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Legal Standards for Brain Death and Undue Influence in Euthanasia Laws

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Abstract

A major appellate court decision from the United States seriously questions the legal sufficiency of prevailing medical criteria for the determination of death by neurological criteria. There may be a mismatch between legal and medical standards for brain death, requiring the amendment of either or both. In South Australia, a Bill seeks to establish a legal right for a defined category of persons suffering unbearably to request voluntary euthanasia. However, an essential criterion of a voluntary decision is that it is not tainted by undue influence, and this Bill falls short of providing adequate guidance to assess for undue influence.

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Notes

  1. See South Australia, Hansard, House of Assembly, 27 July 1995, 2991; South Australia, Hansard, Legislative Council, 11 November 2009, 4035.

  2. The Northern Territory, Australia, was the first jurisdiction in the world to legalize voluntary euthanasia as an Act of Parliament; see Rights of the Terminally Ill Act 1995 (NT). However, due to Australia’s Constitutional Arrangements, the Commonwealth Government limited the scope of the Territories’ legislative power to restrict them from enacting laws to legalize voluntary euthanasia or physician-assisted suicide; see Euthanasia Laws Act 1997 (Cth). The Australian States fall outside the purview of this exercise of Federal Power, so it is unlikely that the Commonwealth Government will be able to repeal any euthanasia statute passed by the states.

References

  • Lu, A. 2010. End of life directions and self determination—H Ltd v J. Australian Health Law Bulletin 18(7): 93–108.

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  • White, B.P., L. Willmott, and M. Ashby. 2011. Palliative care, double effect and the law in Australia. Internal Medicine Journal 41(6): 485–492.

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Authors and Affiliations

  1. Mitchell Hamline School of Law, 875 Summit Ave, Saint Paul, Minnesota, 55105, USA

    Thaddeus Mason Pope

  2. Law School, University of Adelaide, North Terrace, Adelaide, 5005, Australia

    Michaela E. Okninski

Authors
  1. Thaddeus Mason Pope
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  2. Michaela E. Okninski
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Correspondence to Thaddeus Mason Pope or Michaela E. Okninski.

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Pope, T.M., Okninski, M.E. Legal Standards for Brain Death and Undue Influence in Euthanasia Laws. Bioethical Inquiry 13, 173–178 (2016). https://doi.org/10.1007/s11673-016-9718-0

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  • DOI: https://doi.org/10.1007/s11673-016-9718-0

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