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Four issues to consider when legislating for medically assisted dying

  • 20 May 2021
Australian jurisdictions are presently considering laws and policies relating to euthanasia, physician assisted dying and medically assisted suicide. Australia, like the US, Canada and the UK, is a democratic society under the rule of law, a society less dependent on religious roots than it was, and a society which prizes individual autonomy for all its citizens, including those who are living longer than their predecessors.

The law can and should provide bright line solutions or at least firm parameters within which the dying, their loved ones and their care providers can negotiate dying and death.

In the past, doctors and nurses were obliged to do no harm and not to do anything which was primarily intended to cause death. Once those obligations are varied, there is a range of issues requiring consideration by parliaments and courts. I will mention just four, and conclude with an observation on the often parodied ‘slippery slope’.

First there is a need to strike the appropriate balance between autonomy for the invulnerable and protection for the vulnerable.

We are now at the frontier determining whether the administration of a fatal injection is the same as switching off a ventilator and whether state assisted and state authorised suicide should be restricted only to some groups or made available to all self-determining citizens whether or not they are suffering a painful terminal illness. In striking the necessary balance between individual autonomy and the common good, Lord Sumption put it well in the United Kingdom Supreme Court:

‘There is no complete solution to the problem of protecting vulnerable people against an over-ready resort to suicide . . . The real question about all of these possibilities is how much risk to the vulnerable are we prepared to accept in this area in order to facilitate suicide for the invulnerable . . . There is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a state’s most fundamental collective moral and social values.’ (R (on the application of Nicklinson and another) v Ministry of Justice, [2014] UKSC 38, [229].)

'It is questionable whether we have enough in our philosophical toolbox when dealing with difficult new social questions if the only instruments available are autonomy, human rights and non-discrimination.'

Second there is a need to