Under strict conditions it allowed doctors to decide to "limit or stop any treatment that is not useful, is disproportionate or has no other object than to artificially prolong life" and to use pain-killing drugs that might "as a side effect, shorten life".
Two recent high-profile cases have made the headlines: a doctor accused of administering drugs that hastened the deaths of seven elderly patients was acquitted, and France's high court authorised doctors to stop treating and feeding a young man who had been in a vegetative state on life support for six years. In the latter case, the patient's parents have appealed to the European court of human rights and are awaiting a decision. A parliamentary report on the subject is expected at the end of this year.
Kim Willsher in Paris. Doctors are allowed to prescribe lethal doses of medicine to terminally ill patients in five US states. Euthanasia, however, is illegal. In recent years, the "aid in dying" movement has made incremental gains, but the issue remains controversial.
Oregon was the first US state to legalise assisted suicide. The law took effect in , and allows for terminally ill, mentally competent patients with less than six months to live to request a prescription for life-ending medication.
More than a decade later, Washington state approved a measure that was modelled on Oregon's law. And last year, the Vermont legislature passed a similar law. Court decisions rendered the practice legal in Montana and, most recently, in New Mexico. In , roughly terminally ill Americans were prescribed lethal medications, and around people died as a result of taking them.
Some patients choose not to take the medication. Lauren Gambino in New York. In German-speaking countries, the term "euthanasia" is generally avoided because of its association with the eugenicist policies of the Nazi era. The law therefore tends to distinguish between assisted suicide beihilfe zum suizid and "active assisted suicide" aktive sterbehilfe.
In Germany and Switzerland , active assisted suicide — ie a doctor prescribing and handing over a lethal drug — is illegal. 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. People may support some forms of euthanasia, such as passive voluntary euthanasia, while rejecting other, more active, forms of euthanasia.
The functions of the Australian Human Rights Commission include examining legislation and proposed legislation for compliance with human rights standards, [] and promoting understanding, acceptance and public discussion of human rights in Australia.
Any definitive position taken by the Commission on voluntary euthanasia will depend on the way in which it is framed in legislation. In the absence of a specific proposal to legislate for any form of euthanasia, the commentary below should be taken as indicative of a general position based on consideration of the relevant human rights laws and principles presented in this paper.
The most striking aspect of passive voluntary euthanasia, defined as the withdrawal or withholding of treatment by omission, is that it is already occurring, although is not referred to as such.
As these practices already exist, are generally accepted within the Australian community and are broadly consistent with human rights standards, there seems little to be gained in arguing for or against these practices. Instead the form of regulation in place can usefully be subject to scrutiny. Currently the regulation of passive voluntary euthanasia practices rests with the states and territories, where, in the absence of legislation or other regulation, the common law applies.
These systems also include an array of safeguards to ensure that decisions are voluntary and informed. From a human rights perspective, any potential breach of the right to life is arguably alleviated by the inclusion of strict safeguards in advance directives and enduring powers of attorney. Other rights — the rights to privacy and freedom of belief - are similarly served by these instruments that place at the forefront the control of the individual over their bodies, beliefs and end of life choices.
What can be subject to criticism is the inconsistent nature of this regulation. Common regulatory features exist between states and territories, however the level of regulation varies significantly as do the consistency in safeguards and liability provisions.
There may be a role for the Federal Government in leading development of a nationally consistent approach on this issue. The recent Senate Inquiry referenced Australian polls that show strong public support for active voluntary euthanasia. Yet unlike passive voluntary euthanasia, supporting active voluntary euthanasia would require law reform, where the form of regulation would be a matter of debate, rather than improving on an existing system. Notwithstanding this, the precedent has been set in Australia with the now invalid Rights of the Terminally Ill Act NT which has, subsequently, been used as the model for the exposure draft of the Medical Services Dying with Dignity Exposure Draft Bill presented to Federal Parliament in and subjected to a subsequent inquiry by the Senate Legal and Constitutional Affairs Legislation Committee.
People who would not wish to choose active voluntary euthanasia options could remain within the palliative care process and access the options it offers. All doctors would not be required to provide euthanasia services, only those who wished to do so.
Further, non-doctors could possibly be involved in the provision of euthanasia services, which currently occurs in Switzerland.
The practical solution to this would be to improve the safeguards contained within any regulatory regime in order to prevent this from occurring, to the greatest extent possible. This would not be the case if such practices were simply decriminalised. It is arguable whether practices amounting to active voluntary euthanasia are best regulated by criminal law provisions. However, it must be acknowledged that for some the best possible safeguard is a total ban on these practices that the criminal law currently provides.
Other international comparative jurisdictions may provide better safeguards or approaches to improve upon the model presented to Federal Parliament in 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. It is. And it is especially so when drafting voluntary euthanasia and assisted suicide legislation.
Paying attention to the interests of the elderly and disabled people actually ensures we use appropriate eligibility criteria in the legislation. And that those criteria are supported by robust procedural safeguards as well as effective and independent oversight mechanisms. We can draft legislation that permits choice for those whose suffering we cannot help as well as valuing and safeguarding vulnerable people in our community. Festival of Social Science — Aberdeen, Aberdeenshire.
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