Depending on the proponent's agenda, euthanasia has various descriptions, ranging from the merciful extermination of life, to mercy killing, to hastening death, to murder.3 The Oxford Dictionary defines euthanasia as "the bringing about of a gentle, easy death in cases of incurable and painful disease." Other sources describe "the act or practice of euthanizing persons suffering from incurable and distressing disease as an act of mercy. Active euthanasia is best described as performing a positive action that causes the death of the patient. Passive euthanasia is best defined as the failure to to perform an action that would continue the patient's life.
The meaning of the two forms of euthanasia is that they are distinguished by their guilt. The Hippocratic Oath dictates the personal virtues a doctor must have as well as the professional ethics of compassion, knowledge and dedication to the welfare of the patient. Criminal liability for euthanasia is determined by Part VIII of the Crimes Act 1961 which sets out crimes against the person.
Proceedings based on Part VIII of the Crimes Act 1961 relating to euthanasia are extremely rare.
V THE MEDICAL APPROACH TO AID-IN-DYING
Even from these brief cases, however, we can see that there are clear violations of the criminal law where light sentencing significantly devalues the stated seriousness of the crime. When the first two purposes are no longer sustainable, the doctor is still under an obligation to ensure the well-being of the patient through the relief of pain. As the lines between legal pain relief and illegal euthanasia blur, protection is offered to the medical practitioner in the form of two different concepts; that of "good medical practice" and the doctrine of "double effect.".
Adherence to "good medical practice" improves the criminal culpability of doctors in passive euthanasia situations. With respect to decisions made in the management of death, physicians have a "lawful justification" to withdraw life support systems and withhold treatment when these acts are consistent with "good medical practice. Good medical practice describes situations where the physician's decision to withdraw or withhold treatment is in good faith and in the best interests of the patient, the decision is one that would "command general approval within the medical profession," the patient's family agrees with the decision and gives their consent , and the physician's decision is endorsed by a recognized ethic 32 Acceptance by the medical profession of the practice of passive euthanasia has led some commentators to describe it as a “de facto recognition of the right to die.
The concept of lawful justification through good medical practice does not extend to include active euthanasia. Hastening death by physicians through an affirmative act is traditionally protected by the doctrine of double effect. Doctors have a legal justification to withdraw treatment when the medical care they provide no longer serves any therapeutic purpose for the patient.
As long as the purpose of the action is to alleviate suffering, it does not matter that the resulting effect of the action may be to shorten life. A double effect is often achieved by gradually increasing the dose of a particular drug, which becomes lethal in high concentrations. The primary result of such action must be the relief of otherwise excruciating pain, notwithstanding that death may be a foreseeable secondary result.
VI LEGISLATIVE PROBLEMS
Another concern is the difficulty of ensuring that patient consent is free and complete. In practice, the patients seeking euthanasia are likely to be weakened by the course of their illness, and while still "competent" in the strictest sense of the word, they should not morally be allowed to put an end to make their life. Legislation should provide sufficient safeguards to ensure that the validity of consent is tested throughout the pathway to euthanasia, so that it is a genuine and lasting desire to hasten the end of life.
34;37 Since it has been claimed that consciousness is what makes life valuable, it is clear that the need for euthanasia may still exist in some situations.38 It is further recognized that in a very small number of cases the nature of the disease is such that it is not possible to relieve a patient's pain at all. The concern about the overall cost to society is certainly valid and to reduce the threat to society the law should be drafted in the strongest possible terms of voluntariness. On the other side of the debate are arguments favoring the legislation of euthanasia.
These arise from the current situation where it is said that euthanasia is already practiced in several forms. Patients are traditionally "uncomplaining, dependent and vulnerable - the very origin of the name implies long suffering and quiet submission". It is accepted that economic reasons as well as empowerment are behind this linguistic change. are the application of the doctrine of double effect, the protection of good medical practice, and the patient's statutory right to refuse treatment, even when it may hasten death.48 The fact remains that in express legal terms, euthanasia is illegal.
It would not be an ordinary application of human rights law to give disabled people the same right to choose death that able-bodied people enjoy. It follows that the right to die with dignity should be protected as well as any other aspect of the right to life. The function of law is to protect and improve the lives of citizens; not to oppress them without reason.
VII LEGISLATIVE SOLUTIONS
This was emphasized in a huge advertising campaign by the Catholic Church to convince the public of the undesirability of the legislation. 55 The issues of the lack of safeguards were remedied the following year when a California Death with Dignity Act was proposed, although again the bill failed to pass. The Dutch response to this difficult issue has been praised by many for its enlightened response to patient autonomy, while still demonstrating a commitment to protecting the vulnerable.
The law, entitled the Rights of the Terminally Ill Act 1995, gave immunity to doctors who, in accordance with the statute, complied with their patient's request to end their life. 59M Platform Voluntary Euthanasia Society Public Seminar on the Rights of the Terminally Ill Act 1995, Wellington, 26 May 1997. It is significant to note that the successful passage of the Act was based on many social factors unique to this situation.
It was held that the power of the Legislative Assembly of the Northern Territory did not extend to:61. The decision of the Commonwealth Parliament to repeal the Act resulted in a renewed push for statehood by many citizens of the Northern Territory.62 It is incredible to think that one issue could have such a far-reaching effect. The first is important because it consists of judicial recognition of the right to die by the United States Court of Appeals.63.
A group of doctors and their terminally ill patients had challenged the constitutionality of a Washington statute that banned any person who assists another to commit suicide, over physician-assisted suicide of the terminally ill. It compared the schedule of 60 The Rights of the Terminally Ill Act 1995 which describes the "(request) for assistance to end my life in a humane and dignified manner". This was based on an extension of the constitutionally guaranteed right to refuse life support treatment, as established by the Supreme Court of the United States in Cruzan v Director, Missouri Department of Health.
VIII THE PROSPECTS OF REFORM IN NEW ZEALAND
The new bill is regarded by the New Zealand Voluntary Euthanasia Association as a model to follow as it is clear, concise and drafted in plain English. The Society has provided copies of the legislators to New Zealand MPs who have indicated their willingness to support the issue, with a view to introducing similar legislation in this country. Surely the very purpose of representative democracy is that where the fully informed will of the people can be established, it should be carried out, so long as the resulting law is in the best interest of society.
It seems that Parliament's dislike of the euthanasia issue leads to the abdication of responsibility in this case.
IX CONCLUSION
It seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament. The Judges' function in this area of law should be to apply the principles that society adopts through the democratic process, not to impose their standards on society. If Parliament fails to act, judge-made law will necessarily, by a gradual and uncertain process, provide a legal answer to each new question as it arises.
X BIBLIOGRAPHY
L Gormalisht "Why the House of Lords Select Committee on Medical Ethics Unanimously Rejected Euthanasia Legislation" (Proceedings of a workshop at St Vincent's Hospital, Sydney, 10 November 1995. SAM McLean "To Let Die or Assist Dying: How to patient law answers in Persistent Vegetative State Law in Context 3. 34;Medical consent: Indiana Supreme Court rules Family may withhold treatment for patient who is never competent in persistent vegetative state HLR 1426.
G Wehrle "The Death with Dignity Bill: The Ethics of the Bill and the Parliamentary Process waardeur dit verslaan is VUW Honneurs Seminaar. D Cole Medical Practice In New Zealand: A Guide to Doctors Entering Practice (Medical Council ofNew Zealand, Wellington, 1995) B Jennett "Die aanhoudende vegetatiewe toestand: mediese, etiese en wetlike kwessies" in A Grubb (red) Choices and Decisions in Health Care (John Wiley & Sons, Chichester, 1993).
34; Life and death struggles: Should a brain-dead woman be kept on life support to save her unborn child?" The Listener, Wellington, New Zealand, 10 February.
LIBRAR
