Voluntary Euthanasia and Assisted Suicide in Australia - Assignment Example

LEGAL RESEARCH DISSERTATION PROPOSAL A. Research Topic The legality of euthanasia: arguments for and against the need to decriminalise voluntary euthanasia and assisted suicide in Australia and the way forward. The focus of the proposed research will be to evaluate the legal status of voluntary euthanasia and assisted suicide within the current legal framework in Australia and how this compares with current trends in other jurisdictions. The research will then review arguments that have been advanced for the need to decriminalise voluntary euthanasia and assisted suicide in Australia and how this trend has been managed in other jurisdictions. Future trends in relation to the issue will then be examined. Word Count: 4004 Table of Contents A. Research Topic 1 B. Research Background 2 C. Literature Review 4 1. The legality of euthanasia in Australia 4 2. Legalising euthanasia in Australia: the way forward 7 D. Research Question 8 E. Significance of the Research 9 F. Research Method 9 G. Research Plan 10 H. Research Findings 11 BIBLIOGRAPHY 13 B. Research Background In general, the issue of euthanasia has elicited a lot of controversy.1 The controversy has so far been based on several issues, key among them being how to define euthanasia as well as the moral, legal and ethical aspects of the practice. The concept of euthanasia has several different dimensions.2 Simply put, euthanasia can be described as the process in which a person carries out an action that is intended to end the suffering of another person. It is important to note that this definition is simplistic and overlooks several complex perspectives that are associated with the concept of euthanasia. For example, the aspect of voluntary euthanasia refers to the practice in which the act of ending one’s life is carried out at the behest of the person. The person who requests the process is usually expected to be competent and willing. On one hand, euthanasia can be seen within the context of assisted suicide. Another example of how complex the concept of euthanasia is arises from the perspective of assisted suicide. In this case, a doctor may provide to a patient a means by which the patient may kill himself or herself. This is when a patient wilfully expresses his or her wish to end his or her life as a way of ending suffering. Hence, it can be seen that euthanasia is a complex concept at least in theory and that constructing a single and comprehensive definition of the concept is difficult. Euthanasia has a long history. Ayobami notes that the issue caught public attention back in the mid 1930s in the United Kingdom following the establishment of the Euthanasia Society.3 The Euthanasia Society of America was then established in 1938.4 The establishment of these two bodies in the two regions marked the beginning of concerted efforts to legalise euthanasia. As it would be expected, these efforts were met by equally concerted campaigns against any attempt at legalising euthanasia. Following these developments, the debate for or against euthanasia has been growing in different regions of the world. The controversy surrounding the issue is based on the morality of the act of ending the life of another individual.5 The argument of those who are against euthanasia is that it is morally and ethically impossible to justify an act of ending the life of a fellow human being.6 This argument is based on the premise that human life is sacred and that no fellow human being can justifiably end the life of another human being. On the other hand, proponents of euthanasia have argued that the practice is far away from murder.7 It has been argued that on one hand, human beings have the right to die just as they have the right to live.8 This argument has been used to support the campaign for the legalisation of the form of euthanasia in which a terminally ill patient can request a doctor to help him or her to die. The complexity of the moral and ethical perspectives of the euthanasia is seen in the arguments that have been advanced in favour of or against the practice. It has been argued that the right to life implies that people also have the right to die.9 Further, it has been argued that for practical purposes, euthanasia can be effectively regulated and that legalising the practice will not necessarily lead to instances in which the legality of the practice will be abused. In practice, the legalisation of euthanasia has been characterised by the need to address very complex issues and set detailed guidelines that are meant to regulate the practice. For example, in the Netherlands where the practice is not criminalised, it can be seen that the authorities have sought to maintain tight control over the practice by establishing highly detailed and strict rules and regulations. 10 For example, in the Netherlands, one of the main regulations that are used to control the manner in which euthanasia is applied is related to the need for the patients on whom euthanasia is carried out to understand the process and make the decision on their own. The rules require that for doctors to safely carry out voluntary euthanasia on a patient, it is mandatory for the doctors to make sure that the patient has made a voluntary request which has been well considered. In addition, there is need for the doctor to ascertain that the patient is suffering unacceptably and that the decision to carry out euthanasia is made after consultation with another doctor.11 The essence of the complexity and detailed nature of the rules is to protect the right of individuals to make decisions about their lives and, by doing so, ensure that the practice of euthanasia is not abused. Here in Australia, the issue of euthanasia remains a controversial one.12 There have been endless attempts at decriminalising all forms of euthanasia.13 However, these attempts have been met with equally strong counterarguments. This has led to a state in which the need to legalise euthanasia remains a complex issue is Australia. It is based on this state of affairs that the proposed research will be conducted. C. Literature Review 1. The legality of euthanasia in Australia In general, all the different forms of euthanasia remain illegal in Australia. Cica observes that under the various criminal law legislations that are currently in force in the different territories of Australia, the act of ending the life of any other person is considered murder.14 It is further observed that even the practice of helping another person to end his or her life is considered a serious criminal offence in all territories in Australia.15 Similarly, Ebrahimi notes that the criminal status of any form of euthanasia in Australia is enforced in two ways. 16 The first one is the provisions of the common law in the states in which the common law is in force.17 The second one is the various criminal legislations in different territories in which the specific provisions of the common law that are related to the issue may not be necessarily applicable.18 This means that the illegality of euthanasia in Australia is enshrined in the different legislations that are in force in different territories of the country.19 There has been a sustained campaign to decriminalise euthanasia in Australia. The basic approach that has been taken in this effort is to introduce bills into parliament that seek to change the legal provisions which are contained in specific forms of legislation that criminalise euthanasia. Willmott, White, Christopher, Stackpoole, Purser and McGee trace the history of these attempts and conclude that the process can best be understood when it is divided into two periods: the early years and the current times.20 It is noted that the period during the early years of attempted reforms to the legislations of Australia in relation to euthanasia was marked with the introduction of bills such as the Voluntary and National Death Bill in the Australian Capital Territory back in 1993.21 On the other hand, the modern era of the campaigns for the decriminalisation of euthanasia has been marked with the introduction a wide range of bills that seek to amend specific legislations that criminalise all forms of euthanasia in Australia. However, it is also noted that the majority of the 51 bills that seek to decriminalise euthanasia in Australia that have been introduced to parliament have failed to go beyond the Second Reading stage of the legislative process. Hence, as Biggs observes, as much as there is growing political pressure for decriminalisation of euthanasia in Australia, the process remains opposed at all stages of the legalisation process.22 What this means is that unless the contentious issues in relation to legalisation of euthanasia are addressed, it is highly unlikely that any progress will be made in the near future. Three conclusions can be drawn from the foregoing discussion. The first one is that euthanasia remains a criminal offence in Australia. The second one is that there has been a sustained attempt to change the status quo and create legal provisions that will make the practice of euthanasia legal in the country. This has taken the form of introduction of different types of bills that seek to change what the law says about euthanasia in Australia. The third conclusion is that in general, all these attempts at changing the law to allow euthanasia in Australia have not been successful. It is in light of these issues that the proposed research will be conducted. The research will seek to fill the void that exists in literature about the process of attempting to decriminalise euthanasia in Australia. So far, it has been seen that the focus of many studies has been on either supporting or opposing the process of decriminalising euthanasia in Australia. No study has been identified which focuses on tracing the history of the process, comparing it to global trends and making recommendations on the way forward. 2. Legalising euthanasia in Australia: the way forward There seem to be varied views about whether or not euthanasia should be legalised in Australia and, if legalisation should be done, what the best way of approaching the process is. For example, the practice of withdrawing critical treatment from a patient is not illegal in Australia. It is observed that under specific cases, doctors are allowed to withdraw life-sustaining treatment from a patient as long as the doctors are not obliged to provide the treatment to the patient under the law. Similarly, Mendelson observes that the right of doctors to withdraw critical treatment from a patient is enshrined in various legislations that are in force in different territories of Australia.23 For example, The Natural Death Act 1983 contains specific provisions that patients who are terminally ill can ask the doctors who are treating them to withdraw the treatment that is being used to keep them alive.24 The manner in which this decision is made is still regulated by several rules and guidelines. For example, the basis of the application of the law is that it is only when doctors are applying extraordinary measures to sustain the life of a patient that they can consider it possible to withdraw the extraordinary measures at the request of the patient. Similarly, in Victoria, patients who are terminally ill or who are considered competent are allowed to make decisions to refuse treatment when they are terminally ill.25 Willmott, White, Smith and Wilkinson have reviewed the manner in which the courts of law in Australia have handled legislation that is related to the decision of terminally ill patients asking for the withdrawal of life-sustaining treatment.26 From the 16 decisions that are analysed, it is stated that the manner in which the courts treat cases that are related to the issue is based on attempting to develop precedence to ensure that the interests of the patients are given primary consideration when the decision of whether or not to withdraw treatment is made.27 Hassan conducted a study to determine the attitudes of doctors in Australia towards the practice of euthanasia.28 The essence of the study was based on comparing the attitudes of Australian doctors towards euthanasia with those of Dutch doctors, the idea being that whereas euthanasia is generally legal in the Netherlands, it remains illegal in Australia. In the study, it was concluded that the opinion of doctors towards euthanasia remains divided.29 What appears to be the issue that is of concern is the extent to which the current or future legal provisions related to euthanasia do or will affect the codes of practice of doctors. D. Research Question In the course of conducting the proposed research, the following question will be used: What is the current state of affairs in relation to the process of legalising euthanasia in Australia? As a way of addressing this main research question, several specific questions will be used in the proposed research. The list below outlines the specific questions that the proposed research will address. It is based on these questions that a detailed process of analysing published sources that are related to the subject of the research will be conducted. a. What are the past trends that have occurred in relation to the process of attempting to decriminalise different forms of euthanasia within the Australian criminal law legislation? b. What is the current legal status of euthanasia in Australia and how does it compare with what is happening in different countries in the world? c. What are the key issues that are supposed to be addressed in relation to the process of attempting to decriminalise euthanasia in Australia and what is the way forward? In attempting to answer these questions, the researcher will be guided by the following propositions which are related to the specific questions of the research: a. That there has been a sustained political and legal effort to decriminalise all forms of euthanasia in Australia. b. That the current global environment is characterised by a sustained process of legalising all forms of euthanasia, regardless of the level of confusion, ambiguity and strict control. c. That the future success of the process of decriminalising all forms of euthanasia in Australia relies on the extent to which the complex issues related to the subject are adequately addressed. E. Significance of the Research There are several groups of individuals who will be interested in the findings of the proposed research. It is based on addressing their needs that the proposed research would achieve its significance. First, members of the academia community and students will be interested in the findings of the research. Specifically, since the research will offer a detailed analysis of the past, present and possible future developments in the process of legalising euthanasia in Australia, academics and students will find these findings useful. Second, findings of the research will be of importance to policy makers who are involved in the process of attempting to decriminalise euthanasia in Australia. Third, the findings of the proposed research will be of significance to different pressure groups that are involved in the process of either advocating for or opposing legalisation of euthanasia in Australia. This will be the case since the stance of the research will neither be in support nor opposition of legalising euthanasia in Australian law. F. Research Method The proposed research will be doctrinal legal research. Doctrinal research in law scholarship is defined as a form of research in which the researcher seeks to analyse and explain the legal provisions about a specific issue and,30 in so doing, identify the history of development and areas in the law that need to be addressed in the future.31 What this means is that this form of research in law is expository in nature. The essence of the proposed research will be to provide an expository analysis of what the current laws in Australia state about euthanasia, how this compares to trends in different jurisdictions in the world and the most complex issues that need to be addressed in the process of attempting to decriminalise euthanasia within the laws of Australia. With regard to sources, Chui notes that doctrinal research uses an array of sources that include the following: secondary sources, periodicals, textbooks and the Hansard.32 All these sources will be used in the course of conducting the proposed research. Academic textbooks will be relied upon to provide details about the specific issues that will be examined in the research. On the other hand, different types of academic articles will be used in the course of the research. Specifically, the researcher will use academic papers that have been published in peer-reviewed academic journals. The researcher will also review different forms of legislation that are related to the subject of the study. The research will also involve reviewing other reports and materials that will be deemed useful to the research process. The information that will be gathered from these different forms of materials will be used to help the researcher to provide answers to the specific questions that will be used in the research. G. Research Plan The following is an outline of how the specific activities of the research process will be conducted. Activity Details Timeframe Preliminary activities Choosing the research topic Gaining the necessary approval Preparing the research proposal 3 weeks Initial search of materials Searching for textbooks, articles and other materials that shall be used in the research Determining what materials will be used in the research using the themes of the research as criteria 1 week Preliminary reading Initial reading of selected materials to determine which specific question of the research they are related to. 2 weeks Document analysis Detailed reading of documents to determine the various opinions of different authors 2 weeks Final activities Compilation of a draft of the thesis Editing of the draft thesis Final compilation of the thesis 3 weeks H. Research Findings To start with, it is expected that the research will show that the world is progressively moving towards the process of legalising the different forms of euthanasia. Increased technological advances, political pressure from different rights groups and other social, cultural and technological changes are creating a situation in which different forms of legislation that seek to legalise different forms of euthanasia are being passed. As well, it is expected that the research will show that Australia is lagging behind in terms of developing specific legislation that will decriminalise euthanasia. It is expected that the research will show that many countries in the developing world are moving towards legalising or have already legalised different forms of euthanasia. However, it is expected that the findings of the research will show that as much as some countries have legalised euthanasia, the manner in which the process is carried out, as required by the law, remains highly complex. It is expected that the research will show that legal jurisprudence in relation to euthanasia is still under development and that in the countries in which euthanasia has been legalised, there exist highly detailed and sophisticate sets of rules to guide the practice. Also, it is expected that the research will show that there are many contentious issues that have to be addressed if the process of decriminalising euthanasia in Australia is to overcome the constant failures that it has been experiencing over the past. BIBLIOGRAPHY A. Articles/ Books/ Reports Ayobami, Samson Joshua, ‘Euthanasia: Socio-medical and legal perspective’ (2014) (4) 10 International Journal of Humanities and Social Science 253 http://www.ijhssnet.com/journals/Vol_4_No_10_August_2014/30.pdf BBC ‘Pro-euthanasia arguments’ 2016 http://www.bbc.co.uk/ethics/euthanasia/infavour/infavour_1.shtml Biggs, Hazel, Euthanasia, Death with Dignity and the Law (Hart Publishing 2001) 63 Burns, Kelly, ‘The impact of “empirical facts” on legal scholarship and legal research training,’ (2009) 2 http://www98.griffith.edu.au/dspace/bitstream/handle/10072/28586/56796_1.pdf?sequence=1 Cica, Natasha, ‘Euthanasia: the Australian law in an international context’ (1997) (4) Research Paper, Parliament of Australia http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/RP9697/97rp4#magic_tag_6 Chui, Wing Hong, Research Methods for Law (Edinburgh University Press 2012) 28 Craig Paterson, Assisted Suicide and Euthanasia: A Natural Law Ethics Approach (Ashgate Publishing 2012) n.pag Ebrahimi, Nargus, ‘The ethics of euthanasia’ (2012) (3) 1 Australian Medical Student Journal 73 http://www.amsj.org/wp-content/uploads/files/articles/amsj_v3_i1/AMSJ_v3_i1_pp73-75.pdf Fernandes, Ashley K ‘Euthanasia, assisted suicide and the philosophical anthropology of Karol Wojtyla’ PhD Thesis, Georgetown University 2008 5-7 https://repository.library.georgetown.edu/bitstream/handle/10822/553192/fernandesAshley.pdf?sequence=1 Hassan, Riaz, ‘Euthanasia and the medical profession: an Australian study’ (2008) 6 http://www.aic.gov.au/media_library/conferences/medicine/hassan.pdf Hutchison Terry C and Nigel Duncan, ‘Defining and describing what we do: doctrinal legal research,’ (2012) (17) 1 Deakin Law Review 2 http://eprints.qut.edu.au/54819/2/54801.pdf Mendelson, Danuta, ‘Legal and ethical ramifications of withdrawal of life support systems from incompetent patients’ (2000) 2 http://www.aic.gov.au/media_library/conferences/medicine/mendleson.pdf Tulloch Gail, Euthanasia, Choice and Death (Edinburgh University Press 2005) 99 Widdershoven, Guy AM ‘The moral basis of euthanasia in the Netherlands’ 2005 Willmott, Lindy, Ben White, Christopher, Stackpoole, Kelly Purser and Andrew McGee, ‘(Failed) voluntary euthanasia law reform in Australia: two decades of trends, models and politics’ (2016) (39) 1 UNSW Law Journal 1 http://www.unswlawjournal.unsw.edu.au/sites/default/files/391-1.pdf Willmott, Lindy, Ben White and Dominic JC Wilkinson, ‘Withholding and withdrawing life-sustaining treatment in a patient’s best interests: Australian judicial deliberations,’ (2014) (201) 9 MJA 545 https://www.mja.com.au/system/files/issues/201_09/wil10874.pdf B. Cases Australian Capital Territory v JT (2009) 4 ACTLR 68; [69] ACTSC 105 (JT) Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71 (Melo) C. Legislation Crimes Act 1900 Crimes Act 1958 Criminal Code Act 1913 Criminal Code Act 1899 Criminal Code Act 1983 Criminal Law Consolidation Act 1958 D. Treaties E. Other Read More