Suicide, refusing treatment and assisted suicide: the problem of harm and the necessity defence

1. Suicide, refusing treatment and assisted suicide: the problem of harm and the necessity defence Cameron Stewart

2. The problem • People are living longer but getting sicker • Paramedicine and intensive care have been spectacularly successful • People may remain alive but with high levels of dependency and medical intervention which they find uncomfortable • They may wish to end their lives • They are permitted to refuse treatment and die • But how much help can we give them?

3. The argument • There is a public interest against suicide (but it is not illegal) • It is a crime to assist a suicide • Some refusals of treatment are suicidal • Health professionals (and others) should be protected from prosecution by: • Legislative reform that clarifies when it is ok to help someone die (minimally or broadly) • The recognition of a defence of necessity to assisted suicide

4. Brightwater Care Group Ltd v Rossiter[2009] WASC 229 The right to refuse treatment and receive palliative care

5. What is Suicide? • The felo de se • Punishment and reform • Assisted suicide • Intention? Specific and/or recklessness • Causation? Acts and omissions • Difference between suicide and right to die?

6. H LTD v J [2010] SASC 176 • J was in her 70s and lived in a high dependaency nursing home run by H • She had post polio syndrome and Type 1 diabetes • Expressed her wish to die • She refused insulin and food but wished for palliative care • No duty to feed oneself

7. H LTD v J [2010] SASC 176 • [Judge accepted the distinction ] between suicide and an individual merely speeding “the natural and inevitable part of life known as death” by refusing food and water. • It appears to me that the common law regarded as “self murder” only those suicides which were the consequence of acts or omissions which if directed to another would amount to murder.[53] If that is the basis on which the common law proceeded it is doubtful that self starvation is suicide. The common law recognised a duty, breach of which renders a death unlawful, in the case of a master not providing food to a servant.[54] A parent was also bound to provide for his or her child and a person supplied with sufficient food to properly care for the child of another is under a duty to support that child.[55] Similarly, a person who undertakes to provide necessaries for a person who is so aged and infirm that he is incapable of doing so for himself and if through his neglect to perform this undertaking death ensues, he is criminally responsible.[56]

8. What’s the difference? • State v McAfee/ Bouvia/McKay/Nancy B/Ms B Donaldson v Van De Kamp, Rodriguez, and Pretty Act and Omissions

9. A New Defence? • Necessity: • Avoid irreparable evil • No reasonable alternative • Acts must be reasonably proportionate to the evil avoided • Glanville Williams, Roger Magnusson, Glenys Williams, Rodney Syme and myself

10. Benefits of the Defence Approach • Doctrinal integrity preserved • The normative issues are not disguised and can properly be discussed • Creates a space for the discussion of proportionate acts • Greater certainty

11. Costs • Ideological divider is gone - a necessity defence requires consideration not rhetoric • Doctors might be uncomfortable • Slide into active voluntary euthanasia

12. Nicklinson v Ministry of Justice [2012] EWHC 304

13. Argument • A declaration that it would not be unlawful, on the grounds of necessity, for Mr Nicklinson 's GP, or another doctor, to terminate or assist the termination of Mr Nicklinson 's life.

14. Conclusions • Nicklinson should fail • Not proportionate response • The law would accept self-starvation couple with terminal sedation but not immediate death from euthanizing agent