THE CASE AGAINST PHYSICIAN-ASSISTED SUICIDE AND VOLUNTARY ACTIVE EUTHANASIA

• Citation: (2017) 29 SAcLJ 375
• Published date: 01 December 2017
• Date: 01 December 2017

A Jurisprudential Consideration

Twenty years after the Advance Medical Directive Act came into force in Singapore, the issue of the legalisation of physician-assisted suicide and voluntary active euthanasia remains live. By examining jurisprudential arguments, this article makes a case against legalisation. In particular, it is important to address the points raised in the article by Toh Puay San and Stanley Yeo, “Decriminalising Physician-assisted Suicide in Singapore”, as it is possibly the most comprehensive local article on this subject and includes draft legislation for legalisation in Singapore. As Toh and Yeo also considered the arguments often raised in debates on euthanasia, it is apposite to approach the jurisprudential consideration by countering their arguments. In conclusion, the contention of Toh and Yeo that the benefits of allowing terminally-ill patients the option of physician-assisted suicide far outweigh the harms is not supported. A fortiori, voluntary active euthanasia should not be legalised.

I. Introduction

1 The Advance Medical Directive Act1 (“AMDA”) has been in force in Singapore for 20 years. The AMDA states that it does not “condone, authorise or approve abetment of suicide, mercy killing or euthanasia”.2 Abetment of suicide remains an offence under ss 305 and 306 of the Penal Code,3 while attempted suicide is an offence under s 309. What is facilitated by the AMDA is an act that permits the dying

process to take its natural course, as contrasted with an act that causes or accelerates death.4 The question whether physician-assisted suicide5 (“PAS”) and voluntary active euthanasia6 (“VAE”) should be legalised in Singapore has been debated in the public square time and again. The central question of the debate is whether the law should facilitate an individual's desire to end his life within a general context that “reverences human life”.7

2 Amongst several articles dealing with this or related issues in Singapore's context in the last two decades, “Decriminalising Physician-assisted Suicide in Singapore” by Toh Puay San and Stanley Yeo8 stands out as they included draft legislation for regulating PAS in their advocacy for legalisation.9 Examining several arguments for and against

the decriminalisation of PAS, Toh and Yeo contended that the benefits of allowing terminally-ill patients the option of PAS far outweigh the harms.10 Toh and Yeo suggested decriminalisation would: (a) be in line with the role of criminal law; (b) reflect the pre-eminence of autonomy in a secular pluralistic society; (c) achieve consistency in the law in view of the AMDA; and (d) take into account the importance of quality of life and other practical considerations. They rejected the argument against decriminalisation that relates to the sanctity of life as being “largely based on religious beliefs”,11 which in their view are conflicting and should not influence the decision as to the legalisation of PAS in view of Art 15 of the Constitution of the Republic of Singapore.12 They also rejected the view that legalisation presents a problem in medical ethics. Finally, they argued that slippery slope concerns “are largely speculative”13 and that safeguards can be put in place to protect patients from making requests that are not “truly informed and voluntary”.14

3 When a question was asked in Singapore's Parliament in 200815 about whether euthanasia was being considered, the answer was in the negative.16 The question of legalisation of PAS and VAE, however, remains “live” in Singapore. The Chief Justice spoke on the topic for the Singapore Medical Association Lecture 2012.17 With advancement in medical technology allowing life to be extended, an aging population, as well as the legalisation of PAS and/or VAE in several other jurisdictions in the last few years, including the removal of the age restriction for euthanasia in Belgium in 2014,18 the question as to whether euthanasia in any form should be legalised in Singapore may again arise. This article will argue that PAS and VAE should not be legalised. Since Toh

and Yeo considered the main arguments relating to legalisation of euthanasia, and since it is this author's view, in particular, that their consideration of theory is inadequate and does not support their case for decriminalising PAS, their arguments will be used as a launchpad in this article for the consideration of jurisprudential debates.

4 In Part II, the contest between autonomy and quality of life, on the one hand, and sanctity of life, on the other, will be examined. Three issues will be considered, the: (a) philosophical debate relating to giving effect to autonomy in a pluralist society; (b) extent to which individual choices about fundamental matters concerning one's own life must be respected in view of the constitutional protection of religious liberty; and (c) difficulties relating to making a truly autonomous decision in such a context and what the implications are for the debate on legalisation. The first issue is the most important one in Part II, and indeed, is the one on which the rest of the debate pivots. This article will, however, not be making separate philosophical or ethical arguments for the sanctity of life, a topic which has been considered by many moral philosophers. Instead, the author's aim is to highlight what exactly is at stake in the contest between autonomy/quality of life and sanctity of life as contradictory values which proponents on both sides of the debate argue should be foundational for legal frameworks. In Part III, as Toh and Yeo referred to the role of criminal law in advocating decriminalisation, this article will explain how their arguments relating to the role of criminal law are inadequate and contentious, and how continued criminalisation based on the sanctity of life is consistent with an alternative, albeit contested, view of the role of criminal law, which they have not properly considered. In Part IV, the subordinate considerations related to the medical profession's likely involvement upon legalisation will be explored. These concerns are subordinate as the decisive arguments for the debate are those in the preceding Parts. Finally, the present article concludes that neither PAS nor VAE should be legalised.

II. Pitting autonomy and quality of life against sanctity of life in a pluralist society

5 The argument in favour of legalisation is based on autonomy and connected to the argument relating to the quality of life, as well as the denial of the sanctity of life. Toh and Yeo suggested that autonomy and individual freedom have priority in the absence of harm to others and in view of the pluralism of moral convictions, but at the same time rejected “death on demand”.19 Autonomy and mercy are seen as twin preconditions for allowing euthanasia, otherwise involuntary euthanasia could be permissible, or euthanasia could be offered to anyone, such as a lovesick teen, upon request.20 If the conditions of life are too bad, one should be allowed to seek release from misery, whether physical or psychic.21 Toh and Yeo regarded the value of sanctity of life as “largely based on religious beliefs”22 and not unanimously shared amongst the religious,23 and argued that laws should not be based on such a value. Quality of life is to be preferred as the determinant of when to permit PAS as it allows each person to die a dignified death. To deny the option of PAS would be “too inhumane, cruel and insulting”,24 particularly as some would end up attempting to die through other means, or physicians would help them die through administering pain-relieving drugs.25

6 There are three major issues raised by the arguments relating to autonomy. The first is whether autonomy should have priority over the contending value of sanctity of life in view of the plurality of moral convictions. The second issue is legal: it concerns the view of Toh and Yeo that individuals should be permitted to pursue their “religious or philosophical beliefs and values”26 in end-of-life matters, in view of the

constitutional guarantee of religious liberty. The third issue concerns the problems associated with the individual's choice and whether it might be problematically autonomous, should autonomy be given primacy. Each issue will be explored in turn.

A. Anti-perfectionistic liberalism and pre-eminence of autonomy 27

7 The argument founded on autonomy is crucial to proponents of legalisation. It seems at first blush attractive, especially if individual autonomy is pitted against the convictions of those who think PAS and VAE are wrong because they believe in the absolute value of the sanctity of life. As no one is forced to undergo PAS and VAE, why should others stop an individual who wants to die when he is not similarly morally convicted?

8 John Rawls's framework for the proper exercise of political power in a liberal society is arguably the best known of anti-perfectionist liberal theories that prioritise autonomy and refuse to ground laws in moral convictions as to what is good or what constitutes the good life. As Toh and Yeo claimed the pre-eminence of autonomy in a secular pluralistic society but offered little analysis, the application of Rawls's theory to laws relating to euthanasia shall be considered so that we can determine whether permissive euthanasia laws are jurisprudentially sound.

9 In Rawls's view, the deployment of political power is “fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason”.28 This would apply to the exercise of legislative power on basic questions of justice, such as whether to criminalise or legalise euthanasia. Rawls regarded as an advantage of his theory that his “political conception of justice”, while moral in nature, is not tied to any...