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The black, white and grey area of assisted suicide

7 Jan 2015, by Informa Insights

Suicide has become a prominent public health concern throughout Australia with 2,535 individuals choosing to take their life in 2012, while the national average over the past five years has reached 2,415 (Australian Bureau of Statistics, 2012).

nick_cowderySuch numbers have caused both Australian medical and legal professional to enter a dialogue surrounding the idea of “assisted suicide”. Though assisted suicide differs from euthanasia, both practices are currently illegal within all states and territories. Nicholas Cowdery QC, former NSW Director of Public Prosecutions who will be speaking at the 24th Annual Medico Legal Congress in March 2015 has been able to shed some light on the legality of the issue.

First of all, can you define “assisted suicide”?
Section 31C of the Crimes Act 1900 (NSW) provides assisted suicide to be:

“(1)  A person who aids or abets the suicide or attempted suicide of another person shall be liable to imprisonment for 10 years.

(2)  Where:
       (a)  a person incites or counsels another person to commit suicide, and
       (b)  that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the first mentioned person shall be liable to imprisonment for 5 years.”

In order to aid or abet suicide, a person must be aware of the essential matters constituting the crime of suicide (even though committing suicide or attempting to do so are no longer separate criminal offences) – that is, killing oneself. But it is not necessary that the person know that what is done amounts to a crime; ignorance of the law being no excuse.

Aiding or abetting suicide may be committed by a person who is actually present for the purpose of assisting in some way when the deed is done, is constructively present (i.e. near enough to be able to assist if required) or provides material assistance for the deed (e.g. supplies a drug or other means that will kill).

How do you approach the large grey area that assisted suicide presents to the legal practitioner?
The criminal law is clear – aiding, abetting, inciting or counselling suicide (or attempted suicide) are offences. Those who so conduct themselves should be aware, and know that they are running a risk of punishment if they commit an offence.

Getting Justice WrongWhat is the rate of conviction in Australia for these cases compared to, say, the U.S. or the U.K.?
I do not presently have information on jurisdictions outside of NSW; but in NSW there is a low number of convictions for any of these offences. In rare cases where murder or manslaughter have been charged, sometimes pleas of guilty have been accepted to aiding suicide. Very low penalties are usually imposed for this offence (e.g. good behaviour bonds).

You published a book titled ‘Getting Justice Wrong: Myths, Media and Crime’ in 2001, which was clearly written for the non-legal audience. Firstly, what are some of the reactions that you have had from lawyers? And secondly, where, in your opinion, did we get it wrong?
The book has been very favourably received by lawyers, teachers, and others and continues to sell in small quantities, by electronic copies and internet ordering. It is currently used as a reference in the Legal Studies course in high schools in NSW.

One of the areas in which, in my view, we have got justice wrong is in criminalising the actions of well-motivated people who attempt to assist terminally ill persons who are in great suffering and have a clear wish to end their lives.

Another area is in criminalising association with certain drugs. The book reveals more.

Finally, what professional advice would you give to law students considering this area of law?
I would not give “professional” advice to law students; but I would (as I do in the courses I teach) encourage them to critically assess all the laws they study and take presented opportunities to make changes for the better – in legal practice or just as citizens. The law must be constantly examined, tested, and improved.

Nicholas will be delving further into the highly controversial and potent issue of assisted suicide at the 24th Annual Medico Legal Congress in March 2015.

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Click to view agenda and key speakers of 2016 Medico Legal Congress

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