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Michael's essay

Essay topic:

It has been suggested by Helga Kuhse and Peter Singer in their article 'Active Voluntary Euthanasia, Morality and the Law' (1995) 3 Journal of Law and Medicine 129, that the primary focus in determining the legal possibility of medical end-of-life decisions should be the issue of patient consent rather than the subjective intention of the doctor or nurses. Comment critically with reference to the current legal position in Victoria and contrast this with the approach taken in some overseas jurisdiction.

Whether or not euthanasia is being practised in the community is no longer a topic of debate. Surveys of Australian doctors and nurses have established that requests by patients for a hastened death are commonplace and that compliance with them occurs in around half of these cases 1. At present, Euthanasia is hidden behind the notion of double effect, that is, that a doctor may legally administer drugs that he or she knows will hasten death if his or her primary intention is to alleviate the pain of the patient 2. This is a flawed notion in that it is almost impossible to disprove a doctor's assertion of what his or her primary intentions were. It lends itself to the abuse of doctors who seek to hasten the death of a patient without their consent, no matter how altruistic their intentions for doing so are.

It is completely undesirable for the death of a patient to be brought about or hastened without their consent, and we must therefore change the way we view the issue of the legal-permissibility of euthanasia. Our focus must no longer be on the intentions of the doctors making medical end-of-life decisions, but on whether the rational consent of the patient whose death is being hastened has been obtained. Active voluntary euthanasia has become accepted by the majority in the community and can no longer be branded as an immoral and illegal practice. Just as a there is a clear distinction between making love and rape, and between a gangster stabbing someone maliciously and a doctor making an incision during surgery, there is a clear difference between culpable murder and active voluntary euthanasia 3 (see below for definition.) In all three cases the consent of those involved "deprives the act of its anti-social character." 4

Euthanasia is often used as an umbrella term that lends itself to confusion. For clarity's sake it is important to distinguish between the different types that exist: (Please note that since non-voluntary and involuntary forms of euthanasia do not involve the procuring of consent, they will be disregarded in this essay.)

  1. Passive voluntary euthanasia: An omission or inaction by a doctor holding the consent of the patient that results in death. For example, the withholding of life-prolonging treatment.
  2. Active voluntary euthanasia: An act by a doctor who has the patient's consent that results in their death.
  3. Assisted suicide: The doctor provides the means by which the patient can commit suicide. 5

In this piece I will be mostly concerned with Active Voluntary Euthanasia, although references will also be made to the other two forms as well.

The Victorian legal position

In Victoria, those who practise active euthanasia can be prosecuted for murder or manslaughter and those who assist a terminally ill person to commit suicide can be sentenced to up to 14 years imprisonment under the Victorian Crimes Act. 6 While it is the same legal position as that for normal homicide and assisted suicide 7, the way in which they are judicially treated differs. Most cases are not prosecuted at the discretion of either the police or the crown prosecution. The few cases that do make it to trial are treated extremely leniently, with either the jury returning a 'sympathy verdict' of not guilty or the judge imposing an extremely lenient sentence for those who are found guilty. 8

In 1988 'The Victorian Medical Treament act' was enacted to clarify the common law position regarding the refusal of treatment by a patient. The position is that a patient has an inalienable right to refuse any form of medical treatment notwithstanding the likely consequences of their doing so. 9 It is interesting to note that withholding treatment necessary to preserve life is a form of passive euthanasia, and that patients are therefore already able to consent to a form of euthanasia. As yet, however, the realms of the law have not been extended to permit a terminally ill patient from consenting to active euthanasia.

The legal situation in Holland

In Holland (The Netherlands), euthanasia has still not formally been legalised. They have, however, implemented a policy by which doctors who comply with strict regulations and guidelines will not be prosecuted for practising active euthanasia or assisting a patient to commit suicide. 10 The guidelines that were put in place by the courts and the Dutch Medical Association are as follows:

  1. there must be physical or mental suffering that is unbearable to the patient.
  2. the decision to die must be the patient's own.
  3. the patient must fully and correctly understand his or her situation and must be capable of assessing the options available.
  4. there must be no other solution acceptable to the patient.
  5. the suffering and desire to die must be lasting and not transient.
  6. the time and the way the patient dies must not cause unavoidable misery to others
  7. the doctor involved has to consult another professional.
  8. a medical doctor must be involved in the decision and in prescribing the correct drugs.
  9. the decision process and the actual treatment given to help the patient die must be carried out with the utmost care.
  10. the person does not have to be terminally ill. For example, they could be quadriplegic.
  11. the doctor must keep a full written record of the case
  12. the death must be reported to the prosecutorial authorities as a case of euthanasia or assisted suicide, and not as a case of death by natural causes. 11

There was a concern that the Dutch experiment would lead to an increase in the number of cases of involuntary euthanasia, but this has not been substantiated in any way. On the contrary, according to the Remmelink report the implementation of the new policy has reduced the number of involuntary (i.e.- without the patient's explicit consent) cases from 0.8% to 0.7% of the total number of deaths in Holland. 12

Intention and the notion of "double effect"

Intention bears considerable significance not only in the Criminal Law, but also in the way members of the general community assess the conduct and character of others. 13 Our continuing focus on the intentions of doctors involved in the treatment of the terminally ill is perhaps therefore understandable. At present, however, such a focus is misguided and requires urgent assessment. In order to highlight this problem, take the following examples:

Dr. E is treating a terminally ill cancer patient. She is in considerable distress and pain and makes several explicit requests to have her life terminated. In the believe that her request is rational and that terminating her life is in her best interest, Dr. E rapidly increases his patient's morphine dosage and she dies within three days, a week earlier than would have normally been the case.

Dr. M is treating a patient in a similar situation. She is in a great deal of pain and seems close to death. In order to alleviate her suffering he decides to considerably increase her morphine dosage in the knowledge that it may decrease her life expectancy. She dies a week later. 14

While there is little difference in the results of their actions, according to the law as it stands the two doctors' conduct would theoretically be treated differently. While Dr. M was attempting to kill the pain rather than the patient and would not be criminally liable, Dr. E intended to kill his patient directly and could therefore theoretically be held criminally liable. The fact that Dr. E's patient made an explicit and rational request to have her life terminated would theoretically bear no significance in the eyes of the law. Despite the fact that Dr. E's actions are illegal, however, it would be quite difficult to secure a conviction, even if his patient had not consented, for the following reasons:

  • the majority (78%) in the community have overall come to accept mercy killings as being morally acceptable. 15 It would therefore be difficult to envisage a jury convicting Dr.E given that they are a representative body of the community.
  • the test for criminal culpability is a subjective one and it would be difficult to disprove a doctor's assertion of his medical intentions. 16

That there is little chance of a conviction in such a case sends a clear message to medical practitioners that active voluntary euthanasia is acceptable even in non-consensual cases. While it would be quite possible to discern the motives of a doctor who had used a non-therapeutic barbiturate from one who had used morphine, 17 those who use therapeutic drugs such as morphine even with the primary intention of killing their patient face little risk of prosecution. It is submitted that there is therefore an unacceptable risk of abuse by doctors who seek for whatever reason to terminate the life or hasten the death of a patient without their consent. Moreover, where the illegal death of a patient is disguised by the notion of double effect, the infringement on the rights of the patient whose life is terminated puts at risk the rights of us all. 18

The fact that conviction of those who practice active euthanasia at present is a rarity contradicts a basic principle upon which the Criminal Law was based: that criminal culpability should serve and be premised upon community interests and values. 19 Culpable homicide is rightly forbidden by the Criminal Law, but Active Voluntary Euthanasia should remain criminal only if the community's morality is opposed to its practice. 20 Morgan Opinion Polls indicate that support amongst Australians for active voluntary euthanasia has been growing steadily over the past two decades, with 78% in support and only 13% against its practice in 1995. (8% were undecided). 21 Clearly there is overwhelming support in the community for active voluntary euthanasia and convincing arguments must therefore be provided to justify its continued prohibition.

Consent and the issue of morality

Consent has already been accepted as bearing legal significance in end of life decisions: it has long been a principle at Common Law that one may refuse any form of life-prolonging treatment, and the enactment of the Medical Treatment Act in 1988 affirmed this position in Victoria. One can therefore consent to what would otherwise amount to unlawful homicide by a doctor who is under a professional duty of care. The question may then be asked why one can consent to one form of homicide but not to active voluntary euthanasia? Why are such arbitrary limits being placed on our consent?

It is generally the case that where an act is considered to be at odds with the morality of society, consent is not an acceptable defence. 22Therefore, while one can consent to being kissed on the cheek notwithstanding that the kiss would otherwise constitute a common assault, one cannot generally consent to conduct that results in bodily harm. 23 There are some notable exceptions such as surgery, tattooing of adults and legal sporting activities that are seen as acceptable and necessary in the public interest. For all three activities consent can be used as a defence. 24

Lord Devlin's comments in The Enforcement of Morals (1965) are quite pertinent when addressing the issue of consent:

"There are certain standards of behaviour or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured, but against society as a whole." 25

The question is whether active voluntary euthanasia should fall into the category of offences described by Lord Devlin as "against society as a whole"? Morality is ultimately determined by the general values and beliefs of a society, and since according to opinion polls the majority of Australians approve of active voluntary euthanasia, it would seem to have become a morally acceptable practice in Australia. 26 The only other possible justification that the government can have for continuing to prohibit active voluntary euthanasia is that it is harmful to society in ways that cannot be appreciated by the general public. But when a terminally ill adult of sound mind makes a carefully considered decision to have his or her life terminated by a medical practitioner also of sound mind, how can this be harmful to the community as a whole? There is no evidence that the Dutch have taken a slide down the proverbial "slippery slope" as a result of the implementation of their more liberal euthanasia policy. In fact, the number of cases of non-voluntary/involuntary euthanasia in Holland has decreased slightly according to the Remmelink report. 27 Rather than declining as a result of more liberal euthanasia laws, society will be enriched by the compassion and respect for the autonomy of the individual that such a change of approach will encourage. 28

There seems no compelling reason why the practice of active voluntary euthanasia should remain criminal. It is considered to be a morally acceptable practice to which competent and informed adults should be allowed to consent in a democratic society. There is a concern that terminally ill patients are in a state of depression and are therefore incapable of making such an important and significant decision. It is understandable that a terminally ill patient will experience depression, and if the patient is in a persistent depressed state as a result of their gradual physical degeneration then surely this can be seen as just another symptom of their debilitating illness. Like pain, a feeling of depression is likely to influence their decisions, but as long as reasonable efforts are made to manage it, a patient's depression should not be viewed as a reason to dismiss their continued pleas for a hastened death as irrational. The issue of depression is not raised in relation to the right of a patient to refuse life-prolonging treatment under the Medical Treatment Act 1988 (Vic), and it therefore follows that it should not preclude a terminally ill patient from seeking the positive assistance of a medical practitioner to end their suffering. 29 To deprive them of such a right to choose is the ultimate act of unjustifiable medical paternalism.


A common argument against the legalisation of active voluntary euthanasia and physician-assisted suicide is that it is unnecessary; that greatly improved palliative care techniques can now cater for the majority (around 95% 30) of terminally ill patients. Just because physical pain can be reasonably managed, however, still does not mean that patients are able to die comfortably and with dignity. To think that we can eliminate all suffering is an unattainable dream. Most patients suffer from progressive weakness and degeneration of their quality of life that results from drug dependence and loss of function. In some cases patients can suffer from nausea, suffocation, incontinence, psychological distress and confusion, not to mention the discomfort that those 5% for whom palliative care is ineffectual experience. 31 The cry for legalisation of voluntary euthanasia is a cry for the freedom to take control of ones time of death; a cry for a dignified end in a society where the ideological imperative to treat at all costs is compromising the quality of life of the terminally ill individual. 32

The answer lies in a change of focus. No longer can we continue to make futile attempts to ascertain the intentions of doctors treating their terminally ill patient in the view that it makes a significant moral difference. Such a focus is at odds with society's values and lends itself to the abuse of doctors who seek to terminate the life or hasten the death of a patient without their consent. What we should strive for instead is that doctors act in the best interests of their consenting, terminally ill patients in assisting them to die a dignified death. Voluntary euthanasia is no longer considered morally unacceptable by Australian Society, and no arguments have been put forward that reasonably justify the continued stifling of the consent of terminally ill patients to such a practice. With similarly strict restrictions as those implemented in the Northern Territory in 1995, active voluntary euthanasia will provide, in addition to palliative care, a carefully monitored means for terminally ill patients to find a peaceful and dignified end to their suffering.


  1. Baume P and O'Malley E, 'Euthanasia: attitudes and practices of medical practitioners' (1994) 181 The Medical Law Journal of Australia 137
  2. Johnstone M. J, Bio-ethics, a nursing perspective, (1st ed, Harcourt Brace Jovanovich Group, Sydney, 1989) pp. 262-266
  3. Hunt Dr. R, ' The Limits of Palliative Care' (1996), [Internet- (accessed 13 May 2000.)]
  4. Young P. W, The Law of Consent, (1st ed, The Law Book Company Limited, Sydney, 1986) p.131
  5. Sayers M, 'Euthanasia: At the intersection of jurisprudence and the criminal law' (1997) 21 Criminal Law Journal 81
  6. 'The Legal Situation', Voluntary Euthanasia Society of Victoria, [Internet- (accessed 1 May 2000)]
  7. Crimes Act 1958 (Vic.), s.3, s.5, s.6B(2)
  8. Otlowski M, 'Mercy Killing Cases in the Australian Criminal Justice System' Crim L J (1993) 17: 10-39 as cited in Sayers op cit 80
  9. Medical Treatment Act 1988 (Vic)
  10. 'The World', The Voluntary Euthanasia Society, [Internet- (accessed 12 May 2000)]
  11. Id 'Guidelines', Euthanasia in Holland, [Internet- (accessed 25 April 2000]
  12. 'The World', loc cit
  13. Gillet G. R, 'Intent in law and medicine' (April 1991) New Zealand Law Journal 116
  14. Kuhse H and Singer P, 'Active Voluntary Euthanasia' (1995), 3 Journal of Law and Medicine, 129
  15. Johnstone, op cit pp.253-254
  16. Kuhse and Singer, op cit 133
  17. Ashby M, "Hard Cases, Causation and Care of the Dying" (1995) 3 Journal of Law and Medicine 160
  18. Sayers, op cit 80
  19. Waller L and Williams C. R, Criminal Law: Texts and Cases, (8th Ed., Butterworths, Melbourne, 1997), p.4
  20. Biggs H, 'Euthanasia and Death with Dignity: Still Poised on the Fulcrum of Homicide' [1996] Criminal Law Review 888
  21. 'Morgan Opinion Poll', The Voluntary Euthanasia Society, [Internet- (accessed 12 May 2000)]
  22. Young, loc cit
  23. Waller and Williams, op cit, pp.75-79
  24. Young, op cit 122
  25. Lord Devlin, 'The Enforcement of Morals' (Oxford University Press, 1965) pp 6-7, as cited in Young, op cit, p.132
  26. 'Morgan Opinion Poll' loc cit
  27. 'The World', loc cit
  28. Hunt, loc cit
  29. Kuhse and Singer, op cit 134
  30. Hunt R "Palliative Care- The Rhetoric-Reality Gap" in H Kuhse (ed), Willing to Listen, Wanting to Die (Penguin, Melbourne, 1994), pp.115-137, as cited in H. Kuhse and P. Singer, 'Active Voluntary Euthanasia' (1995) 3 Journal of Law and Medicine 130.
  31. Hunt, loc cit
  32. McNamara B, Waddell C and Colvin M, "The Institutionalisation of the Good Death", Social Science and Medicine, (1994) Vol. 39, No. 11, at pp.1501-1508, as cited in Biggs, loc cit



  1. Johnstone M.J, Bio-ethics, a nursing perspective, First Edition, Harcourt Brace Jovanovich Group, Sydney, 1989
  2. Jonsen A.R, Siegler M and Winslade W.J, Clinical Ethics: A Practical Approach to Ethical Decisions in Clinical Medicine, Third Edition, McGraw-Hill Inc., 1992
  3. Kennedy I. and Grubb A, Medical Law: Text and Materials, First Edition, Butterworths, London, 1989
  4. Waller L and Williams C.R, (Brett, Waller and Williams), Criminal Law: Texts and Cases, Eighth Edition., Butterworths, Melbourne, 1997
  5. Young P.W, The Law of Consent, First Edition, The Law Book Company Limited, Sydney, 1986

Journal articles

  1. Ashby M, "Hard Cases, Causation and Care of the Dying" (1995) 3 Journal of Law and Medicine 152
  2. Baume P and O'Malley E, "Euthanasia: attitudes and practices of medical practitioners" (1994) 181 The Medical Law Journal of Australia 137
  3. Biggs H, "Euthanasia and Death with Dignity: Still Poised on the Fulcrum of Homicide" [1996] Criminal Law Review 878
  4. Buchanan J, "Euthanasia: The Medical and Psychological Issues", (1995) 3 Journal of Law and Medicine 161
  5. Cipriani T, "Give Me Liberty and Give Me Death", (1995) 3 Journal of Law and Medicine 177
  6. Freckelton I, "Withdrawal of Life Support: The 'Persistent Vegetative State' Conundrum", (1993) 1 Journal of Law and Medicine 35
  7. Gillet G. R, "Intent in law and medicine" (April 1991) New Zealand Law Journal 115
  8. Gillett G, "Ethical Aspects of the Northern Territory Euthanasia Legislation", (1995) 3 Journal of Law and Medicine 121
  9. Kuhse H. and Singer P, "Active Voluntary Euthanasia" (1995) 3 Journal of Law and Medicine 129.
  10. Mullen P.E, Euthanasia: "An Impoverished Construction of Life and Death" (1995) 3 Journal of Law and Medicine 121
  11. Sayers M, "Euthanasia: At the Intersection of Jurisprudence and the Criminal Law" (1997) 21 Criminal Law Journal 80

Internet sources

  1. 'Guidelines', Euthanasia in Holland, [Internet- (accessed 25 April 2000)]
  2. Hunt Dr. R, 'The Limits of Palliative Care' (1996), [Internet- (accessed 13 May 2000.)]
  3. 'Morgan Opinion Poll', The Voluntary Euthanasia Society, [Internet- (accessed 12 May 2000)]
  4. 'The Legal Situation', Voluntary Euthanasia Society of Victoria, [Internet- (accessed 1 May 2000)]
  5. 'The World', The Voluntary Euthanasia Society, [Internet- (accessed 12 May 2000)]
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