Page 3515 - Week 12 - Wednesday, 12 October 1994
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It would clearly not be reasonable to administer drugs or embark on a course of action with the intention of bringing about the death of a patient if relief from pain and suffering could be achieved in some less drastic way. If, however, pain and suffering could not be relieved adequately in that way (particularly as the patient's own account of his or her pain and suffering might have it) the question becomes more difficult. Might a court decide that it would be reasonable in such circumstances to take measures intended to bring about the death of the patient in circumstances where the defence in Adams may not apply, for example, when the patient is not terminally ill (see Skegg ... p. 136, footnote 55).
Given the terms of Clause 22, I do not think that this possibility can be excluded. It is not impossible to imagine circumstances where a court might hold that a sick or disabled person's pain and suffering, physical or mental, could not be relieved except by the bringing about of death, whether or not that person is terminally ill, and that this might be "reasonable" in the context of Clause 22, particularly where this was also the view of the patient. In the case of Re B [1990] 3 All ER 927, 929, the English Court of Appeal determined that it was in the interest of a child with Down's Syndrome to have an operation to relieve an intestinal blockage but Templeman L left open the possibility that:
There may be cases, I know not, of severe proved damage where the future is so certain and where the life of the child is so bound to be full of pain and suffering that the court might be driven to a different conclusion ... (at 929)
Here the QC refers to statements in the house by Mr Connolly indicating that it is not the intention of the Government to bring about active euthanasia through the Bill. Mr Francis goes on to say:
Official records of debates in the Legislative Assembly may be considered to determine the meaning of a legislative provision when the provision is ambiguous or obscure (sections 11B(1)(b) and (2)(dd) of the Interpretation Act 1967). But Clause 22 is clearly drawn to override other laws of the Territory. Since the existing law allows, at least in the context of the terminally ill patient, the administration of whatever drugs are necessary for the relief of pain and suffering, even if such drugs have as one of their consequences a shortening of life, Clause 22 must be taken to intend to permit something further than that. It is possible that a court might hold that the interpretation of Clause 22 in this way was by no means ambiguous or obscure, and thus that no contrary indication in the official records of debate would be taken into account. The meaning is, however, at least sufficiently uncertain for a judge, when determining its meaning, to be strongly influenced by his own personal views on euthanasia.
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