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Voluntary Euthanasia and the Common Law

By Margaret Otlowski | Go to book overview

2
Suicide and Assisted Suicide

INTRODUCTION

In some cases, a doctor who is involved in bringing about a patient's death may incur criminal liability for assisting suicide as distinct from homicide. The object of this chapter is to look at the law in relation to assisted suicide1 and examine the circumstances in which a doctor may be subject to criminal liability for this offence. In the course of this analysis attention will be drawn to relevant analogies between the legal response to active and passive euthanasia on the one hand, as outlined in the preceding chapter, and assisted suicide on the other.

At common law, a person who committed suicide was regarded as a selfmurderer or felo de se (felon against himself).2 Consequently, anyone who instigated or aided another to commit suicide was guilty of murder as an accomplice. In England, the Suicide Act of 1961 abrogated the crime of committing suicide3 and created a new offence of 'aiding, abetting, counselling or procuring the suicide of another'.4 Under Scottish law, no specific offence of assisting suicide exists but such conduct may be treated as culpable homicide.5 In the USA, suicide is no longer a crime, but in most states, assisting suicide has been made a specific statutory offence.6 Similarly, in Canada, all Australian jurisdictions, and New Zealand, suicide and attempted suicide are no longer unlawful,7 but a statutory offence of assisting suicide has been established.8

____________________
1
For the purposes of this discussion, the word 'assisted' suicide will be used as a shorthand way to describe the various terms, aid, abet, procure etc. which are contained in the legislation prohibiting assisted suicide.
2
For a discussion of the history of suicide and its prohibition, see Trowell H., The Unfinished Debate On Euthanasia ( London, 1973) 1-11.
3
Section 1.
4
Section 2(1).
5
For example, the survivor of a suicide pact may be guilty of homicide, if he or she actually killed the deceased: see Gordon G., Criminal Law of Scotland, 2nd edn. ( Edinburgh, 1978) 727, 765.
6
See the New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context ( New York, 1994). In those US jurisdictions without statutes prohibiting assisted suicide, persons who aid in suicides may be subject to prosecution for murder or manslaughter: Smith C., "What About Legalized Assisted Suicide?" ( 1993) 8 Issues in Law & Med.505.
7
Attempted suicide was, until recently, an offence in the Northern Territory of Australia: Criminal Code 1983 s. 169 (repealed by the Criminal Code Amendment Act 1996).
8
Canada--Criminal Code 1985 s. 241; Australia--ACT Crimes (Amendment) Ordinance (No. 2) 1990 s. 17(1) and (2), NSW Crimes Act 1900 s. 31C(1) and (2), NT Criminal Code 1983

-56-

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