{"id":281266,"date":"2021-08-20T00:02:28","date_gmt":"2021-08-20T00:02:28","guid":{"rendered":"http:\/\/castancentre.com\/?p=5432"},"modified":"2021-08-20T00:02:28","modified_gmt":"2021-08-20T00:02:28","slug":"the-right-to-die-with-dignity-and-autonomy-in-victoria","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/08\/20\/the-right-to-die-with-dignity-and-autonomy-in-victoria\/","title":{"rendered":"The Right to Die with Dignity and Autonomy in Victoria"},"content":{"rendered":"\n

By Neerav Srivastava. <\/strong>I am grateful to Prof. Kevin Bell and Ms Andrea Olivares Jones at the Castan Centre for their advice and feedback. <\/em><\/p>\n\n\n\n

A right to assisted dying is a scary proposition. It means that a State is obliged to help someone die. Such a right challenges traditions, values, and beliefs. Societies are living organisms, built on continuity, and the sanctity of human life.<\/p>\n\n\n\n

There are circumstances, however, where an assisted dying preserves the dignity and autonomy of an individual. This piece argues, first, that there is a limited right to die (the right<\/em>) as an aspect of the right<\/em> to privacy at section 13(a) of the Charter of Human Rights And Responsibilities Act 2006<\/em> (Vic)<\/a> (\u2018Charter<\/em>\u2019). Second, that the Voluntary Assisted Dying Act 2017<\/em> (Vic)<\/a> (\u2018VADA<\/em>\u2019) is inconsistent with the right<\/em> because it fails to provide for an exceptional residual judicial discretion to permit an assisted dying.<\/p>\n\n\n\n

The need for a right to die<\/strong><\/h3>\n\n\n\n

While it is hoped no one is ever in the position of wanting an assisted death, the reality is that this is not always the case.  <\/p>\n\n\n\n

In a harrowing example, during the 1999 Japanese Tokaimura nuclear accident, Mr Ouchi was exposed to considerable radiation<\/a>. On arrival at the hospital, he was described as \u2018a husk<\/a> of a man\u2019. He was \u2018practically skin-less\u2019, had almost zero white blood cells, organ failures and a destroyed immune system. After a week, Mr Ouchi said that \u2018he can\u2019t take it anymore\u2019 and that he was not a guinea pig<\/a>. He was kept alive for 83 days; allegedly<\/em><\/a> against his will and because his survival was a matter of national pride. To be clear, these are allegations. <\/p>\n\n\n\n

Closer to home, the Victorian Inquiry<\/a> that led to the enactment of VADA<\/em> reported on a number of cases involving spouses who had helped their partner die. One case involved a woman who had large tumours, and was unable to wash, dress or feed herself. She asked her husband to help her end her life. He complied, even though it was unlawful, and was convicted of aiding and abetting a suicide. The sentencing judge observed that the husband\u2019s love for his wife was absolute. Tragic circumstances led to tragic consequences.<\/p>\n\n\n\n

While a right to die is deeply troubling, the absence of such a right is also troubling. There are exceptional circumstances where the desire for assisted dying is explicable. Further, it would be impossible to exhaustively identify every scenario when there is a genuine and understandable desire for an assisted death. <\/p>\n\n\n\n

The spouse cases suggest that if the State does not permit assisted dying, it will still occur. Illegality amplifies the tragedy. A right to die is also a form of protection against the State keeping us alive for its own purposes as was alleged occurred with Mr Ouchi. <\/p>\n\n\n\n

Understanding \u2018rights\u2019<\/strong><\/h3>\n\n\n\n

The starting point of the argument is understanding the technical meaning of a \u2018right\u2019. \u2018Rights<\/a>\u2019 relates to the conduct of another. For human \u2018rights\u2019, there is a correlative duty owed by the State. The right to life means that the State owes a duty to protect that right through the laws it passes and its actions. \u2018Rights\u2019 can be distinguished from \u2018liberties<\/a>\u2019. A mere \u2018liberty\u2019 is not relational and does not impose obligations on anybody else. <\/p>\n\n\n\n

If there is a \u2018right\u2019 to die, the State owes duties in respect of that right. If it was an absolute right to die, then anybody<\/em> could insist that the State help them die. This piece takes the position that assisted dying should be exceptional. <\/p>\n\n\n\n

However, if there is a mere liberty to die then the State does not owe individuals any obligations. Legally, the State could ignore do not resuscitate (DNR) instructions, keep us alive for its own purposes, and act contrary to our own wishes, autonomy, and dignity. <\/p>\n\n\n\n

As for a right to assisted dying in certain circumstances, cases in the US<\/a>, EU<\/a>, UK<\/a>, Canada<\/a>, and India<\/a> support a conclusion that it exists as an aspect of privacy, autonomy, and dignity. Similarly, in Victoria, the Minister for Health<\/a> acknowledged that the right to privacy was engaged by the bill that became VADA<\/em>.<\/p>\n\n\n\n

Right to die as aspect of right to privacy<\/strong><\/h3>\n\n\n\n

Hence, a mere liberty to die is hard to reconcile with the right to privacy at s 13(a) of the Charter<\/em>, a right of considerable amplitude<\/a>. Privacy has been held to include the rights to autonomy<\/a>, dignity<\/a>, be free from unwarranted government interference<\/a>, be secluded<\/a>, and sexual orientation<\/a>. Privacy protects the exercise of self-determination<\/a>. With respect to dying, cases have held that privacy includes the right to:<\/p>\n\n\n\n