Physician-assisted suicide differs from euthanasia as it requires the person who wishes to die to administer themselves with an agent to terminate their life. The physician’s role in this scenario is passive, as opposed to euthanasia where it’s the physician (or another person) who administers the life-ending agent.

Recent studies on euthanasia have shown overwhelming support in favour of legalisation by the Australian public[1] and by New South Wales doctors and nurses.[2] In light of this, let’s delve into the potential implications if, or when, the law changes.

Current law in NSW and Australia

Currently, physician-assisted suicide carries heavy penalties under NSW criminal law. Any person found guilty of aiding or abetting suicide, manslaughter or murder faces a maximum penalty of 10 years, 25 years or life imprisonment respectively.[3]

Healthcare practitioners may avoid criminal charges or regulatory implications in circumstances where they withdraw or withhold life-sustaining treatment from a patient, at that patient’s request. This is despite the knowledge that doing so will cause the patient to die. Similarly, a healthcare practitioner may give medication to a patient with the primary aim of relieving their pain and suffering, even though it’s foreseeable and inevitable that the medication will hasten the patient’s death.[4]

The push for law reform

Since the Northern Territory legalised physician-assisted suicide in 1995 (it was voided by federal legislation in 1997) the topic has heavily featured in parliamentary discussion. However, there’s been minimal progress towards legalisation. Attempts have been made in almost every state to legalise physician-assisted suicide and/or euthanasia but all bills have been defeated.

In May 2017, NSW came a step closer to legalising physician-assisted suicide by releasing the Draft Voluntary Assisted Dying Bill 2017. The NSW Parliament will debate and vote on the bill later this year. If passed, it will provide terminally ill people the right to request and receive assistance to end their lives voluntarily by administering a drug to themselves. The bill will also protect healthcare practitioners who provide such assistance from prosecution. In order to be eligible a patient must:

• be at least 25 years of age
• reside in NSW
• be suffering from a terminal illness that’s likely to result in the death of that patient within 12 months
• have decision-making capacity
• be assessed by their primary medical practitioner, as well as an independent medical practitioner and a psychiatrist or psychologist.

In late 2016, the Victorian Premier Daniel Andrews indicated a similar bill would be introduced into Victorian Parliament in the latter portion of 2017.

How courts deal with this issue

Despite the penalties, courts have dealt with cases leniently in circumstances where the person charged was motivated by compassion, and the deceased person was in severe pain and wished to end their life. Take this example of a 2011 NSW Supreme Court case. A long-term partner of a woman who suffered from chronic pain as a result of osteoporosis, arthritis and sciatica received a two-year suspended sentence for his role in assisting her suicide. The defendant’s assistance involved administering his partner anti-depressant medication and ultimately suffocating her. The Court found that the deceased was of sound mind when she decided she wished to end her life and requested her partner’s assistance. It also determined that his motivation for assisting her to die was compassion and, for that reason amongst others, imposed a relatively light sentence.

Another example in 2016 saw the Victorian Civil and Administrative Tribunal overturned a decision by the Medical Board of Australia restricting a doctor’s licence to practice medicine. The doctor had assisted a terminally-ill patient, who wished to die, to end their life.[5]

Such decisions indicate that Australian courts are sentencing in line with community expectations rather than the strict letter of the law.

2017 is set to be a significant year for the issue of assisted suicide and we’ll be following the developments with great interest.

[1] Clare Blumer, ‘Vote Compass: Aussies want it, but euthanasia still a “great untouched issue”’, ABC News (online) 26 May 2016 <http://www.abc.net.au/news/2016-05-25/vote-compass-euthanasia/7441176>

[2] James Robertson, ‘Euthanasia survey hints at support from doctors, nurses and division’, The Sydney Morning Herald (online) 24 June 2017 < http://www.smh.com.au/nsw/euthanasia-survey-draws-out-ethical-debate-among-doctors-and-nurses-20170624-gwxspn.html>

[3] Crimes Act 1900 ss 19A, 24, 31C

[4] Australian Medical Association Code of Ethics 2016 cl. 2.1.15

[5] Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150