Prosecutorial Guidelines for Voluntary Euthanasia and Assisted Suicide: Autonomy, Public Confidence and High Quality Decision-Making

Article excerpt

[This article proposes offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. A similar policy has been produced in England and Wales but we consider it to be deficient in a number of respects, including that it lacks a set of coherent guiding principles. In light of these concerns, we outline an approach to constructing alternative guidelines that begins with identifying three guiding principles that we argue are appropriate for this purpose: respect for autonomy; the need for high quality prosecutorial decision-making; and the importance of public confidence in that decision-making.]


   I Introduction
  II Prosecutorial Guidelines in Australia
 III The Assisted Suicide Policy in England and Wales
  IV Proposed Voluntary Euthanasia and Assisted Suicide Guidelines:
   V Three Guiding Principles
       A An Autonomous Choice
       B High Quality Decision-Making
       C Public Confidence in the Exercise of Prosecutorial Discretion
  VI Autonomous Choice
 VII Elements and Direct Evidence of an Autonomous Choice
       A Competence
       B Voluntariness
       C Received or Offered Sufficient Information
       D Guidelines
VIII Confidence regarding whether Death Occurred as a Result of
       Autonomous Choice
       A History of Violence or Abuse
       B Settled Decision
       C Conflict of Interest
       D Reporting the Death
       E Guidelines
  IX Decision to Be Made by the Director of Public Prosecutions
   X Public Reporting of Decision-Making
       A Reasons for Decisions
       B Systemic Data Reporting in Annual Report
  XI Conclusion
 XII Appendix: Proposed Prosecutorial Guidelines for Voluntary
     Euthanasia and Assisted Suicide


Euthanasia and assisted suicide remain the subject of ongoing debate in Australia. Public interest has been sparked by a series of recent prosecutions, most notably those of Shirley Justins and Caren Jenning in connection with the death of Graeme Wylie. (1) Other recent prosecutions that have attracted attention include those of Ann Leith (2) and Victor Rijn (3) in Victoria, Merin Nielsen in Queensland, (4) and David Mathers in New South Wales. (5) A prominent part of the debate in this area has been directed to the need for reform and those efforts to date have focused on legislative change. For example, there have been a number of Bills recently introduced or considered in South Australia, (6) Western Australia (7) and New South Wales (8) seeking to liberalise the law. (9) There have also been reports of a forthcoming Bill being prepared in Tasmania, which has the support of the Premier of that state, (10) and there have been attempts at the Commonwealth level to repeal the laws that preclude territory governments from legislating in relation to euthanasia. (11)

One issue that has not yet received sufficient attention in the Australian context, however, is the use of discretion as to when cases of euthanasia and assisted suicide should be prosecuted. (12) Examination of the role that prosecutorial discretion might play in such cases is timely given recent developments in England and Wales and Canada. In 2010, after a period of public consultation, the Director of Public Prosecutions ('DPP') in England and Wales released its Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, which provides offence-specific guidance for how prosecutors will approach their decision of whether or not to prosecute. (13) In Canada, both the reports of the Royal Society of Canada Expert Panel on End-of-Life Decision-Making and the all-party Select Committee of the Quebec National Assembly included the adoption of prosecutorial guidelines as part of their recommendations for reform in this area. (14)

The purpose of this article is to develop offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. …