Euthanasia. When and where is it right to die?

In the early hours of 25 May 1995, Australia's Northern Territory passed the Rights of the Terminally Ill Act 1996 (NT), thus becoming the first jurisdiction in the world to permit a doctor to end the life of a terminally ill patient at the patient's request. The Act came into force on 1 July 1996.

On Sunday 22 September 1996, Bob Dent, terminally ill with prostate cancer, looked at the screen of a laptop computer placed by his bedside in Darwin. It asked whether he was ready to die. He smiled, touched the keyboard to give the go-ahead, and received a lethal dose of barbiturates and muscle relaxants, making him the first person to kill himself legally. Dent, 66, a retired carpenter, died with his wife and Dr Philip Nitschke by his side.

Nitschke has long been a euthanasia campaigner, and he connected the intravenous tubes that poured the lethal drugs into Dent's bloodstream when the patient indicated he was certain he was ready to die. The machine Nitschke used looks like a standard portable intravenous unit, but its operation is controlled by a laptop computer which has software that asks a series of questions. The patient answers by tapping the appropriate key on the keyboard. The penultimate question asks the patient if he understands that a lethal dose will be administered by the machine in 15 seconds if he answers “yes” to the next question. It then asks if he is ready to die.

The Northern Territory Act has caused a furore in Australia and internationally, engendering both extensive criticism and substantial support from politicians, healthcare professionals, religious groups, pro-life and pro-choice pressure groups, academics, the media and members of the general public.

The Act was challenged in the Northern Territory Supreme Court in June 1996. The plaintiffs were the president of the Northern Territory Branch of the Australian Medical Association, Dr Chris Wake, and an Aboriginal leader, the Reverend Dr Djiniyini Gondarra – the aboriginal groups apparently regard inducing death as a form of witchcraft. They argued that the law breached the right to life guaranteed in the Australian constitution. It was also argued that the Northern Territory did not have the power to make life-and-death decisions. However, the court upheld the Act by a majority of two to one.

Several subsequent attempts to repeal the Act by amending the legislation have failed.

Then, on 9 September 1996, the Euthanasia Laws Bill was introduced into the House of Representatives as a private member's bill. Its purpose was to prevent the Northern Territory, the Australian Capital Territory and Norfolk Island from passing laws permitting euthanasia. The house passed the Bill by 88 votes to 35 on 10 December 1996. But the Bill still needed to be passed by the Senate to become law. On 25 March 1997, the Senate voted 38 to 33 in favour of the Bill, thereby bringing the nine months of lawful euthanasia in the Northern Territory to an end.

By then, three other people had followed Bob Dent in committing assisted suicide. The importance of the issue is underlined by the fact that the Federal Government was breaking constitutional convention by interfering in the territory's affairs. But through its actions the status quo has prevailed. So where and when might similar euthanasia laws be enacted?

In the USA, voluntary euthanasia legislation in Oregon was approved by a referendum in 1995, but a federal court blocked it and it never came into effect. Similar measures were defeated in Washington in 1991 and California in 1992.

Once again the Netherlands has the most liberal euthanasia laws in the world. While euthanasia is technically illegal, lawmakers approved guidelines in 1993 which allowed doctors to help patients commit suicide under certain conditions.

In the UK, the Law Commission has not made any proposals on the subject of euthanasia alone. In February 1995, it reported on the law relating to the way decisions may be made on behalf of mentally incapacitated adults. It recommended that a draft Mental Incapacity Bill should specify that a doctor does not have legal authority to administer medical treatment to a mentally incapacitated person if the person concerned has made an “advanced refusal of treatment” that applies to the proposed treatment.

It is clear that the Law Commission was considering a situation far removed from that of Bob Dent and people like him. However, in January 1996, the Government decided not to legislate on the basis of the recommendations, appreciating that “this is an important and sensitive subject raising moral and ethical issues on which many people will have strong personal views”. Currently, there is no prospect of future legislation either on the limited area of mental incapacity or on the wider and potentially more thorny topic of euthanasia.

The lack of legislation keeps judges in the firing line when difficult decisions have to be made. On 21 March 1997, Sir Stephen Brown, President of the Family Division, ruled that a severely brain-damaged 29-year-old woman (“Miss D”), who had been in a coma for 18 months, but whose condition fell short of a permanent vegetative state, should not have a feeding tube reinserted into her body.

This would effectively mean that she would be cared for by her family at home in the last days of her life when she would be starving to death. The president believed that “the time for merciful relief has arrived” because there was no possibility of meaningful life continuing for Miss D.

As a result, anti-euthanasia groups were swift to criticise the “barbaric practice” of cutting off life support systems to brain-damaged patients. Given this response, and the prevailing and conflicting pressure groups which place euthanasia on the political agenda and which are so quick to criticise the judiciary, it is perhaps unsurprising that euthanasia legislation is unlikely to feature in the next Queen's Speech.