Decriminalising Physician-Assisted Suicide in Singapore
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(2010) 22 SAcLJ Decriminalising Physician-assisted Suicide 379 DECRIMINALISING PHYSICIAN-ASSISTED SUICIDE IN SINGAPORE This article evaluates the primary reasons for and against the decriminalisation of physician-assisted suicide of terminally- ill patients. It contends that the benefits of decriminalisation outweigh the harms, and sets out to formulate legislation for adoption in Singapore based on the best features of the regulatory models devised by the Netherlands, Oregon and the Northern Territory of Australia. ∗ TOH Puay San LLB (Hons) (National University of Singapore); Deputy Public Prosecutor, Attorney General’s Chambers, Singapore. Stanley YEO LLB (Hons) (University of Singapore), LLM (Wellington), LLM, PhD, LLD (Sydney); Professor of Law, National University of Singapore. I. Introduction 1 Every human being must confront death at some point in their lives. Due to the advances in modern medical technology, ways have been found to prolong life and delay death. However, this does not necessarily result in human lives being enriched in a full and meaningful manner because, in some cases, it merely lengthens the physical or biological existence of a person. Many people do not fear death as much as they fear the “tragic figure”1 they may become before death. In order to minimise their suffering and to honour their dignity, these people should be afforded more control over the timing and manner of their deaths. 2 In Singapore, the Advance Medical Directive Act2 gives Singaporeans some control over their deaths by allowing a person of sound mind to sign an advance medical directive (“AMD”) declaring that he or she does not wish to receive extraordinary life-sustaining ∗ The views expressed in this article are those of the author’s alone, and not representative of the official views of the Attorney General’s Chambers. 1 M Cheang, “Voluntary Euthanasia” (1977) 18 Singapore Medical Journal 265 at 266. 2 Cap 4A, 1997 Rev Ed. 380 Singapore Academy of Law Journal (2010) 22 SAcLJ treatment in the event of terminal illness. As our ageing population3 grows, more measures need to be put in place to deal with end-of-life issues. Recently, Health Minister Khaw Boon Wan expressed that “ageing will throw up many more human stories of agony and suffering”.4 The Minister’s remarks have spawned a public debate over whether voluntary active euthanasia (“VAE”) should be legalised.5 The Ministry of Health has announced plans to make the process of signing the AMD less complicated and to expand palliative care systems in Singapore. Importantly, however, it is observed that although optimum palliative care might minimise physical pain, it cannot remove the strong sense of helplessness and mental or emotional anguish that some patients experience as a result of the progressive deterioration of their bodies.6 3 This article argues that the options available to dying patients need to be increased. In the event that palliative care is unable to meet a patient’s need of having his or her physical, mental or emotional health attended to adequately, the patient ought to have another option – physician-assisted suicide (“PAS”). While a patient has made the decision to end his or her life, he or she may not have the knowledge or means to do so in a painless and dignified manner and would require help. Assistance from physicians is more desirable than that from laypersons due to the former’s medical training and access to drugs and equipment. Such assistance would also provide the patient with 3 It has been reported that between now and 2030, Singapore will witness an unprecedented profound age shift. In 2012, the first batch of baby boomers (those born between 1947 and 1964) will reach 65 years of age. By 2030, the number of residents aged 65 years or older will multiply threefold from the current 300,000 to 900,000. This means that one out of every five residents will be a senior. See further Committee on Ageing Issues, Report on the Ageing Population (3 February 2006), available at <http://www.mcys.gov.sg/successful_ageing/report/CAI_report.pdf> (accessed 23 January 2010). 4 P Forss, “S’pore to expand palliative care systems to deal with ageing population” Channel NewsAsia (14 October 2008), online: Channel NewsAsia, available at <http://www.channelnewsasia.com/stories/singaporelocalnews/view/ 382729/1/.html> (accessed 23 January 2010). Subsequently, Mr Khaw said that, while his Ministry encouraged “public discussion of death and end-of-life matters, it was not promoting PAS but palliative care for the terminally ill”: S Khalik, “Health Minister against planned euthanasia talk” The Straits Times (25 April 2009) at p A18. 5 For example, see “Can you please kill me?” Special report on euthanasia, Sunday Times (26 October 2008) at p 6; R Basu, “Helping the dying with living” The Straits Times (5 November 2008) at p A8; “Euthanasia no substitute for palliative care” The Straits Times (6 November 2008) at p A26; R Basu, “Allowing euthanasia is no panacea” The Straits Times (15 November 2008), at p A25; J Yeo & M Mohan, “Right to die – or licence to kill?” The Straits Times (24 December 2008) at p A15. 6 E Jackson, “Death, Euthanasia and the Medical Profession” in Death Rites and Rights (B Brooks-Gordon et al eds) (Hart Publishing, 2007) at pp 44–46. (2010) 22 SAcLJ Decriminalising Physician-assisted Suicide 381 information about his or her prognosis and options, together with psychological support.7 4 The thrust of this article is that Singapore should decriminalise assisted suicide performed by physicians on terminally-ill patients facing imminent death, suffering unbearably, and holding the conviction that there is no other reasonable solution for the situation they are in. To this end, the authors have drafted a statute which incorporates the best features of the laws and regulations of three jurisdictions which have legalised PAS. In doing so, the authors should not be seen as arguing against improvements in palliative care and its utilisation; if patients prefer such care, their choice must be respected. Indeed, it is proposed that, as a pre-condition of PAS, a patient must undergo palliative care. Neither should this proposal to decriminalise PAS be viewed as a prelude to the decriminalisation of VAE. To this issue we now turn. II. Decriminalising physician-assisted suicide but not voluntary active euthanasia 5 Among the many forms of medical intervention that shorten life, PAS and VAE are the methods that are most frequently discussed. Although they have much in common, it is contended that significant distinctions can be drawn and the legalisation of PAS is to be preferred over VAE. In both PAS and VAE, the patient forms an intention to die and the physician intentionally helps the patient to end his or her life. However, in PAS, the patient makes the final decision and performs the fatal act, that is, he or she is the “final causal actor”8 in his or her own death. As such, PAS is an expression of the patient’s autonomy, right to self-determination, and control. Conversely, although the patient similarly forms an intention to die in cases of VAE, the physician performs the final act and this creates a greater risk of physician malfeasance. 6 Accordingly, the underlying premise for advocating the decriminalisation of PAS is that it was the patients themselves, and not the physician, who had made the decision to terminate their own lives, and who had themselves done the act which terminated it. This double act by the patient of requesting assistance to commit suicide and following up with committing suicide, sets it apart from VAE where only the first act of the patient is present. In this regard, it is noteworthy that, 7 T Cipriani, “Give Me Liberty and Give Me Death” (1995–1996) 3 Journal of Law and Medicine 177 at 183. Such support excludes a physician encouraging his or her patient to opt for PAS. It will be proposed below that physicians should be legally prohibited from offering such encouragement. 8 N Gorsuch, The Future of Assisted Suicide and Euthanasia (Princeton University Press, 2006) at p 6. 382 Singapore Academy of Law Journal (2010) 22 SAcLJ in the Netherlands where both PAS and VAE by physicians are legalised, medical guidelines call for assisted suicide to be preferred over euthanasia because it “makes the patient’s determination and willingness to take responsibility clearer”.9 This extra “firewall” renders PAS a limited activity which can be safely legalised and controlled without automatically leading to the legalisation of VAE.10 III. The current law and its constitutional validity 7 Although suicide is not an offence in Singapore, attempted suicide is by virtue of s 309 of the Penal Code.11 That section, when read together with the abetment provision of s 107 of the Code, makes the abetting of attempted suicide a crime.12 Where the attempt to commit suicide succeeds, s 306 of the Code makes the abetment of suicide a crime.13 8 PAS is criminalised in Singapore on account of these provisions. Thus, a physician who aids a patient in ending his or her life would be subject to prosecution. A physician’s liability would not be absolved by s 88 of the Penal Code which provides that it is not an offence to commit an act which is not intended to cause death that was done with the consent of the person harmed, in good faith for the benefit of that person.14 A physician engaged in PAS cannot plead this exception 9 Royal Dutch Medical Association (KNMG), Position of the Federal Board of the KNMG concerning Euthanasia (KNMG, 2003) at p 9. 10 This fact persuaded the House of Lords in its First Report of the Select Committee on Assisted Dying for the Terminally Ill (TSO, 2005) to recommend legalising only PAS in its second Assisted Dying Bill.