In the Netherlands voluntary euthanasia and assisted suicide are still criminal offences, but doctors are exempt from criminal liability in certain circumstances. The Netherlands Criminal Code Article , paragraph two, stipulates that the doctor:. The Dutch law also permits euthanasia for non-adults. Children of 16 and 17 can make their own decision, but their parents must be involved in the decision-making process regarding the ending of their life. For children aged 12 to 16, the approval of parents or guardian is required.
If a patient can no longer express their wishes, but made a written statement containing a request for termination of life before they became incompetent, a doctor is allowed to carry out their request providing the other conditions are met.
Two thirds of the requests for euthanasia that are put to doctors are refused. Neither doctors nor nurses can ever be censured for failing to comply with requests for euthanasia. Search term:. Read more. This page is best viewed in an up-to-date web browser with style sheets CSS enabled. While you will be able to view the content of this page in your current browser, you will not be able to get the full visual experience.
Please consider upgrading your browser software or enabling style sheets CSS if you are able to do so. This page has been archived and is no longer updated. Find out more about page archiving. Ethics guide. Regulation of euthanasia. A number of arguments were mounted against the use of this head of power to support the Draft Bill.
This included that there was no requirement in the Bill that the medical practitioner provide the service on behalf of a constitutional corporation. Accordingly, if the Bill is enacted but later found to be unconstitutional, medical practitioners may face the prospect of homicide charges despite fully complying with the provisions of the Bill.
It seems on balance that a relevant constitutional head of power most likely the medical services power may be relied on should Parliament decide to proceed with enacting a federal active voluntary euthanasia regime. While currently a comprehensive statutory scheme regulating active voluntary euthanasia practices does not exist in Australia, this is not the case elsewhere. Active voluntary practices have been legislated for, to varying extents, in other comparable countries which are considered below.
With the passing of the Termination of Life on Request and Assisted Suicide Review Procedures Act Neth , [] the Netherlands became the first country in the world to legalise euthanasia. Belgium became the second EU country to legalise euthanasia with the enactment of the Belgium Act on Euthanasia 28 May Luxembourg became the third European country to legalise euthanasia [] with the passing of The Law of 16 March on Euthanasia and Assisted Suicide Lux.
Article of the Swiss Criminal Code states that inciting or assisting suicide is a punishable offence, however it is only a crime if it is undertaken out of self-interested motivations.
Active euthanasia remains illegal in most of the United States. Assisted suicide is legal in the states of Oregon, Washington, Vermont and Montana, [] with legislation passed in both Oregon and Washington.
On 6 February the Supreme Court of Canada found that the prohibition on physician-assisted death in place in Canada in ss 14 and b of the Canadian Criminal Code unjustifiably infringed the right to life, liberty and security of the person in article 7 of the Charter of Rights and Freedoms in the Canadian Constitution. The Supreme Court suspended the declaration of invalidity of the provisions in the Criminal Code for 12 months, to give the Canadian legislatures time to revise their laws.
On 15 January the Supreme Court granted the Canadian governments a further 4 months to make any law reform. The declaration simply renders the criminal prohibition invalid.
The request for medical aid in dying must be signed off by two physicians. Unlike passive voluntary euthanasia, active voluntary euthanasia does not, in a regulatory sense, enjoy the same widespread acceptance. This is despite the apparent widespread public support for these practices as revealed in general polls on the issue. Currently legislative provisions on the administering of painkillers that hasten death are inconsistently regulated across states and territories.
From this situation have emerged various legislative attempts that seek to directly regulate active voluntary euthanasia practices. While such laws are not yet in existence in Australia, elsewhere such legislative schemes have been enacted and are in operation today. Another relevant source of guidance is to be found in a human rights-based analysis, which is contained in the following section. Australia is a party to seven key human rights treaties. The Convention on the Rights of Persons with Disabilities contains specific obligations in relation to people with disability that are also relevant to a discussion of voluntary euthanasia, and therefore will also be considered below.
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. The second sentence of article 6 1 imposes a positive obligation on States to provide legal protection of the right to life. The Committee stated that:. The UN Human Rights Committee expressed concern about whether the wording of the conditions under the Dutch law for legally terminating a life provided adequate safeguards.
It must ensure that the procedures employed offer adequate safeguards against abuse or misuse, including undue influence by third parties. When the Netherlands came up for review again by the Human Rights Committee in , the Committee again expressed concern about its euthanasia law, noting:.
In its most recent decision regarding end of life issues, Lambert and Others v France , [] the ECtHR considered whether the decision to withdraw artificial nutrition and hydration of Vincent Lambert violated the right to life in article 2. Vincent Lambert was involved in a serious road-traffic accident, which left him tetraplegic, and with permanent brain damage. He was assessed in expert medical reports as being in a chronic vegetative state, and required artificial nutrition and hydration administered via a gastric tube.
Article 7 therefore imposes a positive obligation on States to protect persons in its jurisdiction from ill-treatment reaching the requisite threshold. There are two ways in which it may be argued that a State denying a person the option of voluntary euthanasia may have the result of forcing them to endure cruel, inhuman or degrading treatment.
The first is that a prohibition on voluntary euthanasia may force people to live with extreme and chronic pain, against their express wishes. Her life expectancy was a matter of only months or even weeks. However, she had full mental capacity. The ECtHR noted that:. The final stages of the disease are exceedingly distressing and undignified.
As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity.
Because of her disease, the applicant was unable to end her own life. She sought an undertaking from the Director of Public Prosecutions not to prosecute her husband if he assisted her to commit suicide, as the latter was a criminal offence under English law. The Director refused. The applicant alleged, among other things, a violation of article 3 of the European Convention. A State prohibition on passive voluntary euthanasia i.
The physical integrity of a person which article 7 is designed to protect may be compromised if they are subjected to medical treatment without their consent. Interferences with personal including physical integrity which are not so severe as to fall within article 7 may however violate the right to privacy in article 17, as will be discussed immediately below. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
The question is whether legislation which prohibits voluntary euthanasia meets these requirements for a justifiable interference with the right to privacy.
The ECtHR has considered the relevance of the right to privacy in article 8 of the European Convention in the context of requests for access to voluntary euthanasia. While the wording of that article is not identical to article 17 of the ICCPR, the substance and scope of the right protected by both articles is sufficiently similar that comments made by the ECtHR about article 8 can offer useful guidance on the possible application of article 17 of the ICCPR.
As is evident from the facts in the cases of Lambert and Pretty discussed above , an analysis of the issues raised by voluntary euthanasia includes consideration of the rights of people with disability.
Australia is a party to the Convention on the Rights of Persons with Disabilities the Disability Convention , and therefore is under an obligation to ensure that people with disability enjoy all their human rights without discrimination of any kind on the basis of disability. The Disability Convention makes clear that all people with disability have an inherent right to life, and places an obligation on States to take all necessary measures to ensure that people with disability enjoy this right on an equal basis with others.
These obligations would, for example, prohibit States from passing laws which allow for involuntary euthanasia of people with disability because of their disability. However, in the case of voluntary euthanasia, the same balancing of the right to life with the right to personal autonomy that occurs for people without disability applies under the Disability Convention for those with disability.
The Convention makes clear that people with disability, like those without disability, have a right to respect for their physical and mental integrity, and privacy. They enjoy legal capacity on an equal basis with those without disability, and are entitled to support in exercising that capacity. Respect for the right of people with disability to make decisions includes deciding whether to agree to medical treatment. The right to enjoyment of the highest attainable standard of health art.
States parties have an obligation to require all health and medical professionals including psychiatric professionals to obtain the free and informed consent of persons with disabilities prior to any treatment. The UN Committee on the Rights of Persons with Disabilities has further stated that treating people with disability without their consent may violate a number of rights in the Disability Convention, as:.
This practice denies the legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the Convention. States parties must, instead, respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations; must ensure that accurate and accessible information is provided about service options Article 18 of the ICCPR requires protection of freedom of thought, conscience and religion, and provides that:.
Article 18 of the ICCPR distinguishes between the freedom to hold or adopt a particular belief, and the freedom to manifest that belief in conduct. It is clear from the different focuses of paragraphs 2 and 3 of article 18 that the freedom to hold a belief is broader than the freedom to act upon it.
The extent to which article 18 would require the State to permit actions based on these beliefs will depend on all the circumstances.
A law legalising voluntary euthanasia may need to make allowances for those whose beliefs in the sanctity of life would preclude them from being able to participate in end-of-life processes, in order to be compatible with article In that case the Court considered the right to freedom of thought, conscience and religion in article 9 of the European Convention.
The ECtHR held that:. Her claims do not involve a form of manifestation of a religion or belief, through worship, teaching, practice or observance as described in the second sentence of the first paragraph. To the extent that the applicant's views reflect her commitment to the principle of personal autonomy, her claim is a restatement of the complaint raised under Article 8 of the Convention. Rather it reveals a balancing of rights, the appropriate balance of which may be subject to competing views.
The right to life does not as a corollary include a right to choose to die. Laws prohibiting access to voluntary euthanasia may interfere with the right to respect for private life as guaranteed under article 17 of the ICCPR, and as such need to be able to be justified as a legitimate limitation of that right.
In relation to access to passive euthanasia, it is important to note that to subject a person to medical treatment against their will or without their consent may violate their physical integrity and breach their rights under article 17 and possibly article 7 of the ICCPR. Further, the Disability Convention makes clear that people with disability are entitled to the same respect for their rights to life, health, physical integrity and personal autonomy as people without disability.
If a State does choose to legalise voluntary euthanasia, article 6 of the ICCPR requires that the legislation includes strict and effective safeguards against abuse. The analysis suggests that there is no one identifiable right that necessarily requires the legalisation of voluntary euthanasia, nor is there one identifiable right that prevents its legalisation, provided stringent safeguards are instituted.
Individual support for the issue of euthanasia is, at its core, a matter of personal belief. Further, supporting euthanasia may not be an absolute position. A Tasmanian parliamentary committee reached a similar view in But a body of international experience with assisted dying regimes has emerged since, including legislation in Oregon and the Netherlands and Belgium So concerns about widespread abuse of voluntary euthanasia and assisted suicide laws appear to be unfounded.
There are now also a number of reports from parliaments around the world concluding that safe reform is possible. Depending on the design of the legislative framework, this could mean voluntary euthanasia or assisted suicide is available only to competent terminally ill adults who can make a voluntary and informed request for assistance to die. These criteria can be enforced through processes such as the provision of information, obtaining a second medical opinion and cooling-off periods.
The effective operation of a regime can also be overseen by an independent monitoring body. None of this should be taken as saying that concern for vulnerable people is not an important consideration.
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