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Insights

Most could not imagine facing a biological death sentence, and even fewer still could understand the choice to end one’s life prematurely in a bid for relief and dignity in death.  Yet this month the debate of a right to death and the decriminalisation of assisted suicide will receive renewed attention as the Rights of the Terminally Ill Bill is introduced to NSW State Parliament by the Greens Party.

There immediately comes to mind a number of concerns for a law that effectively permits actively inducing death.  Assisted suicide has been decriminalised in a select number of countries including Switzerland (1918), and more recently the Netherlands (2002), and Oregon (1994) and Washington (2008) in the United States, where a medical practitioner is permitted to prescribe the legal drug barbiturates to a terminally ill patient for self-administration.

Each jurisdiction shares a number of key principles that aim to simultaneously establish new rights for terminally ill persons and their physicians, and protect them from an abuse of this high-risk law.  For example terminally ill persons need to be of sound mind and physically able to ingest the lethal drugs to qualify for an assisted suicide. Any form of encouragement or active assistance by a third party including family members exposes them to criminal liability.  Further, in Oregon and Washington’s legislation, a choice made for an assisted suicide has no effect on a patient’s Will, health or life insurance policies, or any contracts they are a party to.

With an ageing population, the Rights of the Terminally Bill 2013 could not have arrived at a more crucial moment for the future of human rights, health, and criminal law reform in Australia.  The examples made by Switzerland and the United States show that such complex law can be a workable success, but whether the Australian public is ready for such a dramatic shift in tradition and a leap of faith in the legal system to both liberate and protect terminally ill persons is another question entirely.

This article was written by Partner Michael Hatfield.