There Are More Humane Ways To Die Than Starving

There are more humane ways to die than starving, Aug. 25, 2009.

The right to die has been recognised in a landmark decision by the Chief Justice of Western Australia, Wayne Martin. While the judge was at pains to say the case is not about doctors assisting patients to die, there is no doubt he has set an important precedent.

In permitting a person to starve to death, he has also opened a debate about whether people should be allowed legal access to more humane ways to die.

Christian Rossiter is a resident of the Brightwater Care Group in Perth. He came into their care late last year after becoming a quadriplegic following a road accident. There is no doubt about his ability to understand his condition and to make reasoned choices on his own behalf.

His fully functioning mind is trapped within a badly broken body.

As Rossiter told the court, he is "unable to undertake any basic human functions". He can make only a little foot movement and wriggle one finger, and is unable to eat or drink. Nutrition is provided to him through a tube inserted directly into his stomach.

He is neither terminally ill, nor is he dying. He could live for many more years in a state that he sees as a "living hell".

The case came to the Supreme Court of Western Australia because Rossiter told his carers to remove the feeding tube from his stomach so that he would starve to death. His carers took his request to court, fearful they could be charged with murder.

Australian law does not permit doctor-assisted euthanasia or otherwise positively recognise any right to die. The last attempt to do so was the Rights of the Terminally Ill Act, which was passed by the Northern Territory in 1995 but then overridden by the Commonwealth Parliament in 1997.

It might have been thought that the law of Western Australia did not permit Mr Rossiter to chose his death in this way. Its Criminal Code states carers must provide "the necessaries of life" to a person in their charge due to "age, sickness, mental impairment, detention, or any other cause". The carer is "held to have caused any consequences which result to the life or health of the other person by reason of any omission to perform that duty".

Western Australian law also states that a person cannot consent to their own death, and that any person who causes the death of another, even if indirectly, is deemed to have killed that person, and so can be convicted of murder.

Despite this, the Chief Justice held that the law permits Rossiter's carers to remove his feeding tube. The judge reached this conclusion by reading the Criminal Code in light of other fundamental principles. These were that a person of full age has the right to consent to or refuse medical treatment

and that, to quote the late United States Supreme Court judge, Benjamin Cardozo, there is a right of "every human being of adult years and sound mind to determine what shall be done with his own body".

The collision between these principles and the criminal law was resolved in favour of Rossiter. The carers were found only to have a duty to provide the necessities of life where a dependent person lacks the metal capacity to make decisions on their own behalf. The key fact was that: "Mr Rossiter lacks the physical capacity to control his own destiny but enjoys the mental capacity to make informed and insightful decisions in respect of his future treatment".

This meant Mr Rossiter's carers would not be criminally liable for removing the feeding tube from his stomach. In fact, if the carers continued to feed Mr Rossiter against his wishes, they would breach the law by committing a trespass against his body.

By basing the outcome on the right of every mentally competent person aged over 18 to determine what happens to their body, the court also recognised their right to die.

However, the Chief Justice was correct to say his decision provides no basis for doctored-assisted suicide. Doctors and carers are strictly limited by the court's decision to bringing pain relief and comfort to a person during their dying days.

It is remarkable that this outcome has been achieved in the face of what had might have seemed the clear terms of the criminal law. The result speaks volumes for the strength of the principle of self-determination.

Self-determination does, however, have its limits. In Rossiter's case, it could only enable a person to deny themselves the necessities of life. It would not permit someone like Rossiter to consent to another person assisting them to end their life. This could only be achieved by a new act of parliament.

This decision has exposed the need for legislative change. Allowing a person to starve themselves to death over a fortnight is far from the most compassionate or dignified outcome.

This is where euthanasia advocates have a point. Now that a person may legally choose to die through starvation, surely it is time to take the further step of providing more humane options where a person like Mr Rossiter seeks to end their life.

By George Williams, Sydney Morning Herald

(George Williams is the Anthony Mason Professor of Law at the University of New South Wales.)