When ill is not ill enough—timeframe until expected death restrictions in Australian Voluntary Assisted Dying laws and human rights compatibility

ABSTRACT

In the past, aiding another person in ending their life or taking the life of another, even upon their request and with their consent, gave rise to criminal liability in all Australian jurisdictions. Consequently, neither doctors nor relatives could lawfully assist someone in dying. Since 2017, five Australian jurisdictions have introduced Voluntary Assisted Dying (‘VAD’) Acts allowing eligible individuals to end their lives with assistance. A person seeking access to VAD in Victoria, Western Australia, Tasmania, South Australia and Queensland must meet specific eligibility requirements including be diagnosed with a disease, illness or medical condition which is advanced, progressive and is expected to cause death within a specific timeframe ranging from six to 12 months depending on the jurisdiction. Using Queensland as an exemplar, this article analyses whether the VAD timeframe until death restriction limits individual human rights in Australian jurisdictions with human rights legislation and contemplates whether potential limitations are reasonable and justified. The article concludes that due to its severe impact on individuals wishing to end their life with assistance, the restriction is raising severe concerns about its human rights compatibility.

KEYWORDS:

• Voluntary Assisted Dying
• eligibility restrictions
• the right to life
• the right to liberty and security
• timeframe until expected death

Acknowledgements

I would like to thank the two anonymous reviewers of this journal for their valuable comments and suggestions on earlier versions of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Crimes Act 1900 (ACT) s 17; Crimes Act 1900 (NSW) s 31C; Criminal Code (NT) 1983 s 162; Criminal Code 1899 (Qld) s 311; Criminal Law Consolidation Act 1935 (SA) s 13A(5); Criminal Code Act 1924 (Tas) 163; Crimes Act 1958 (Vic) s 6B(2); Criminal Code 1913 (WA) s 288.

2 With the exception of those Australian jurisdictions which have introduced VAD Acts and where VAD is carried out in accordance with the law. Bartels and Otlowski note that prosecutions for assistance in dying, however, have been rare. See Lorana Bartels and Margaret Otlowski, ‘A Right to Die? Euthanasia and the Law in Australia’ (2010) 17(4) Journal of Law and Medicine 532, 533.

3 Crimes Act 1900 (ACT) s 12; Crimes Act 1900 (NSW) s 18; Criminal Code 1983 (NT) s 156; Criminal Code 1899 (Qld) ss 302, 305; Criminal Law Consolidation Act 1935 (SA) s 11; Criminal Code Act 1924 (Tas) ss 156, 158; Crimes Act 1958 (Vic) s 3; Criminal Code 1913 (WA) s 279.

4 Crimes Act 1900 (ACT) s 15; Crimes Act 1900 (NSW) s 18; Criminal Code 1983 (NT) s 160; Criminal Code 1899 (Qld) s 303; Criminal Law Consolidation Act 1935 (SA) s 13; Criminal Code Act 1924 (Tas) 159; Crimes Act 1958 (Vic) s 421(1); Criminal Code 1913 (WA) s 280.

5 Voluntary Assisted Dying Act 2017 (Vic) (‘Vic VAD Act’) s 3; Voluntary Assisted Dying Act 2019 (WA) (‘WA VAD Act’) s 5; Voluntary Assisted Dying Act 2021 (SA) (‘SA VAD Act') s 3; Voluntary Assisted Dying Act 2021 (Qld) (‘Qld VAD Act’) Sch1. The Tasmanian Act defines VAD in s 5 End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas) (‘Tas VAD Act’) as ‘the administration to a person, or the self-administration by a person, of a VAD substance under this Act’.

6 See Vic VAD Act ss 46, 48; WA VAD Act ss 56(1)(b), 59; Tas VAD Act s 86(3); SA VAD Act s 64; Qld VAD Act s 53. According to the Acts, the primary method is self-administration and practitioner administration is only possible where the person is incapable of self-administration (Victoria, South Australia) or where self-administration is inappropriate (Western Australia, Tasmania, Queensland). See Vic VAD Act s 48(3)(a); WA VAD Act s 56(2); Tas VAD Act s 86(5); SA VAD Act s 64(c)(i); Qld VAD Act s 50(2).

7 See Vic VAD Act ss 45, 47; WA VAD Act ss 56(1)(a), 58; Tas VAD Act s 91; SA VAD Act s 63; Qld VAD Act s 52.

8 Vic VAD Act s 79–82; WA VAD Act ss 113–115; Tas VAD Act ss 133–139; SA VAD Act ss 94–97; Qld VAD Act ss 147–149.

9 Vic VAD Act s 9(1)(d); WA VAD Act s 16(1)(c); Tas VAD Act s 6(1); SA VAD Act s 26(1)(d). In Victoria, Tasmania and South Australia the illness, disease or condition must be incurable. In Western Australia it is required that the disease will, on the balance of probabilities, cause death. In Queensland the disease does not have to be incurable but must cause death: Qld VAD Act s 10(1)(a)(i).

10 Vic VAD Act ss 9(1)(d)(iii), 9(4); WA VAD Act s 16(1)(c)(ii); Tas VAD Act s 6(1)(c); SA VAD Act ss 26(1)(d)(iii), 26 (4).

11 Qld VAD Act s 10(1)(a)(ii).

12 Vic VAD Act s 9(1)(b); WA VAD Act s 16(1)(b); Tas VAD Act ss 10(1)(b), 11 (in Tasmania it also suffices that where a person is not a permanent resident of Australia the person has been resident in Australia for at least 3 continuous years immediately before the person makes the relevant first request); SA VAD Act s 26(1)(b); Qld VAD Act s 10(1)(e) (in Queensland it also suffices that a person who is not a permanent resident of Australia has been ordinarily resident in Australia for at least 3 years immediately before the person makes the first request. In addition, exemptions from Australian residency can be granted by the chief executive under certain circumstances).

13 Vic VAD Act s 9(1)(a); WA VAD Act s 16(1)(a); Tas VAD Act s 10(1)(a); SA VAD Act s 26(1)(a); Qld VAD Act s 10(1)(d).

14 Vic VAD Act ss 9(1)(c), 20(1)(a), (c)–(d), 29(1)(a), (c)–(d); WA VAD Act ss 6(2), 16(1)(d), (f); Tas VAD Act ss 12, 13, 53; SA VAD Act s 26(1)(c); Qld VAD Act s 10(1)(b). That the request is enduring is per se no eligibility criterion in Victoria, Tasmania, South Australia and Queensland. However, in Victoria and South Australia the practitioners must each be satisfied that the person’s request ‘is enduring’ in the context of their eligibility assessment: Vic VAD Act ss 20(1)(d); 29(1)(d); SA VAD Act ss 38(1)(d); 47(1)(d). In contrast, in Western Australia, this is one of the eligibility criteria proper: WA VAD Act s 16(1)(f). The term, ‘enduring’ does not feature in the Tasmanian or Queensland Acts.

15 Parliament of Victoria, ‘Inquiry into End of Life Choices: Final Report’ (Report, Legal and Social Issues Committee, Victoria 2016) 8.64.

16 ibid.

17 Victorian State Government, ‘Ministerial Advisory Panel on Voluntary Assisted Dying: Final Report’ (Report, Health and Human Services Victoria 2017) 72.

18 ibid 73.

19 Gavin Jennings MLC, Parliament of Victoria Legislative Council Deb 16 November 2017, 6097 <www.parliament.vic.gov.au/images/stories/daily-hansard/Council_2017/Council_Daily_Extract_Thursday_16_November_2017_from_Book_19.pdf> accessed 1 August 2022.

20 See ibid 6097–98.

21 Department of Health, ‘Ministerial Expert Panel on Voluntary Assisted Dying: Final Report’ (Western Australia, 2019) 39 <https://ww2.health.wa.gov.au/~/media/Files/Corporate/general-documents/Voluntary-assisted-dying/PDF/voluntary-assisted-dying-final-report.pdf> accessed 1 August 2022.

22 Roger Cook, Western Australia Parliament Legislative Assembly Deb, 7 August 2019, 5137 <www.parliament.wa.gov.au/Hansard/hansard.nsf/0/6AC79977D5A9F91448258506002CF496/$file/A40%20S1%2020190807%20All.pdf> accessed 1 August 2022.

23 End of Life Choices (Voluntary Assisted Dying) Bill 2020 (Tas) cll 5, 9(1)(e) (in the version it was introduced).

24 Ruth Forrest, Tasmania Parliament Legislative Council Deb, 13 October 2020, 53 <www.parliament.tas.gov.au/lc/proceedings/2020/LCDaily13October2020.html> accessed 1 August 2022: ‘When you speak to members of the community, they are very clear this is what they are talking about. They are talking about assisting a person die who is actively dying, not someone who may live two, three, four or five years hence’.

25 Steven Marshall, Voluntary Assisted Dying Bill: Second Reading Speech, South Australia Parliament House of Assembly Deb, 26 May 2021 <http://hansardpublic.parliament.sa.gov.au/Pages/HansardResult.aspx#/docid/HANSARD-11-41378> accessed 1 August 2022: ‘I therefore believe that South Australia can have confidence in joining other states in enacting a model law for voluntary assisted dying. Such a model law includes strict eligibility and approval conditions. Those eligible must be at least 18 years of age; have six months or less to live, or 12 months in cases of neurodegenerative conditions; suffer to an intolerable degree … ’.

26 In 2020, the Queensland Parliament Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, tasked with ‘seeking Queensland’s view on the desirability of a voluntary assisted dying scheme’ recommended that VAD laws should not contain ‘precise timeframes for a person’s anticipated date of death within which voluntary assisted dying may be accessed due to the complex, subjective and unpredictable nature of the prognosis of terminal illness’. See Queensland Parliamentary Committee on Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, ‘Voluntary Assisted Dying: Report 34’ (56th Parliament, March 2020) 120 <https://documents.parliament.qld.gov.au/TableOffice/TabledPapers/2020/5620T490.pdf> accessed 1 August 2022.

27 Queensland Law Reform Commission, ‘A Legal Framework for Voluntary Assisted Dying’ (Report No 79, 2021) 87 <www.qlrc.qld.gov.au/__data/assets/pdf_file/0020/681131/qlrc-report-79-a-legal-framework-for-voluntary-assisted-dying.pdf> accessed 1 August 2022.

28 ibid 111.

29 Death with Dignity Act (Oregon) 127.800 §1.01(12).

30 Victorian Ministerial Advisory Panel on Voluntary Assisted Dying (n 17) 72.

31 Currently, this includes Victoria and Queensland. While the ACT has human rights legislation it currently does not have VAD laws.

32 While other eligibility restrictions including, for example, residency and age requirements, may also limit individuals’ rights to assisted dying analysing the human rights’ compliance of each restriction goes beyond the scope of this article. This article focuses exclusively on the timeframe until death requirement which has proven contentious in debates in Australia concerning the introduction of VAD laws and has led to recent law reform in Canada in this space as discussed below.

33 Human Rights Act 2019 (Qld) Preamble 3.

34 ‘Right to Life’ (Queensland Human Rights Commission) <www.qhrc.qld.gov.au/your-rights/human-rights-law/right-to-life> accessed 1 August 2022.

35 For analysis on the importance of the right to life, see Danuta Mendelson and Mirko Bagaric, ‘Assisted Suicide Through the Prism of the Right to Life’ (2013) 36(5) International Journal of Law and Psychiatry 406.

36 Pretty v United Kingdom (2002) App no 2346/02 [40].

37 Fleming v Ireland [2013] IESC 19 [143]–[146].

38 Elizabeth Wicks, ‘The Meaning of “Life”: Dignity and the Right to Life in International Human Rights Treaties’ (2012) 12(2) Human Rights Law Review 199, 218.

39 See, for example, Stevie Martin, ‘Assisted Suicide and the European Convention on Human Rights: A Critical Analysis of the Case Law’ (2018) 21(1) Trinity College Law Review 244.

40 Stevie Martin, Assisted Suicide and the European Convention on Human Rights (Routledge 2021) 47.

41 Carter v Canada (Attorney General) 2015 SCC 5.

42 ibid [57]–[58].

43 ibid [62].

44 Seales v Attorney-General [2015] NZHC 1239.

45 ibid [12], [162], [166] while ultimately holding that the right was not breached. This right is contained in the New Zealand Bill of Rights Act 1990 s 8.

46 Verfassungsgerichtshof (Austrian Constitutional Court) Judgment G 139/2019-71 (11 December 2020) 80, [74].

47 Truchon and Gladu v Attorney General of Canada and Attorney General of Quebec 2019 QCCS 3792. The Canadian assisted dying legislation required that natural death must be ‘reasonably foreseeable’ to obtain access to the assisted dying scheme.

48 ibid [521].

49 ibid [522].

50 Alistair Pound and Kylie Evans, Annotated Victorian Charter of Rights (Lawbook Co 2019) 89.

51 ‘Right to Liberty and Security of Person’ (Queensland Human Rights Commission) <www.qhrc.qld.gov.au/your-rights/human-rights-law/right-to-liberty-and-security-of-person> accessed 1 August 2022.

52 See Human Right Bill 2018 (Qld) Explanatory Notes, 4.

53 Queensland Minister for Health and Ambulance Services, ‘Voluntary Assisted Dying Bill 2021 Statement of Compatibility’ (prepared in accordance with Part 3 of the Human Rights Act 2019) 9 <https://documents.parliament.qld.gov.au/TableOffice/TabledPapers/2021/5721T709.pdf> accessed 1 August 2022 (‘Compatibility Statement’).

54 Blencoe v. British Columbia (Human Rights Commission) 2000 SCC 44, [54] cited in Carter (n 41) [64].

55 Rodriguez v. British Columbia (Attorney General) [1993] 3 SCR 519 cited in Carter (n 41) [64].

56 Carter (n 41) [66].

57 ibid.

58 Truchon (n 47) [533].

59 ibid.

60 ‘Your Right to Recognition and Equality Before the Law’ (Queensland Human Rights Commission) <www.qhrc.qld.gov.au/your-rights/human-rights-law/your-right-to-recognition-and-equality-before-the-law> accessed 22 August 2022.

61 ibid.

62 ibid.

63 David Lepofsky, ‘Carter v Canada (Attorney-General), The Constitutional Attack on Canada’s Ban on Assisted Dying: Missing an Obvious Chance to Rule on the Charter’s Disability Equality Guarantee’ (2016) 76 The Supreme Court Law Review 89, 90–91.

64 Truchon (n 47) [665].

65 ibid [663].

66 Human Rights Act 2019 (Qld) s 13(2)(b).

67 Qld VAD Act s 3a.

68 ibid (Qld) s 3c(ii).

69 Voluntary Assisted Dying Bill 2021 (Qld), Explanatory Notes 6.

70 See Truchon (n 47) [568].

71 Queensland Law Reform Commission (n 27) 111 [7.146].

72 Queensland Parliament Health and Environment Committee, ‘Voluntary Assisted Dying Bill 2021’ (Report no 10, 2021) 152.

73 Annastacia Palaszczuk, Voluntary Assisted Dying Legislation: Introduction, Queensland Parliament Deb, 25 May 2021, 1512 <https://documents.parliament.qld.gov.au/events/han/2021/2021_05_25_WEEKLY.PDF> accessed 1 August 2022.

74 In Truchon, the Court did not accept the argument, as advanced by the Attorney General, that the objective of the section in Canadian assisted dying law requiring death to be reasonably foreseeable was to affirm the importance of preventing suicide. The Court found this objective overbroad and instead a vehicle ‘to affirm social values or stakes’: Truchon (n 47) [555].

75 See Human Rights Act 2019 (Qld) s 13(2)(c).

76 See Human Rights Act 2019 (Qld) s13(2)(d).

77 Carter (n 41) [74]–[78].

78 ibid [105].

79 Truchon (n 47) [536]–[599].

80 ibid [601].

81 ibid [617]–[618].

82 ibid [619].

83 Criminal Code 1985 (Canada) s 241.2(2)(c).

84 ibid s 241.2 (3.1)(e.1).

85 ibid s 241.2 (3.1)(i).

86 Seales (n 44) [132].

87 ibid [179].

88 ibid [184].

89 See also Compatibility Statement (n 53) 10.

90 Truchon (n 47) [17].

91 ibid [19]–[21].

92 ibid [23]–[25].

93 ibid [28]–[29].

94 ibid [35].

95 ibid [34].

96 ibid [36].

97 ibid [578].

98 ibid [584].

99 The Court in Truchon found that the timeframe restriction until death infringed upon their right to life, liberty and security of the person as protected by section 7 of the Canadian Charter of Rights and Freedoms 1982 which was not justified under section 1 of the Charter; see ibid [638]. Moreover, the Court saw section 15 of the Charter guaranteeing equal treatment violated which was also not justified under section 1 of the Charter; see ibid [690].

100 Lindy Willmott and Ben White, ‘Assisted Dying in Australia: A Values-based Model for Reform’ in Ian Freckelton and Kerry Petersen (eds), Tensions and Traumas in Health Law (The Federation Press 2017) 504.

101 Carter (n 41) [85].

102 ibid [86].

103 Seales (n 44).

104 ibid [186].

105 Benny Chan and Margaret Somerville, ‘Converting the “Right to Life” to the “Right to Physician-Assisted Suicide and Euthanasia”: An Analysis of Carter v Canada (Attorney General), Supreme Court of Canada’ (2016) 24(2) Medical Law Review 143, 165.

106 Seales (n 44) [184]–[185].

107 It should be noted that Carter held that the object of the complete ban of assisted dying in Canada could not be to preserve life as this ‘object of the prohibition on physician-assisted dying as the preservation of life has the potential to short-circuit the analysis’ as the object was stated too broadly. The Court noted that where an object was ‘stated broadly as “the preservation of life”, it becomes difficult to say that the means used to further it are overbroad or grossly disproportionate’. It concluded that the ‘outcome is to this extent foreordained’ Carter (n 41) [77]. For critical analysis of the New Zealand Court’s wide interpretation of the law’s purpose in Seales see Stevie Martin, ‘A Human Rights Perspective of Assisted Suicide: Accounting for Disparate Jurisprudence’ (2017) 26(1) Medical Law Review 98, 112–14.

108 Truchon (n 47) [573].

109 ibid.

110 ibid [574].

111 Qld VAD Act s 10(1)(a)(i).

112 Ben White and Lindy Willmott, ‘A Model Voluntary Assisted Dying Bill’ (2019) 7(2) Griffith Journal of Law and Human Dignity 1, 8.

113 Queensland Law Reform Commission (n 27) 112.

114 Queensland Parliament Health and Environment Committee (n 72) 157.

115 Willmott and White, ‘Assisted Dying in Australia: A Values-based Model for Reform’ (n 100) 503.

116 Compatibility Statement (n 53) 11.

117 ibid.

Additional information

Notes on contributors

Kerstin Braun

Kerstin Braun is an Associate Professor in the School of Law and Justice at the University of Southern Queensland, Australia, where she is involved in teaching criminal law and procedure. Her research interests lie in the area of criminal law and procedure, comparative law and human rights law.