Page 3513 - Week 12 - Wednesday, 12 October 1994
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Mr Francis states:
The first question asks, more particularly, whether the amended form of Clause 22 could have the effect of protecting a health professional from laws relating to homicide and suicide if that health professional administers a drug or engages in any other course of conduct intended to bring about the death of a patient (in order to accord that person maximum relief from pain or suffering or both).
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The right proposed to be conferred by the Clause differs from rights of the sort often contained in actual or proposed Bills of Rights in various jurisdictions in that the latter generally confer on the grantee a right not to be restrained from doing something (as with a right to bear arms, for example) or a right not to be coerced into doing something (as, for example, the right to remain silent). In such cases, the corresponding duty imposed on others is relatively clear, namely a duty not to interfere with the exercise of the right.
However, the right proposed to be conferred by Clause 22 is more akin to what are often referred to as "social rights", for example, a "right to affordable housing". In such cases, without a detailed specification of the nature and extent of the corresponding duties, and the persons subject to those duties, it is usually difficult to determine what such a right actually confers on the beneficiary or imposes on others in the community.
This difficulty of interpretation is made particularly acute by the fact that the opening words of Clause 22 provide that the Clause operates notwithstanding the provisions of any other law of the Territory. Apart from overriding any parts of the criminal law inconsistent with its provisions, one might ask if and to what extent a Clause such as Clause 22 might override civil or regulatory laws of the Territory which may restrict (in a matter judged to be "unreasonable" in a particular set of circumstances) the right conferred. For example, would Clause 22 override laws limiting the quantities of analgesics or sedatives which may be provided to particular persons, or in particular circumstances?
It may well be that a court would read into Clause 22(1) after the word "receive" the words "from that health professional". Assuming this to be the case, I turn to the possible effect of Clause 22 on the law relating to homicide.
Section 12 of the ACT Crimes Act 1900 provides that a person commits murder if he or she causes the death of another person intending to cause the death of any person or with reckless indifference to the probability of causing the death of any person.
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