In February 2012, a Queensland Court convicted Mr Merin Nielsen
of aiding the suicide of 76 year old, Mr Frank Ward. Mr Nielsen
procured the drug Nembutal (a barbiturate anaesthetic that is
frequently used in euthanasia) in Mexico and provided it to Mr
Ward. On 20 June 2009, Mr Ward died after taking the Nembutal.
There were indications that Mr Ward had pre-existing health
problems and endorsed euthanasia. Mr Ward had suffered a minor
stroke in 2007. Mr Nielsen asserted at his trial that Mr Ward had
another stroke on 11 June 2009. Further according to Justice Dalton
"[t]here is no doubt...that [Mr] Ward wished to take his
own life...where he was no longer
independent..."1. In spite of this finding,
and with Mr Nielsen pleading Not Guilty, other factors were
relevant in the finding against Mr Nielsen. Notably, Mr Ward had
not had his condition diagnosed by a doctor. He had also changed
his will, naming Mr Nielsen the sole beneficiary2.
Mr Nielsen was sentenced to 3 years jail with a non parole
period of 6 months.
The case raises (again) the ongoing euthanasia debate in
Australia. Euthanasia is currently illegal in Australia. In spite
of this, Australia has had an eventful euthanasia history. In 1995,
the Northern Territory was one of the first places in the world to
legalise euthanasia with the enactment of the Rights of the
Terminally Ill Act 1995 (NT). Under the legislation, 3 people
were assisted with suicide with the help of Dr Philip Nitschke. The
legislation was subsequently voided by the Commonwealth Government
soon after its enactment.
Euthanasia was once again raised in 2009 in the Supreme Court of
Western Australia case of Brightwater Care Group (Inc) v
Rossiter [2009] WASC229. In that case, the previously active,
Mr Rossiter (49 years of age) was rendered a quadriplegic after 3
independent incidents including a car accident3. Mr
Rossiter had no prospect of physical improvement. Mr
Rossiter's nutrition to survive was provided through a
percutaneous endoscopic gastrostomy tube (PEG) inserted into his
stomach via surgical intervention.
Mr Rossiter sought to cease the administration of nutrition via
the PEG, an action that would lead to his death. The Court was
required to determine the legal obligations of Brightwater in these
circumstances. The Court found that if Mr Rossiter requested the
cessation of nutrition, Brightwater could not lawfully continue
administering nutrition unless the direction was revoked by Mr
Rossiter. The Court also concluded that providing Mr Rossiter had
made an informed decision, persons working at Brightwater would not
be held criminally responsible for the cessation of nutrition. The
same result will not necessarily be reached in other states with
differing criminal laws.
More recently, a euthanasia bill entitled, the Voluntary
Euthanasia Bill 2012 (the Bill) has been put to the lower house of
the South Australian Parliament, by the Hon Bob Such (an
independent member of Parliament). The Bill received its second
reading on 1 March 2012. If the Bill were to pass:
"An adult person of sound mind who is terminally ill
may make a request for voluntary
euthanasia."4
The Bill sets out a process by which voluntary euthanasia could
be legally undertaken by a person meeting the above criteria. Under
the Bill, the administration and prescribing of drugs to end life
and the withholding and withdrawing of medical treatment to end
life would be permissible. Further, a medical practitioner or a
person who assists in voluntary euthanasia "...incurs no
civil or criminal liability...".5
There is limited information on the support for the Bill.
However, this is not the first time the South Australian Parliament
has considered and failed to implement proposed euthanasia
legislation.
Euthanasia in Queensland is currently illegal. Section 282A of
the Criminal Code Act 1899 (Qld) (the Criminal Code)
provides guidance on the provision of palliative care in the State.
The section goes on to set out that nothing in that section
justifies or excuses a palliative care provider aiding another
person to kill himself or herself.
Euthanasia will continue to be debated and considered within our
society. This is especially the case given our ageing population
and our well advanced medical technology.
Footnotes
1 The Queen v Merin Nielsen [2012] QSC 29
[1-7] [1-13] 2 Ibid [1-10] 3 Brightwater Care Group (Inc) v Rossiter [2009]
WASC229 [6] 4 Ibid s 13 5 Voluntary Euthanasia Bill 2012 (SA) s 5
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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