Voluntary Euthanasia and the Common Law

By Margaret Otlowski | Go to book overview

Conclusion

As was acknowledged from the outset, active voluntary euthanasia is a notoriously complex and controversial issue. This work is by no means the last word on the subject, but simply a contribution in a vast debate which is developing at an accelerating pace and becoming increasingly prominent.

On the basis of the analysis in the foregoing chapters, certain conclusions can be drawn. It is clear from the analysis of the criminal law in Chapter 1 that there is a sharp distinction in the law's approach to passive and active euthanasia. Whilst the law recognizes the patient's right to refuse treatment and permits passive euthanasia in certain circumstances, active voluntary euthanasia is unequivocally prohibited in most jurisdictions as murder regardless of the special mitigating circumstances usually existing in such cases.1 Further, as was explained in Chapter 2, a doctor who actively assists a patient to commit suicide will be criminally liable for the offence of assisting suicide irrespective of the special circumstances.2 However, a doctor may lawfully comply with a patient's request for the withholding or withdrawing of life-saving treatment which will result in death: although the patient's conduct may in fact constitute a form of suicide by omission, the courts have rejected this characterization, albeit on spurious grounds, and have thus been able to hold that the issue of assisted suicide is not implicated in these circumstances.

Notwithstanding the present legal prohibition on active voluntary euthanasia and doctor-assisted suicide, substantial evidence has been put forward in Chapter 3 from all common law jurisdictions under consideration which indicates that doctors are already involved in these practices. However, this conduct is largely hidden and doctors are very rarely prosecuted for performing active voluntary euthanasia or assisting the suicide of their patients. From the experience to date, there is every possibility that if a prosecution does arise in a genuine case, the doctor would escape the full rigours of the criminal law. However, as the prosecution of Dr Cox in the

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1
Note, however, the position in the Northern Territory of Australia discussed at pp. 345-57 above. Note also the Netherlands position discussed at pp. 391-455 above.
2
Note, however, the US case law developments recognizing a constitutionally-protected interest in physician-assisted suicide for competent, terminally ill patients: Compassion in Dying v. State of Washington No. 94-35534 (9th Cir. March 6 1996) (en banc) and Quill v. Vacco No. 60 (2nd Cir. April 2 1996) discussed at pp. 101-121 above. Note also the legislative developments in the US State of Oregon: see pp. 369-73 above.

-494-

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Voluntary Euthanasia and the Common Law
Table of contents

Table of contents

  • Title Page iii
  • Preface v
  • Acknowledgements xiv
  • Contents xv
  • Table of Cases xxi
  • Introduction 01
  • 1 - Euthanasia Under the Criminal Law 12
  • 2 - Suicide and Assisted Suicide 56
  • 3 - The Position in Practice: Doctors' Practices and the Law Applied 127
  • 4 - The Euthanasia Debate 187
  • 5 - The Changing Climate for Reform 257
  • 6 - Moves Towards Reform 333
  • 7 - The Netherlands 391
  • 8 - Options for Reform 456
  • Conclusion 494
  • Appendix 503
  • Select Bibliography 520
  • Index 553
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