By Neerav Srivastava. I am grateful to Prof. Kevin Bell and Ms Andrea Olivares Jones at the Castan Centre for their advice and feedback.
A right to assisted dying is a scary proposition. It means that a State is obliged to help someone die. Such a right challenges traditions, values, and beliefs. Societies are living organisms, built on continuity, and the sanctity of human life.
There are circumstances, however, where an assisted dying preserves the dignity and autonomy of an individual. This piece argues, first, that there is a limited right to die (the right) as an aspect of the right to privacy at section 13(a) of the Charter of Human Rights And Responsibilities Act 2006 (Vic) (‘Charter’). Second, that the Voluntary Assisted Dying Act 2017 (Vic) (‘VADA’) is inconsistent with the right because it fails to provide for an exceptional residual judicial discretion to permit an assisted dying.
The need for a right to die
While it is hoped no one is ever in the position of wanting an assisted death, the reality is that this is not always the case.
In a harrowing example, during the 1999 Japanese Tokaimura nuclear accident, Mr Ouchi was exposed to considerable radiation. On arrival at the hospital, he was described as ‘a husk of a man’. He was ‘practically skin-less’, had almost zero white blood cells, organ failures and a destroyed immune system. After a week, Mr Ouchi said that ‘he can’t take it anymore’ and that he was not a guinea pig. He was kept alive for 83 days; allegedly against his will and because his survival was a matter of national pride. To be clear, these are allegations.
Closer to home, the Victorian Inquiry that led to the enactment of VADA reported on a number of cases involving spouses who had helped their partner die. One case involved a woman who had large tumours, and was unable to wash, dress or feed herself. She asked her husband to help her end her life. He complied, even though it was unlawful, and was convicted of aiding and abetting a suicide. The sentencing judge observed that the husband’s love for his wife was absolute. Tragic circumstances led to tragic consequences.
While a right to die is deeply troubling, the absence of such a right is also troubling. There are exceptional circumstances where the desire for assisted dying is explicable. Further, it would be impossible to exhaustively identify every scenario when there is a genuine and understandable desire for an assisted death.
The spouse cases suggest that if the State does not permit assisted dying, it will still occur. Illegality amplifies the tragedy. A right to die is also a form of protection against the State keeping us alive for its own purposes as was alleged occurred with Mr Ouchi.
The starting point of the argument is understanding the technical meaning of a ‘right’. ‘Rights’ relates to the conduct of another. For human ‘rights’, there is a correlative duty owed by the State. The right to life means that the State owes a duty to protect that right through the laws it passes and its actions. ‘Rights’ can be distinguished from ‘liberties’. A mere ‘liberty’ is not relational and does not impose obligations on anybody else.
If there is a ‘right’ to die, the State owes duties in respect of that right. If it was an absolute right to die, then anybody could insist that the State help them die. This piece takes the position that assisted dying should be exceptional.
However, if there is a mere liberty to die then the State does not owe individuals any obligations. Legally, the State could ignore do not resuscitate (DNR) instructions, keep us alive for its own purposes, and act contrary to our own wishes, autonomy, and dignity.
As for a right to assisted dying in certain circumstances, cases in the US, EU, UK, Canada, and India support a conclusion that it exists as an aspect of privacy, autonomy, and dignity. Similarly, in Victoria, the Minister for Health acknowledged that the right to privacy was engaged by the bill that became VADA.
Right to die as aspect of right to privacy
Hence, a mere liberty to die is hard to reconcile with the right to privacy at s 13(a) of the Charter, a right of considerable amplitude. Privacy has been held to include the rights to autonomy, dignity, be free from unwarranted government interference, be secluded, and sexual orientation. Privacy protects the exercise of self-determination. With respect to dying, cases have held that privacy includes the right to:
- decide our own medical treatment, a right also recognised by the Charter, VADA and s 7 of the Medical Treatment Planning And Decisions Act 2016 (Vic).
- a natural death; and
- to die in private.
So authorities are to the effect that there is a right to die as an aspect of the right to privacy. Having said that, the authorities do not speak with one voice when it comes to defining what is the right. It is submitted that it is the right: the right to die with dignity and autonomy.
The right is a principled approach that reconciles existing legal positions:
- it is only in exceptional circumstances, when a person’s dignity and autonomy are genuinely compromised, that the right is agitated, and the State owes a duty to assist a person die.
- the State is not under a general duty to assist anyone die.
- the right is consistent with the established rights to choose our own (and refuse) medical treatment, to issue DNR instructions, to die a natural death, and to die in private. An individual’s response to a grievous and irremediable medical condition, or having a say in how they die, is a matter critical to our dignity and autonomy.
- being principle-based, the right does not draw inconsistent distinctions between passive and active euthanasia.
- the right is consistent with there being a general liberty right, to die. While, in general, the State does not have to assist dying to stand in the way by recriminalising suicide would agitate the right. Recriminalising suicide would be inconsistent with our autonomy and the individual would suffer the indignity of being branded a criminal.
Assisted dying under VADA
Assuming that the right exists under the Charter, the remaining question is whether the assisted dying regime in VADA is consistent with it.
Under s 9 of VADA, the State will only assist a person die if:
- they are above 18;
- they have decision-making capacity;
- they have an incurable condition, that is so advanced that they are not expected to live for more than 6 months;
- the suffering is intolerable; and
- cannot be relieved.
To assist someone die when they do not meet the VADA criteria is to commit an offence, such as aiding and abetting a suicide. VADA deals with a deeply sensitive matter and insisting on strict criteria is understandable.
However, it leads to anomalous consequences:
VADA is a 10% solution. If the Victorian Inquiry’s figures as to the demographics of whom commits suicide is indicative of future suicides, then 90% of the people contemplating ending their life will be ineligible under VADA.
A person who is ineligible confronts a cruel choice. The person can take their own life prematurely, often by violent means, or suffer until they die from natural causes. ‘People do not want to die slowly, piece by piece or be wracked with pain.’
As Lord Neuberger observed, ineligibility may lead to an early suicide, rather than prevent it, and so be counterproductive.
The 6-month time limit is understandable but produces a curious result. If a person will suffer intolerably for weeks, they are eligible but not if it is for a year.
Modern medicine can identify when intolerable suffering is inevitable. As a matter of dignity and autonomy some would not choose to wait. This is consistent with the Netherlands’s approach.
It is not clear if debilitating old age meet the criteria.
Likewise, the criteria that the person be at least 18 is understandable. An adolescent may not have sufficient decision-making capacity. However, it is disproportionate. A 17-year-old, suffering intolerably, and for whom death is imminent is ineligible. As has already been done for DNR, procedures can be put in place to assess an adolescent’s capacity.
Hence, VADA in combination with criminal laws limit the right and lead to anomalous and arbitrary consequences. It is right that Victoria has a general ban on assisted dying and that State-sanctioned assisted dying is exceptional. The problem with VADA is that it is so tightly strung that it becomes hard to rationalise.
Put simply, the VADA criteria are not the only exceptional circumstances where the right is agitated. In the UK, Baroness Hale asked herself why the UK blanket ban on assisted suicide was unconstitutional. She answered: ‘Not because it contains a general prohibition … [but] because it fails to admit of any exceptions.’If there was an exceptional residual judicial discretion to permit an assisted dying, it may help VADA be consistent with the Charter. It may also help in tragic circumstances and not leave people out in the cold.
Neerav Srivastava is a PhD student specialising in law and technology. His PhD is on digital matching and the legal responsibilities of a platform, such as Uber, Tinder, and AirBnB, to users. Neerav has published articles in respected journals and books and has been cited in court with approval.