Legal aspects of active voluntary euthanasia in Australia

This thesis examines the present criminal law position with respect to medically administered active voluntary euthanasia in Australia. Under existing criminal law principles, whilst there is some scope for passive euthanasia, active volunta.rY euthanasia is treated as murder and no account is taken of the special circumstances existing in such cases. Notwithstanding this prohibition, there is evidence that Australian doctors are involved in the practice of active voluntary euthanasia. However, police and prosectors appear reluctant to intervene in this area of medical practice, and judging from the experience in other jurisdictions, there is every likelihood that if a doctor were prosecuted in Australia for having administered active voluntary euthanasia, the doctor would escape the full rigours of the criminal law. Against this background, this thesis seeks to highlight the problems which exist as a result of the marked discrepancies between law and practice in this area. Attention is also drawn to the law's differential treatment of active and passive euthanasia and the difficulties and anomalies which arise from the legal characterisation of a number of other medical practices which bear some similarity to active voluntary euthanasia such as the turning off of artificial life-support and the administration of pain-relieving drugs which are known to be likely to hasten the patient's death. The thesis argues that active voluntary euthanasia should not be subject to a blanket criminal law prohibition. This argument is based on a number of factors including the principle of self-determination, current legal and medical practice, changing community attitudes, and jurisprudential arguments regarding the proper role of the criminal law. The conclusion of this thesis is that the law with regard to active voluntary euthanasia in Australia should be reformed by the introduction of legislation creating· a very limited exception to the homicide laws that would confer on doctors an immunity from liability, provided active voluntary euthanasia is performed in accordance with strict criteria and safeguards. It is argued that the practice of active voluntary euthanasia by doctors in the Netherlands provides a useful guide to law reform in Australia.