Explainer: could federal law end the state bans on euthanasia?

If Senator Richard di Natale were to win the federal parliament’s support for his bill to legalise euthanasia, it would probably override state bans. AAP/Lukas Coch

Greens senator Richard Di Natale is circulating a bill to legalise euthanasia throughout Australia, the Medical Services (Dying with Dignity) Exposure Draft Bill.

The key provision permits – subject to safeguards designed to ensure, among other things, informed consent – a medical practitioner to provide “dying with dignity medical services” to a terminally ill person who requests them. The bill defines “dying with dignity medical services” as services that enable a person to end his or her life in a humane manner.

Currently, euthanasia performed with the intention of ending life is murder under the criminal law of every state. Administering pain relief without that intention, even though it is likely to shorten life, is probably not a crime. But a valid Commonwealth law legalising euthanasia would override state law.

The proposed legislation raises four constitutional issues.

1. The provision of medical services

Does the Commonwealth’s power under the constitution to make laws with respect to “provision of medical services” permit a law with respect to the provision of a service, euthanasia, which is a crime under state law? The probable intention of the medical services power is to enable the Commonwealth to provide medical services to Australians regardless of the state in which they live. Hence the Commonwealth can probably use the power to provide a medical service that involves the commission of a crime under state law.

Assume that a state law prohibits a medical procedure, for example blood transfusions, which is available throughout the rest of the country. A Commonwealth law providing for blood transfusions in the state concerned would probably be valid under the power.

It may be objected that states have the power to define what is a medical service and what is a crime. Impermissible “medical services” tend to be crimes. For example, the surgical removal of a limb without good reason is a maiming and criminal, even if consented to. On this view, the Commonwealth can only make provision for medical services that each state permits, but cannot make provision for medical services that state law does not permit.

This view assumes that the constitution reserves power over criminal law to the states. The theory that the constitution reserves to the states some exclusive powers which can be identified a priori and used to limit the scope of Commonwealth powers was rejected in 1920.

It is unlikely that the court would apply it to limit the medical services power unless that power can be seen as an exception to the general rule. As exceptions tend to be limited to powers that contain a prohibition on certain types of legislation, such as the banking power, that is unlikely. The only prohibition that the medical services power contains is a prohibition on civil conscription, which is not relevant.

It may be argued that the bill is not a law under the medical services power because euthanasia is not a medical service. Parliament cannot decide for itself what falls within the terms that define its powers, so it is not free to define for itself what falls within the term “medical service”.

How should medical service be defined? Should it be defined according to the traditions and ethics of western medical practice going back to the Hippocratic Oath? This required the medical practitioner to “give no deadly medicine to any one if asked”. If medical service were defined in this way, euthanasia and assisted suicide would fall outside the definition so that it would not be a service for which the Commonwealth could provide.

However, the ban on assisted suicide and euthanasia has become controversial within the profession. Many physician’s oaths, such as the Declaration of Geneva adopted by the World Medical Association, no longer contain it.

Recent cases suggest that the High Court is unlikely to consider the traditions and ethics of western medical practice in determining the content of medical service. The court is likely to interpret medical service in a way that leaves the politically accountable legislature free to determine whether medical euthanasia ought to be legal.

The same-sex marriage case suggests the High Court will leave it to parliament to decide on euthanasia. AAP/Daniel Munoz

In the recent same-sex marriage case, the court adopted a very abstract definition of the term marriage in the marriage power, rejecting the argument that our traditional understanding of marriage limited it to a relationship between persons of the opposite sex. This left parliament free to decide whether to permit same-sex marriage. The court is likely to adopt a similarly abstract definition of medical service, leaving it for parliament to determine whether to permit euthanasia.

Hence, a challenge to the law on the grounds that it is not a law with respect to the provision of medical services is likely to fail.

2. What about the territories?

Can the Commonwealth legislate for euthanasia in a territory? The Commonwealth can legislate for assisted suicide in a territory, whether or not the territory in question criminalises euthanasia. This is because section 122 of the constitution gives the Commonwealth unlimited legislative power over territories.

Commonwealth law prevails over inconsistent territory law.

3. Immunity under the corporations power?

Can the Commonwealth under the corporations power give an employee of a corporation an immunity from a state law criminalising euthanasia? Laws that change the rights and duties of trading and finance corporations probably fall within the corporations power, regardless of the subject of the laws.

So, a law permitting a trading or a finance corporation to provide a euthanasia service is probably valid under the corporations power, even if euthanasia is a crime under state law.

If the corporation could legally provide such a service, given that corporations can only act through their employees and agents, its immunity from state law would extend to its employees or agents who performed the service.

The bill does not permit corporations to provide euthanasia but permits a doctor employed by a corporation to do so. In applying to the employees of corporations so as to change their rights and duties without changing the rights and duties of the corporation, it may be beyond power.

4. Who qualifies as a trading corporation?

Is a corporation that provides medical services, such as an incorporated medical practice, a hospital or a nursing home, a trading corporation for the purposes of the corporations power?

The corporations power applies only to certain types of corporation, the most important being trading corporations. A corporation the business of which includes the provision of goods or services in return for a fee is likely to be a trading corporation.

Whether the corporation intends to provide a service rather than make a profit and whether the corporation’s core business is manufacturing or mining or providing medical services rather than trade are largely irrelevant in determining whether it is a trading corporation. Hence hospitals, nursing homes and incorporated medical practices are probably trading corporations.

Conclusion

The bill, apart from the provision that permits a doctor employed by a corporation to perform euthanasia, is probably valid. That provision, which is poorly drafted, would be more likely to succeed if it empowered corporations to provide euthanasia.