Parliament this year that will legalise ‘voluntary assisted dying’. This follows on from a Victorian parliamentary committee’s June 2016 report on its Inquiry into End of Life Choices. Most people (myself among them) think that an adult who is of sound mind, suffering from a terminal, incurable illness, is in intolerable and unrelievable pain, and is near death, should be able to be assisted by a physician to die as comfortably and peacefully as possible, when they choose. So the Victorian Government is not exactly swimming against the tide of public opinion here, though it will be only the second jurisdiction in Australia to legalise assisted suicide. The first was the Northern Territory, which passed legislation in 1995 to permit physician-assisted suicide (though this was overridden by federal parliament in 1997).

The Victorian parliamentary committee sketched its model for the legislation in relatively broad strokes. A government-appointed expert advisory panel is currently working on the details. On 25 January 2017, the panel released a discussion paper, which makes clear that the bill’s details are not yet settled, especially on issues such as which patients will be eligible for assisted dying, how physicians are to assess a request for assisted dying, what the precise steps leading to death will be, and how the people involved in helping a person to die will be protected from criminal prosecution.

The importance of voluntariness

It is fundamentally important that any person who makes a request for assisted dying under the legislation does so completely voluntarily and without coercion or pressure of any kind from any other person. Any request that is not voluntary is no request at all. It should therefore be part of the legislatively adopted process that the doctors involved must be completely satisfied that the request is truly voluntary and free of coercion before acting to help the person to carry out their wishes.

It is also clear that it should be illegal to coerce a person into making such a request or to deceive them in such a way that the voluntariness of their request is undermined. Such new coercion and deception offences would be necessary because the existing offences of inciting suicide and aiding and abetting suicide would probably not apply in such cases, as a request for assisted dying is highly unlikely to be viewed by the courts as constituting an attempt to commit suicide.

Some things must not be said?

There is then the question of whether it should also be a crime to encourage someone to request assistance to die. I believe it should. No one, whether health professionals, family, friends or strangers, should be allowed to encourage, urge or recommend another person to request assisted dying. The offence would not require proof that the person who was encouraged did in fact make the request or that their free will was actually overborne. It is simply the act itself which would be prohibited. Of course, the criminal law is a blunt instrument and should not always be the first tool that policy makers reach for in seeking to achieve some desired goal. But when it comes to suicide and assisted suicide the stakes are already very high and the criminal law becomes a more appropriate regulatory tool.

The danger of a culture that expects suicide

The offence would be immediately concerned with protecting the autonomy of those who might request death, by prohibiting conduct that has the potential to influence a person’s free choice.

A further reason for including an encouraging offence in the assisted dying legislation is that it would help reduce the risk of creating a cultural atmosphere or environment in which suicide becomes something expected of people in certain difficult circumstances.

One of the most significant concerns regarding the enactment of euthanasia and physician-assisted suicide legislation is the unintended consequences it may bring. One such unintended consequence could be that some vulnerable people may feel that the passage of such legislation will create not just a right to seek assisted dying but also a pressure or expectation to do so where one is a ‘burden’ on society or on friends or family.

However, no civilized and caring society should create or allow an atmosphere in which vulnerable people felt a pressure to request assisted dying because they are old, unwanted, disabled, a ‘drain’ on the health system or their families, and so on. No one has an obligation to request assisted dying and it should never be seen as a favour to anyone else for a person to make such a request.

Including an encouraging offence in the legislation would help to clearly state that the decision to request assisted dying is a very serious matter that is the concern solely of the patient concerned. The offence would help to mark out the voluntary assisted dying process as a legally unique exception to homicide law and is not intended to normalise suicide or make suicide just another one of the medical treatment options available to the very sick.

Exception for providing requested information

The legislation should make clear, however, that simply providing information about assisted dying in response to a request for such information will not count as encouraging a person to request voluntary assisted dying.

Doctors and others should be allowed to provide information about voluntary assisted dying to patients who ask for that information. However, providing such information on request does not include recommending that the recipient of the information choose that option.

Justified limit on free speech

The proposed encouraging offence would leave people free to express their general opinions, whether positive or negative, about euthanasia and assisted suicide and about the particular legislation. But no one has a right, under the guise of the ‘free expression of their opinions’, to encourage a particular individual to ask to be helped to kill themselves. It is no one’s business to recommend death or suicide to another person, even if done out of love or compassion.

It may be that doctors, family members and friends will need to choose their words carefully when discussing options with a person who is very sick and in pain. But that is as it should be. This is not a matter of ‘chilling free debate and discussion’ but rather of thinking and speaking with care, compassion and respect, so as to affirm that everyone’s life is valuable and that the decision to request assisted dying must always be the individual’s alone.

 

Lise Leitner