1. Airdale NHS Trust v. Bland [1993] A.C 789, 867, concluding that “Euthanasia is not lawful at common law”.Google Scholar

2. See e.g. John, Finnis, “A Philosophical Case Against Euthanasia”, in John, Keown (Ed.), Euthanasia Examined; Ethical, Clinical and Legal Perspectives (1995), p.23; Luke Gormally, “Walton, Davies, Boyd and the Legalization of Euthanasia”, in idem, pp.113, 128.Google Scholar

3. See e.g. Report of the House of Lords Select Committee on Medical Ethics, HL Paper 21–1 of 1993–1994, para.260 (“Walton Report”).Google Scholar

4. Ronald, Dworkin, Life's Dominion: An Argument About Abortion and Euthanasia (first published 1993; 1995 edn).Google Scholar

5. Rights of the Terminally Ill Act 1995 (NT) (invalidated by reason of inconsistency with Commonwealth law). In 1994 Oregon passed citizen-initiated referendum. Measure 16, which purported to decriminalise “physician-assisted suicide”. Its operation was prevented by a preliminary injunction issued by a Federal Court judge on 27 Dec. 1994 (Lee v. Oregon Civil No.94–6467–HO) which was made permanent on 3 Aug. 1995 on the basis that it violated the equal protection guarantees of the 14th Amendment: Lee v. Oregon 891 F.Supp. 1421, 1438 (D Or, 1995).Google Scholar This ruling was overturned by the Ninth Circuit Court of Appeals in Feb. 1997 for lack of standing, and leave to appeal to the Supreme Court refused on 14 Oct. 1997. A second referendum to repeal provisions, Measure 51, was defeated on 4 Nov. 1997. (See information at URL: http://www.iaetf.org/sptlt2.htm.)

6. Euthanasia Laws Act 1997 (Cth).

7. John, Keown, “Introduction”, in his op. cit. supra n.2, at p.1.Google Scholar The definition of euthanasia adopted in the Netherlands, which includes the notion of patient consent, b discussed below.

8. See e, g. John, Harris, The Value of Life (1985), chap.2Google Scholar; Jean Davies, “The Case for Legalising Voluntary Euthanasia” in Keown, idem, pp.83, 89–91. Cf. John Keown, “Euthanasia in the Netherlands: Sliding Down the Slippery Slope?”, in idem, pp.261, 270–271.

9. Walton Report, supra n.3, at para.21; Yale Kamisar, “Physician-Assisted Suicide: The Last Bridge to Active Voluntary Euthanasia”, in Keown, idem, pp.225, 244–245; Bryan Jen-nett, “Letting Vegetative Patients Die”, in idem, pp.169, 170.

10. Rights of the Terminally Ill Act 1995 (NT), s.3. See infra text accompanying n.139.

11. Cf. Walton Report, supra n.3, at para.23.

12. Pope, John Paul II, On the Value and Inviolability of Human Life (Evangeliwn Vitae, 25 Mar. 1995), para.57.Google Scholar His Holiness later states: “I confirm that euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a human person”: idem, para.65 (emphasis in original).

13. Idem, para.2.

14. Dworkin, op. cit. supra n.4. Dworkin's main goal is to break the American impasse over the moral and legal dilemmas of abortion, and much of his work is dedicated to an analysis of the right to abortion under the US Constitution. Such matters will only tangen-tially concern us here.

15. Idem, p.217.

16. See idem, pp.68–101. This distinction is most important in the context of the abortion debate, as it attempts to avoid the view that the opposition of pro-life and pro-choice groups centres on the morality of murdering persons or potential persons with rights and interests.

17. Idem, pp.91–92.

18. Idem, p.91. The clearest (and most authoritative) example of the former position is that of the Pope: see supra n.12. For a brief critique of Dworkin's location of the sacredness of human life in the concept of investment, see John, Harris, “Euthanasia and the Value of Life”, in Keown, op. cit. supra n.12, at pp.6, 12–13.Google Scholar

19. Dworkin, idem, pp.155–157.

20. Idem, pp.155–156. This may be contrasted with a “subjective-importance” test, that would potentially cover far wider beliefs (including intensely felt prejudices): idem, p.163.

21. Idem, p.157.

22. Idem, pp.201–207. Harris, loc. cit. supra n.18, incorrectly assumes that by adopting interests in this context, Dworkin no longer relies on his schema of natural and human investment in life. Rather, the notion of “critical interests” becomes important as a question of how we value the human investment in life—the distinction remains important as it would otherwise fafl to take account of the “sanctity of life” argument against euthanasia.

23. Dworkin, idem, p.202.

24. Idem, p.217. Harris is critical of Dworkin‘s reliance on “critical” interests (as indica-tive of that which is sacred in life), preferring the notion of respect for persons: op. cit. supra n.18, at p.16.Google Scholar In his examination of the Bland case, however, it is unclear what value this distinction has when be concludes that non-voluntary euthanasia of Tony Bland was justified on the basis that be was “no longer a person”: idem, p.18. This appears to add little to Dwor-kin’s analysis of “critical interests”, however (see e.g. Dworkin, idem pp.208–209), while at the same time undermines the correlative rights to beneficence and dignity that Dworkin identifies. See also John Finnis, “The Fragile Case for Euthanasia: A Reply to John Harris”, in Keown, op. cit. supra n.2, at pp.46, 48–49. For Harris's response, see his “Final Thoughts on Final Acts”, in idem, pp.56, 59.Google Scholar

25. Dworkin, idem, p.230. See also Israel, Rosenfield, The Strange, Familiar, and Forgotten (1992).Google Scholar

26. Dworkin, idem p.225.

27. Idem, pp.225–226.

28. Idem, p.228.

29. Idem, p.232.

30. See idem, pp.70–74 for the distinction.

31. Idem, p.236.

32. Idem, p.239.

33. Idem, p.217.

34. See e.g. Finnis, op. cit. supra n.24, at pp.52–53.Google ScholarCf. Aurora, Plomer, “Book Review: Life's Dominion by Ronald Dworkin” (1996) 59 M.L.R. 479, 480Google Scholar; “religious laissez-faire cannot simply be taken for granted when the life of another human being is at stake”. In his encyclical, the Pope singles out individualism as one of the aspects of materialism that supports the “culture of death”: Pope John Paul II, op. cit. supra n.12, at para.23.

35. See e.g. England: Sidaway v. Board of Governors of Bethlem Royal Hospital [1985] A.C 871, 882, 888Google Scholar; Australia; Rogers v. Whitaker (1992) 175 C.L.R. 479, 486–487Google Scholar; Canada; Rodriguez v. A-G (British Columbia) [1993] 3 S.C.R. 519, 598–599Google Scholar; US: Cruzan v. Missouri 497 US 261 (1990).Google Scholar

36. See e.g. England: Bland, supra n.1, at pp.857, 859, 864, 882, 892Google Scholar; Canada: Nancy B v. Hôtel-Dieu at Québec (1992) 86 D.L.R. (4th) 385Google Scholar; US: Fosmire v. Nicoleau 551 N.Y.S. 2d 876 (1990)Google Scholar; State v. McAfee 385 S.E. 2d 651 (1989).Google Scholar

37. Walton Report, supra n.3, at para.21.

38. Bland, supra n.1. In 1989, 17-year-old Anthony Bland's lungs were crushed and perforated at the Hillsborough football stadium disaster. Due to prolonged oxygen deprivation, his cerebral cortex had “resolved into a watery mass”: idem, p.856 (per Lord Keith).

39. The problems associated with deferring judgment to “responsible medical opinion” are discussed infra n.58 and accompanying text

40. Bland, supra n.1, at pp.858–859 (per Lord Keith), 867–869 (per Lord Goff), 876–877 (per Lord Lowry), 883–884 (per Lord Browne-Wilkinson), 897–899 (per Lord Mustill).Google Scholar

41. This is distinct from the American case law concerning “substituted judgment”: see e.g. Roger, Magnusson, “The Future of the Euthanasia Debate in Australia” (1996) 20 Melbourne U.L.Rev. 1108, 1117 and references there cited.Google Scholar

42. Bland, supra n.1, at p.897. Similarly, Lord Keith noted that in a situation where a person has no cognitive capacity and no prospect of recovery “it must be a matter of complete indifference whether he lives or dies”: idem, p.858. Other judgments also emphasised the futility of Anthony Bland's life: idem, pp.899 (per Lord Mustill), 869 (per Lord Goff).Google Scholar

43. See e.g. Jennett, , op. cit. supra n.9, at p.169.Google Scholar

44. See e.g. Peter, Singer, Re-Thinking Life and Death: The Collapse of Our Traditional Ethic (1994), pp.57–80, and “Presidential Address: Is the Sanctity of Life Ethic Terminally Ill?” (1995) 9 Bioethics 327, 337–342Google Scholar; John, Finnis, “Bland: Crossing the Rubicon?” (1993) 109 L.Q.R. 329, 335Google Scholar, and op. cit. supra n.2, at pp.30–34.Google Scholar

45. Bland, supra n.1, at p.898 (per Lord Mustill).Google Scholar

46. Idem, p.895 (per Lord Mustill).

47. Idem, p.865 (per Lord Goff).

48. Walton Report, supra n.3, at para.7.

49. Keown, , op. cit. supra, n.2, at pp.6–71.Google Scholar

50. Finnis, , op. cit. supra n.2, at p.33.Google Scholar

51. Ibid.Cf. Garmally, , op. cit. supra n.2, at pp.116–117.Google ScholarSee also Pope, John Paul II, op. cit. supra n.12, at para.65.Google Scholar

52. John, Harris, “The Philosophical Case Against the Philosophical Case Against Euthanasia”, in Keown, op. cit. supra n.2, at pp.36, 43.Google Scholar

53. Grimley, Evans, Professor of Geriatric Medicine at Oxford University, quoted in Raymond Tallis, “Is There a Slippery Slope?”, Times Literary Supplement (London), 12 Jan. 1996, p.3.Google Scholar

54. Bland, supra n.1, at p.867Google Scholar (per Lord Goff). See also Walton Report, supra n.3, at paras.242–244.Google Scholar

55. Auckland Area Health Board v. A-G(NZ) [1993] 1 N.Z.L.R. 235, 252, 253 (Thomas, J).Google Scholar

56. Compassion in Dying v. State of Washington 79 F.3d 790 (1996), 824Google Scholar (per Reinhardt J): “we see little, if any, difference for constitutional or ethical purposes between providing medication with a double effect and providing medication with a single effect, as long as one of the known effects in each case is to hasten the end of the patient's life. Similarly, we see no ethical or constitutionally cognizable difference between a doctor's pulling the plug on a respirator and his prescribing drugs which will permit a terminally ill patient to end his own life.”

57. Twycross, Robert G, “Where There Is Hope, There Is Life: A View from the Hospice”, in Keown, , op. cit. supra n.2, at pp.141, 166.Google Scholar

58. This is embodied in the Bolam test, referring to Bolam v. Friem Hospital Management Committee [1957] 1 W.L.R. 582Google Scholar, the essence of which is that “[a] doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art” (per McNair J). See abo Sidaway v. Board of Governors of Bethlem Royal Hospital [1985] A.C. 871, 891–895Google Scholar (per Lord Diplock). This position has been extensively criticised and rejected outside England and Scotland: see e.g. Rogers v. Whitaker (1992) 175 C.L.R. 479Google Scholar; Dieter, Giesen, “Dilemmas at Life's End: A Comparative Legal Perspective”, in Keown, , op. cit. supra n.2, at pp.200, 209–210Google Scholar and references there cited. The position was also expressly rejected by the Dutch Supreme Court see infra n.82 and accompanying text.

59. See Ronald, Dworkin et al. , “Assisted Suicide: The Philosopher' Brief”, New York Review of Books, 27 Mar. 1997, pp.41, 42, and references there cited.Google Scholar

60. Bland, supra n.1, at p.891 (per Lord Mustill).Google Scholar

61. In addition to the much publicised example of Michigan doctor Jack Kevorkian, see e.g. R. v. Cox (1992) 12 B.M.L.R. 38.Google Scholar In this case Dr Nigel Cox was unable to control the pain of a patient suffering from rheumatoid arthritis who repeatedly begged him to kill her. Making no attempt to conceal what he was doing, he gave her a lethal injection of the poison potassium chloride. A nurse reported the action and he was charged with attempted murder (by this time the body had been cremated and there was no evidence that the injection was the operative cause of death). He was convicted of attempted murder, but given a one-year suspended sentence; the General Medical Council reprimanded him but permitted him to remain a practising doctor: Harris, , op. cit. supra n.18, at p.7.Google Scholar

62. See e.g. Finnis, op. cit. supra n.2; Pope, John Paul II, op. cit. supra n.12.Google Scholar

63. In Australia a South Australian survey found that 45% of doctors sampled supported the legalisation of active voluntary euthanasia in certain circumstances: Steven, C. and Hasssan, R., “Management of Death, Dying and Euthanasia: Attitudes and Practices of Medical Practitioners in South Australia” (1994) 20 J. Medical Ethics 41.Google Scholar A survey of New South Wales and ACT doctors found majority support for changes to the law to allow active voluntary euthanasia: Baume, P. and O'Malley, E., “Euthanasia: Attitudes and Practices of Medical Practitioners” (1994) 161(2) Medical J. of Australia 137.Google Scholar In a survey of Victorian nurses 75% favoured law reform to enable doctors to perform active voluntary euthanasia in some circumstances, with 65% saying that they would participate in active voluntary euthanasia if it were legal: Kuhse, H. and Singer, P., “Euthanasia. A Survey of Nurses' Attitudes and Practices” (1992) 21(8) Australian Nurses J. 21.Google Scholar A study of Victorian nurses involved in palliative care and oncology found that only 40% were prepared to assist with active euthanasia if it were legal However, 50% favoured law reform to enable doctors to take active steps to bring about a patient's death in some circumstances: Aranda, S. and O'Conner, M., “Euthanasia, Nursing and Care of the Dying: Rethinking Kuhse and Singer” (1995) 3(2) Australian Nursing J. 8.Google Scholar

64. See e.g. Dworkin, , op. cit. supra n.4, at pp.186, 189Google Scholar; Kamisar, , op. cit. supra n.9, at pp.246–247.Google Scholar

65. E.g. two months before the passage of the Northern Territory legislation in Australia, seven Melbourne doctors admitted on the front page of a major dairy newspaper that they had performed euthanasia and called for the introduction of legislation on the issue: Nick, Davies, “Helping Patients to Die”, The Age (Melbourne), 25 Mar. 1995, p.1.Google Scholar “Right to life” groups called for their prosecution, but investigations by the Victorian police and the Medical Practitioners' Board of Victoria were abandoned for lack of evidence: Rachel, Buchanan, “Police Drop Euthanasia Inquiry”, The Age (Melbourne), 10 Aug. 1995, p.3.Google Scholar

66. This is particularly true of governmental enquiries into euthanasia: see e.g. Walton Report, supra n.3, at para.237. It is also the position that was argued by the US Solicitor General in the Supreme Court case concerning the constitutionality of State laws prohibiting assisted suicide: Washington et al. v. GlucksbergUS Sup Ct No.96–110 (1997)Google Scholar; Vacco v. Quill US Sup Ct 95–1858 (1997)Google Scholar, discussed in Dworkin, et al. , op. cit. supra n.59, at p.42.Google Scholar Dworkin notes that this strategy was presumably adopted to protect existing case law on abortion. The unanimous decision that the laws were valid was justified by the majority (led by Rehnquist CJ) on the basis of a historicist interpretation of the “due process” provisions of the 14th Amendment: the clause permits laws prohibiting physician-assisted suicide because almost all States have long prohibited such acts: see generally Ronald, Dworkin, “Assisted Suicide: What the Court Really Said”, New York Review of Books, 25 Sept. 1997, p.40.Google Scholar Dworkin argued that, although no justice dissented from tins decision, “Five of the six judges who wrote opinions made it plain that they did not reject such a right in principle.” For a critique by Yale, Kamisar and Dworkin's, response see “Assisted Suicide and Euthanasia: An Exchange”, New York Review of Books, 6 Nov. 1997, p.68.Google Scholar

67. Walton Report, supra n.3, at para.237.

68. For the purposes of this Part, I assume that there will be no retreat to a stronger form of the sanctity of life ethic.

69. See e.g. Dworkin, , op. cit. supra n.4, at pp.216–217. The limited interest that he allows that a society has in such decisions is that its members exercise this liberty “responsibly”.Google Scholar

70. Marshall, Perron, “Address by Marshall Perron”, in Death and the State: Papers Presented to a Conference on Euthanasia (Centre for Public Policy, University of Melbourne, 23–24 Aug. 1995), p.39.Google Scholar (Marshall Perron was the Chief Minister of the Northern Territory and introduced the private member's bill that became the Rights of the Terminally Ill Act 1995 (NT).) Cf. the requirement for institutional ethics approval as a prerequisite to the termination of life support in Auckland Area Health Board v. A-G (NZ) [1993] 1 N.Z.L.R. 235.Google ScholarSee Skegg, P., “Omissions to Provide Life-Prolonging Treatment” (1994) 8 Otago L.Rev.205.Google Scholar

71. In the recent US Supreme Court action, acting US Solicitor-General, Walter Dell-inger, stated that managed-care organisations in Oregon have already offered to pay for death rather than long-term care: “The Euthanasia War”, The Economist, 21 June 1997, pp.19, 20.Google Scholar

72. Tak, Peter J. P., Euthanasia in the Netherlands (1997), p.7.Google Scholar

73. Keown, , op. cit. supra n.8, at p.282.Google Scholar

74. See e.g. Pollard, Brian J., “Medical Aspects of Euthanasia” (1991) 154 Medical J. of Australia 613.Google Scholar For an in-depth consideration of the Dutch position see Martien, Muller, Death on Request Aspects of Euthanasia and Physician-Assisted Suicide with Special Regard to Dutch Nuning Homes (1996).Google Scholar

75. See e.g. Twycross, , op. cit. supra n.57, at p.161.Google Scholar

76. My discussion will focus on euthanasia, although the same principles apply to assisted suicide. Significantly, the Northern Territory legislation does not distinguish between the two: see infra n.139 and accompanying text.

77. Dutch Penal Code §§293–294. Active voluntary euthanasia carries a punishment of up to 12 years' imprisonment or a NLG 1,000,000 fine. Assisted suicide is punishable by up to three years' imprisonment or a NLG 250,000 fine.

78. Tak, , op. cit. supra n.72, at p.24.Google Scholar

79. See infra n.92.

80. Dutch Penal Code §40. See generally Tak, , op. cit. supra n.72, at pp.24–29.Google Scholar

81. NJ 1985, Nr. 106, cited in Keown, , op. cit. supra n.8, at p.263.Google Scholar

82. NJ 1989, Nr. 391. See also Tak, , op. cit. supra n.72, at p.27. Contra Keown, idem, p.264.Google Scholar

83. The guidelines as listed in 1989 by the then Chair of the Dutch Health Council are quoted in Keown, ibid.

84. Tak, , op. cit. supra n.72, at pp.25–30Google Scholar; Natasha, Cica, Euthanasia—the Australian Law in an International Context Part 2: Active Voluntary Euthanasia (Research Paper No.4 1996–1997, Parliamentary Research Service, Department of the Parliamentary Library, Canberra, 1996) (available on-line at http://library.aph.gov.au); Keown, ibid.Google Scholar

85. See the discussion of the Chabot case, infra nn.117–119 and accompanying text.

86. The defence of necessity cannot be invoked by another health-care worker (such as a nurse): van Weerd (Mar. 1995) cited in Cica, op. cit. supra n.84, at n.141.Google Scholar

87. See generally Chrije Brants and Stewart Field, “Discretion and Accountability in Prosecution: A Comparative Perspective on Keeping Crime out of Court”, in Phil, Fennell, Christopher, Harding, Nico, Jörg and Bert, Swart, Criminal Justice in Europe: A Comparative Study (1995), pp.127–138, 143–148.Google Scholar See also Contantijn, Kelk, “Criminal Justice in the Netherlands”, in the same volume.Google Scholar

88. See Jos Silvis and Katberine S. Williams, “Managing the Drugs Problem: Tolerance or Prohibition”, in Fennell et al., idem, pp.149–170.

89. Cica, op. cit. supra n.84.

90. See Tak, , op. cit. supra n.72, at pp.22–23.Google Scholar

91. Act of 2 Dec. 1993, Stb 643.Google Scholar

92. Various bills were introduced by both private members and the government between 1984 and 1989 but failed to obtain a majority: Tak, , op. cit. supra n.72, at pp.14–15.Google Scholar

93. An Australian government research paper identified the following “unique combination of social and cultural attitudes” as explaining the Dutch approach to euthanasia: a willingness to discuss difficult moral issues openly; the increased secularisation of Dutch society since the 1960s; a Calvinist sense of individual responsibility combined with a respect for the autonomy of others; the Royal Dutch Medical Association's approval of doctors participating in voluntary euthanasia; great trust in, and respect for, the medical profession; and universal and comprehensive medical coverage: Cica, op. cit. supra n.84.

94. Keown, , op. cit. supra n.8, at pp.265–266.Google Scholar

95. Griffiths, J., “Euthanasie: legalisering of decriminalisering” [1997] Nederlands Juristen Blad 619, 620.Google Scholar

96. Estimates ranged frora 5,000 to 20,000 cases per year see e.g. R. Fenigsen, “Mercy, Murder and Morality: Perspectives on Euthanasia” (1989) 19(1) Hastings Center Rep. 22–30, cited in Tak, , op. cit. supra n.72, at p.18.Google Scholar

97. Medische besliaingen rond het levenseinde: Rapport van de Comissie onderzoek medische praktijk inzake Euthanasie [Medical decisions concerning the end of life: Report of the Commission on Research into Medical Practice with regard to Euthanasia] (1991) (“Rem-melink Report”).Google Scholar

98. Maas, P. van der, Delden, J. Van, Pijnenborg, L. and Looman, C., “Euthanasia and Other Medical Decisions Concerning the End of Life” (1991) 338 Lancet 669 (“van der Maas Survey”).Google Scholar

99. Outline of the Remmelink Report, cited in Keown, , op. cit. supra n.8, at p.282.Google Scholar See also Tak, , op. cit. supra n.72, at p.19Google Scholar, citing Battin, M., “Voluntary Euthanasia and the Risks of Abuse: Can We Learn Anything from the Netherlands?” (1992) 1–2 Law, Medicine and Healthcare 133, 133–143.Google Scholar

100. Keown, ibid.

101. Paul J. van der, Maas et al. , “Euthanasia, Physician-Assisted Suicide, and Other Medical Practices Involving the End of Life in the Netherlands, 1990–1995” (1996) 335 New England J. of Medicine 1699. The conclusions are supported by the Editorial in that edition of the Journal: Marcia Angell, “Euthanasia in the Netherlands—Good News or Bad?”, idem, p.1676.Google Scholar

102. Tak, , op. cit. supra n.72, at pp.16–17Google Scholar; Keown, , op. cit. supra n.8, at p.270.Google Scholar

103. Van der Maas Survey, supra n.97, at pp.672–673.Google Scholar The figures for the period 1990–1995 were comparable. There was a small increase in incidences of euthanasia, from 1.7 to 2, 4% of all deaths. The authors of the 1995 survey state that this was to be expected, due to “increased mortality rates as a consequence of the aging of the population, an increase in the proportion of deaths from cancer as a consequence of a decrease in deaths from ischemic heart disease, the increasing availability of life-prolonging techniques, and possibly, generational and cultural changes in patients' attitudes”: Van der, Maas et al. , op. cit. supra n.100.Google Scholar

104. Van der Maas Survey, supra n.97, at pp.671–672. In about 40% of these cases the decision to increase drug dosages and the possibility that this might hasten death had been discussed with the patient In 73% of the cases where these matters had not been discussed with the patient, the patient was incompetentGoogle Scholar

105. Ibid; Tak, op. cit. supra n.72, at p. 17. In 30% of these cases the non-treatment decision had been discussed with the patient In 62% of these cases it had not In 88% of all cases where the non-treatment decision had not been discussed with the patient, the patient was incompetent.

106. See Keown, , op. cit. supra n.8, at pp.270–273.Google Scholar

107. For a more extensive discussion of the statistical evidence, see idem, pp.273–275, discussing Dutch criticisms of his interpretation. See also Maas, P. J. van der et al. , “Dances with Data” (1993) 7 Bioethics 323.Google Scholar

108. Steve, Dow and Karen, Middleton, “Euthanasia Rate Backs Legalisation: Researchers”, The Age (Melbourne), 15 Feb. 1997.Google Scholar

109. Tak, , op. cit. supra n.72, at p.31.Google Scholar

110. See supra nn.89–91 and accompanying text

111. Tak, , op. cit. supra n.72, at p.31.Google Scholar In November 1996, a report commissioned by the Dutch Government estimated that euthanasia and assisted suicide accounted for about 3% of all deaths. Life-ending decisions without a specific request accounted for less than 1%. The reporting rate for euthanasia was estimated at 1500 or about 40%: Kelk, C, “De praktijk van de euthanasie: het einde van een rijpingsproces?” [1997] Nederlands Juristen Blad 101, 102.Google Scholar

112. See e.g. Twycross, , op. cit. supra n.57, at pp.160–161.Google Scholar

113. Keown, , op. cit. supra n.8, at pp.262, 287–289Google Scholar, citing Rt Rev. Habgood, J. S., “Euthanasia—A Christian View” (1974) 3 J. Royal Society of Health 124, 126Google Scholar: “Legislation to permit euthanasia would in the long run bring about profound changes in social attitudes towards death, illness, old age and the role of the medical profession. The Abortion Act has shown what happens. Whatever the rights and wrongs concerning the present practice of abortion, there is no doubt about two consequences of the [Abortion Act 1967 (Eng)]: (a) The safeguards and assurances given when the BiH was passed have to a considerable extent been ignored. (b) Abortion has now become a live option for anybody who is pregnant This does not imply that everyone who is facing an unwanted pregnancy automatically attempts to procure an abortion. But because abortion is now on the agenda, the climate of opinion in which such a pregnancy must be faced has radically altered. One could expect similarly far-reaching and potentially more dangerous consequences from legalized euthanasia.”

114. Keown, idem, p.262.

115. idem, pp.262, 282–289. It is significant that, as in his discussion of statistics, Keown conflates euthanasia with other end of Ufe decisions that are accepted in other jurisdictions, such as the withholding of treatment.

116. This is particularly the case given the amount of control that Dutch doctors have in relation to the initial investigation of cases of euthanasia: see Giesen, , op. cit. supra n.58, at p.205.Google Scholar This has been extended to argue that acceptance of euthanasia does not result in greater patient autonomy, but in doctors “acquiring even more power over the life and death of their patients”: Henk A. M. J. ten, Have and Welie, Jos V. M., “Euthanasia: Normal Medical Practice?” (1992) 22(2) Hastings Center Rep. 34, 38.Google Scholar See also Keown, idem, pp.286–287 and sources there cited.

117. Van der, Mass et al. , op. cit. supra n.100.Google ScholarSee also John, Griffiths, Alex, Bood and Heleen, Weyers, Euthanasia and Law in the Netherlands (1998).Google Scholar

118. Chabot case, Netherlands Supreme Court, 21 June 1994, [1994] Nederlandse Jurispni-dentie 656.Google Scholar

119. Dutch Penal Code §9a.

120. John, Griffiths, “Assisted Suicide in the Netherlands: Postscript to Chabot” (1995) 58 M.L.R. 895.Google Scholar Later, in 1994, the Dutch government revised its prosecutorial guidelines in light of the Chabot decision. With respect to patients with a psychiatric disorder, the guidelines now require the doctor who receives the request for euthanasia or assisted suicide to have the patient examined by at least two other doctors, one of whom must be a psychiatrist. The government also responded to the Supreme Court's ruling by dropping 11 of 15 pending prosecutions in relation to cases where the patient was not in the “terminal phase” of a somatic illness: John, Griffiths, “Assisted Suicide in the Netherlands: The Chabot Case” (1995) 58 M.L.R. 232, 247.Google Scholar

121. NJ 1996, Nr. 113.

122. Kadijk case, 13 Nov. 1995, cited idem, n.164.

123. See Tony, Sheldon, “Dutch Court Convicts Doctor of Murder” (1995) 310 British Medical J. 1028Google Scholar; Magnusson, , op. cit. supra n.41, at pp.1131–1132.Google Scholar

124. [1997] Nederlands Juristen Blad 2046, 2046–2047.Google ScholarCf Stolwijk, S. A. M., “De melding-sprocedure euthanasie” (1997) 27 Delikt en Delinkwent 311, 311–315.Google Scholar

125. See supra nn.49–56 and accompanying text.

126. See supra n.61.

127. It is indeed remarkable that courts have played such a major role in the development of the law in a crvfl law jurisdiction, but perhaps it is explicable by circumstances peculiar to the Dutch medico-legal framework: see supra n.93.

128. The van derMaas Survey, supra n.97, found that only a minority of cases of euthanasia were reported to legal authorities. In 72% of cases, doctors certified that death was due to “natural causes”. Reasons for doing so included the “fuss” of a legal investigation (55%); a desire to protect relatives from a judicial enquiry (52%); and fear of prosecution (25%): in Keown, , op. cit supra n.8, at p.281.Google Scholar

129. See generally Dworkin, op. cit. supra n.4; Magnusson, , op. cit. supra n.41, at pp.1132–1134.Google ScholarSee e.g. Cruzan v. Missouri 497 U.S. 261 (1990); Compassion in Dying, supra n.56. See also the discussion of the US physician-assisted suicide cases, supra n.66.Google Scholar

130. The population of the Northern Territory is 170,000. The relative obscurity and small size of this legislature may be significant in the analysis of why it was able to reach consensus that has divided even the Dutch.

131. Such bills are an exception to Australian practice of voting along party lines. Many attempts to legislate for euthanasia attract similar “conscience votes”.

132. Mr Perron's lead role in introducing the euthanasia legislation came despite the Northern Territory being the only jurisdiction in Australia without a voluntary euthanasia society, and the fact that he appears never to have spoken publicly on the issue. He resigned on the day that the vote was taken in the Northern Territory Parliament; Gay, Alcom, “Law Takes Root in Unlikely Territory”, The Age (Melbourne), 25 Mar. 1997, p.A4.Google Scholar

133. Northern Territory Select Committee on Euthanasia, The Right of the Individual or the Common Good? (May 1995).Google Scholar

134. Suzanne, Oliver, “Legislating a Right to Die”, in Death and the State, supra n.70.Google Scholar

135. Euthanasia Laws Act 1997 (Cth). Sec infra nn.180–195 and accompanying text.

136. Rights of the Terminally Ill Act 1995 (NT), s.7(1)(a).

137. Idem, s.4.

138. Idem, s.5.

139. Idem, s.20.

140. Idem, s.3.

141. Criminal Code Act 1983 (NT). S.168 provides: “Any person who (a) procures another to kill himself; (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a crime and is liable to imprisonment for life.” A person may not give authorisation to another to kill him or her: s.26(3). A doctor who performed euthanasia might also be charged with murder s.162(1)(a). Attempted suicide is abo a crime under s.169 and carries a penalty of imprisonment for one year.

142. Rights of the Terminally Ill Act 1995 (NT), s.3 (emphasis added). The original bin had required that the “terminal illness” be one that is likely to cause death within 12 months; this was removed because of the complications presented by the relation between prognosis and consent to treatment, and the difficult burden that it placed on doctors.

143. Idem, s.7(1)(b).

144. Idem, s.7(1)(d).

145. It may be noted that a patient could still request assistance to end his or her life under s.4 where he or she was experiencing “pain, suffering and/or distress” but dearly such a request could not be acted upon unless the illness was causing the patient severe pain and suffering.

146. See Oliver, , op. cit. supra n.133, at p.28.Google Scholar

147. Rights of the Terminally Ill Act 1995 (NT), s.7(1)(c).

148. Idem, s.7(1)(c)(i), (iii).

149. Idem, s.7(1)(c)(ii), (iv). As originally enacted, the Act required that the second doctor confirm that the patient was not suffering from treatable clinical depression.

150. idem, s.8(1).

151. See infra nn.176–178 and accompanying text.

151. Rights of the Terminally Ill Act 1995 (NT), s.7(1)(e).

153. Idem, s.7(1)(f).

154. Idem, s.7(1)(g).

155. Idem, s.7(1)(h).

156. Idem, s.7(1)(i).

157. Idem, s.7(1)(n).

158. Idem, s.7(1)(j).

159. Idem, s.7(1)(k).

160. Idem, s.7(1)(m).

161. Idem, s.9(1).

162. Idem, s.9(1), (2).

163. Idem, s.7(4).

164. Idem, s.10(1).

165. Idem, s.5.

166. Idem, s.7(2).

167. Idem, s.7(1)(p).

168. Gay, Alcorn, “First Death Under NT Mercy Law”, The Age (Melbourne), 26 Sept 1996, p.A1.Google Scholar Running software entitled “Final Exit” written by Des Carnes, patients moved through three computer screens, the last of which read: “If you press ‘Yes’, you will cause a lethal injection to be given within 30 seconds, and will die. Do you wish to proceed? ‘YES/ NO’”: Gay, Alcorn, “Press ‘Yes’ to Die Now”, The Age (Melbourne), 17 Apr. 1996, p.A13. Early prototypes of the software had included a range of CD music and ended with the farewell: “Good-bye and good luck”.Google Scholar

169. Gay, Alcorn, “So Ends a Mother's Difficult Years”, The Age (Melbourne), 7 Jan. 1997.Google Scholar

170. Karen, Middleton, “NT Doctor Digs in as Death Law Vote Nears”, The Age (Melbourne), 24 Mar. 1997.Google Scholar

171. Steve, Dow, “Euthanasia Law Unsettles Medics”, The Age (Melbourne), 22 Feb. 1997.Google Scholar The survey, published in the Lancet, found that doctors and, to a lesser extent, nurses, had a far lower approval rating for the legislation. See also Magnusson, , op. cit. supra n.41, at pp.1134–1137.Google Scholar

172. Rights of the Terminally Ill Act 1995 (NT), s.11(1) (penalty: $20,000 or imprisonment for 4 years).

173. Idem, s.11(2).

174. Idem, s.6(1) (penalty: $10,300).

175. Idem, s.6(2).

176. See supra n.115.

177. See supra n.66.

178. Dworkin, et al. , op. cit. supra n.59, at p.42.Google Scholar

179. Ibid.

180. In addition to the publicity that the legislation gave to the quality of palliative care measures available, an amendment to the Euthanasia Laws Act incorporated an amendment to press the government for greater financial support and training in the field of palliative care: Karen, Middleton, “Right-to-Die Law Overruled”, The Age (Melbourne), 25 Mar. 1997.Google Scholar

181. Ibid.

182. Most notably the Respect for Human Life Bill 1996 (NT) (defeated).

183. Rights of the Terminally Ill Amendment Bill 1996 (NT) (defeated).

184. Wake v. Northern Territory (Supreme Court of the Northern, Territory, Martin, CJ, Angel, and Mildren, JJ, 24 July 1996).Google Scholar

185. Michael, Goron, “Holy Alliance”, Weekend Australian (Sydney), 29 Mar. 1997, p.19.Google Scholar

186. Walton Report, supra n.3.

187. Goron, loc. cit. supra n.184.

188. A similar approach was adopted in arguments presented to the US Supreme Court in the challenge to the constitutionality of State laws prohibiting physician-assisted suicide: see supra n.66.

189. Goron, , op. cit. supra n.184, at p.20.Google Scholar

190. Euthanasia Laws Act 1997 (Cth), Sched.1, inserting a new s.50A into the Northern Territory (Self-Govemment Act) 1978 (Cth).

191. Northern Territory (Self-Govemment Act) 1978 (Cth), s.50A(2)(a), (b) (as amended).

192. Idem, s.50A(2)(c).

193. Idem, s.50A(2)(d).

194. Criminal Code Act 1983 (NT), s.169.Google Scholar

195. Gay, Alcorn, “Senate's Ruling is Matter of Life or Death for Patients”, The Age (Melbourne), 25 Mar. 1997.Google Scholar

196. Middleton, op. cit. supra n.169.

197. Alan, Thornhill, “Note”, Guardian Weekly, 25 May 1997, p.4.Google Scholar

198. Friedrich, Nietzsche, “The Twilight of the Idols”, in The Complete Works of Friedrich Nietzsche (1909–1911), Vol.16, p.88.Google Scholar

199. See e.g. Gomez, Carlos P., Regulating Death: Euthanasia and the Case of the Netherlands (1991), p.14Google Scholar; Amundsen, Darrel W., “Medicine and the Birth of Defective Children: Approaches of the Ancient World”, in McMillan, Richard C, Engelhardt, H. Tristram Jr and Spicker, Stuart F. (Eds), Euthanasia and the Newborn: Conflicts Regarding Saving Lives (1987), pp.3, 6.CrossRefGoogle Scholar

200. Cf. the Supreme Court of Colombia's six-three decision of 21 May 1997, which found that “no one can be held criminally responsible for taking the life of terminally ill patients who have provided clear consent”: see “Top Court Legalizes Euthanasia”, http:// www.rights.org/deathnet/Wnews_9705.html; “The Euthanasia War”, supra n.71, at p.19.Google Scholar

201. In particular it had been argued that the framework adopted in the Northern Territory was too strict: the requirement that a second specialist concur with the assisting doctor's assessment of the patient's condition had presented difficulties given the small number of specialists in that part of Australia: see Gay, Alcorn, op. cit. supra n.168Google Scholar, and “Doctor Defends Death Method”, The Age (Melbourne), 8 Jan. 1997.Google Scholar