Legal columnist HUGH SELBY says a reader requested an article explaining “assisting” or “inciting” a suicide. He says suicide is no longer a crime, but assisting or inducing a suicide is. “I suspect that the reader who induced this article was motivated to ask for it by a personal tragedy. The search for hope and meaning never ends.”

Mention of “end of life” decisions raises “mercy killings” (both with and without the recipient’s consent), as well as our Legislative Assembly’s deliberations on a proposed “voluntary assisted dying” (VAD) law.

A VAD law was introduced last November and referred to a committee that reported in February with many recommendations. The discussion around a VAD process in the ACT reminds us that there are many, conscientiously held, thought through, but different views about how those who are dying and those caring for them should act.

As one of the committee members put it: “I won’t pretend that the bill, or the committee’s recommendations which I support, have the balance perfectly right. This will be an evolving policy space that will take years to resolve complex contradictory rights, ethics and societal viewpoints into the black and white of legislation.”

There will be legislation. It will have wide support. It will have some diehard opposition. It will reflect a lot of listening, reflecting and best intentions. But it won’t be perfect, in the sense of meeting every contingency, because the law can’t do that. The wide range of possible human situations inevitably reveals our limitations when making law.

A case of non-voluntary mercy killing

Last month a 93-year-old Canberra man was sentenced in the Supreme Court for the pillow suffocation of his wife of 69 years. She was suffering from dementia, as is he. She did not ask to be killed. He took the initiative (as “an act of love”), making this a non-voluntary “mercy killing”. That means it is murder.

If his wife had not been demented and had asked him to kill her, then this would have been a voluntary “mercy killing” and it is likely that the sentence would have been less.

If his wife had not been demented and had asked him to assist her so that she could kill herself, then the case would be one of assisted suicide, for which the maximum punishment is much less than murder. 

The ACT Crimes Act provides in Section 17 that:

(1) A person who aids or abets the suicide or attempted suicide of another person is guilty of an offence punishable… by imprisonment for 10 years.

(2) If—(a) a person incites or counsels another person to commit suicide; and

(b) the other person commits, or attempts to commit, suicide as a consequence of that incitement or counselling;

the first mentioned person is guilty of an offence punishable… by imprisonment for 10 years.

To grasp how these provisions work consider the following two examples: 

First, a couple have been together for decades. They still care for each other but recognise their daily worsening physical and mental states. Because neither wishes to be without the other they agree to die together. Wishing to ease the burden on their family they leave detailed notes as to why, how and when they will end their lives. 

Fate intervenes. One dies, one survives.

The survivor is charged with both parts of section 17 as alternatives.

By the time the case comes to hearing the survivor is terminally ill and destined for end-of-life hospice care within weeks. The prosecution accepts a plea of guilty to “aid or abet” (the first alternative).

The survivor is now bedridden. Nevertheless, the case is not adjourned until a date – not far distant – when s/he will be beyond the reach of human justice. Instead, the survivor watches their sentencing from their hospital bed.

The sentencing judge applies the law. There is a sentence of imprisonment. It’s a serious offence, too serious for a suspended sentence (sentenced to jail but does not go to jail).

“Justice” is seen to be done; however, as Portia – disguised as a lawyer – says to Shylock in Shakespeare’s Merchant of Venice:

“The quality of mercy is not strained;
It droppeth as the gentle rain from heaven

(The meaning of “strained” in today’s English would be “constrained” or “limited”).

Second, two young adults, A and B are living together. Both are frequent users of illicit drugs. 

B’s parents suspect that B, their only child, is under the coercive control of A; however, when they raise the topic on a rare occasion when they can speak to B alone, B tells them to butt out.

Several months later A calls an ambulance but it is too late. B has overdosed. This happens within a week of B sending their parents a text: “I got lucky on Lotto. A is demanding that I put the winnings into A’s bank account. I won’t do it. I’m going to rehab and then I’m going back to uni.”

A tells the police that B had been behaving strangely in the weeks before B’s death. B had given A the lottery winnings and said: “Put this in your account. I don’t want my parents or the government to have it after I’ve gone”. 

A says that B’s death was either suicide or an accident, more likely suicide because A used the same supplied drug. 

Police inquiries find nothing to substantiate B’s parents’ strong conviction that this was not an accidental death or a premeditated suicide. Rather, in their minds, it was murder by A administering an overdose, or A had incited B to commit suicide.

An inquest finds that it is not possible to determine which of accidental death or suicide applies. There is a finding that there is no evidence upon which the case should be referred to prosecutors. That is, there is a lack of evidence that links an act or omission by A to B’s untimely death.

B’s parents live in a private hell on earth. A slow decade passes. Unexpectedly they receive a note from the local hospice. A dying patient, now dead, had asked the hospice to make sure it got to them. It is A’s dying confession to inducing B to commit suicide so that A would have sole use of the Lotto winnings.

From these two examples we can see that the simple words of the Crimes Act don’t necessarily entail neat and tidy outcomes.

Uncertainty is the only certainty

For those seeking more, much more information on how law, compassion, and morals interact in such cases there is an enlightening, wide-ranging article here, published in 2022, that examines Australian courts’ sentencing, not only in ‘assisted suicide’ but also ‘mercy killing’ cases over some 40 years. ACT cases are included, such as a 2011 case where two heroin users entered into a suicide pact. She died and he survived. He went to jail. 

More recently, in April 2019, a Canberran admitted to assisting his wife (who was in the terminal stages of motor neurone disease) to commit suicide before her disease robbed her of the capacity to do so. Our then Director of Public Prosecutions, Shane Drumgold SC, exercised his discretion not to prosecute, that decision being in the public interest

The director explained his reasons in a public statement. He concluded that, “there are reasonable prosects of conviction: with the knowledge of the impending suicide, the defendant intentionally assisted in modifying an implement that was used to bring about the death…”

He went on to explain, however, that, “the assistance offered was minimal, motivated wholly by love and compassion, and designed to ensure that the deceased’s death was quick and painless. Had the defendant not made minor modifications to an item used in the suicide, death would have still resulted, however, it may have been prolonged, resulting in a highly distressing process for the deceased.”

And,“I consider the consequences of any resulting conviction for the offence would be unduly harsh and oppressive… Although the defendant was present for the deceased’s death, he stated that this was because he loved the deceased and did not want her to endure the trauma of death alone.”

I suspect that the reader who induced this article was motivated to ask for it by a personal tragedy. The search for hope and meaning never ends.

I end this article on a note of indecisiveness. For more than 60 years I have admired a colleague who bested me on so many fronts: school, sport, academic achievement, financial and career success.

Cancer cut him down, repeated hospitalisations, but he survived with the strong chance of a recurrence. Casually he told me and others that if it came back he would never go to a hospital. He had obtained the necessary equipment to cross to the other side when and as he chose. 

I wonder, if I was to drop by his home (not in the ACT) and find him hooked up, but still alive, whether I would call 000, disconnect all the equipment, and do all that I could to keep him alive.

Our Crimes Act, in section 18, allows me to use all reasonable force to prevent his suicide. Let’s assume there is a similar provision where he lives.

But would I do it? I don’t know. I won’t know unless it happens. If I don’t do anything, would I then have aided and abetted (that is, assisted) his suicide?

Former barrister Hugh Selby is the CityNews legal columnist. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.