TITLE 16 CRIMES AND OFFENSES

Section 5. Crimes Against the Person, 16-5-1 through 16-5-110.

ARTICLE 1 HOMICIDE

16-5-5. Assisted suicide; notification of licensing board regarding violation.

As used in this Code section, the term:
1. "Assists" means the act of physically helping or physically providing the means.
2. "Health care provider" means any person licensed, certified, or registered under Chapter 9, 10A, 11, 11A, 26, 28, 30, 33, 34, 35, 39, or 44 of Title 43.
3. "Suicide" means the intentional and willful termination of one's own life.
Any person with actual knowledge that a person intends to commit suicide who knowingly and willfully assists such person in the commission of such person's suicide shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than ten years.
The provisions of this Code section shall not apply to:
1. Pursuant to a patient's consent, any person prescribing, dispensing, or administering medications or medical procedures when such actions are calculated or intended to relieve or prevent such patient's pain or discomfort but are not calculated or intended to cause such patient's death, even if the medication or medical procedure may have the effect of hastening or increasing the risk of death;
2. Pursuant to a patient's consent, any person discontinuing, withholding, or withdrawing medications, medical procedures, nourishment, or hydration;
3. Any person prescribing, dispensing, or administering medications or medical procedures pursuant to, without limitation, a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14, or a consent pursuant to Code Section 29-4-18 or 31-9-2 when such actions are calculated or intended to relieve or prevent a patient's pain or discomfort but are not calculated or intended to cause such patient's death, even if the medication or medical procedure may have the effect of hastening or increasing the risk of death;
4. Any person discontinuing, withholding, or withdrawing medications, medical procedures, nourishment, or hydration pursuant to, without limitation, a living will, a durable power of attorney for health care, an advance directive for health care, a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14, a consent pursuant to Code Section 29-4-18 or 31-9-2, or a written order not to resuscitate; or
5. Any person advocating on behalf of a patient in accordance with this subsection.
Within ten days of a conviction, a health care provider who is convicted of violating this Code section shall notify in writing the applicable licensing board for his or her licensure, certification, registration, or other authorization to conduct such health care provider's occupation. Upon being notified and notwithstanding any law, rule, or regulation to the contrary, the appropriate licensing board shall revoke the license, certification, registration, or other authorization to conduct such health care provider's occupation.

(Code 1981, §16-5-5, enacted by Ga. L. 2012, p. 637, § 1/HB 1114; Ga. L. 2015, p. 305, § 3/SB 109.)

Effective date.

- This Code section became effective May 1, 2012.

The 2015 amendment, effective July 1, 2015, inserted "a Physician Orders for Life-Sustaining Treatment form pursuant to Code Section 31-1-14," near the middle of paragraphs (c)(3) and (c)(4).

Cross references.

- Notification of licensing boards of judgments against health care provider, § 51-4-6.

Editor's notes.

- Ga. L. 2007, p. 133, § 1, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

Former Code Section 16-5-5, concerning offering to assist in commission of suicide and criminal penalties therefor, was based on Ga. L. 1994, p. 1370, § 1; Ga. L. 2007, p. 133, § 5/HB 24 and was repealed by Ga. L. 2012, p. 637, § 1/HB 1114, effective May 1, 2012.

Ga. L. 2012, p. 637, § 4/HB 1114, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before the effective date of this Act." This Act became effective May 1, 2012.

Law reviews.

- For article, "Death Penalty Law," see 53 Mercer L. Rev. 233 (2001). For article, "Medical Decision-Making in Georgia," see 10 Ga. St. B.J. 50 (No. 7, 2005). For article, "Looking for a Way Out: How to Escape the Assisted Suicide Law in England," see 24 Emory Int'l L. Rev. 697 (2010). For article on the 2012 enactment of this Code section, see 29 Ga. St. U.L. Rev. 278 (2012). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For note on the 1994 enactment of this Code section, see 11 Ga. St. U.L. Rev. 103 (1994). For note, "Compassion in Dying v. Washington: A Resolution to the 'Jurisprudence of Doubt' Enshrouding Physician-Assisted Suicide?," see 47 Mercer L. Rev. 1145 (1996). For note, "People v. Kevorkian: Michigan's Supreme Court Leads the Way in Declaring No Fundamental Right to Assist Another in Suicide," see 47 Mercer L. Rev. 1191 (1996).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 16-5-5 are included in the annotations for this Code section.

O.C.G.A.

§ 16-5-5(b) unconstitutional. - Former O.C.G.A. § 16-5-5(b) was unconstitutional under the free speech provisions of the United States and Georgia Constitutions, U.S. Const., Amend. 1 and Ga. Const. 1983, Art. I, Sec. I, Para. V, because it was not all assisted suicides that were criminalized but only those that include a public advertisement or offer to assist; because the state failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity was sufficiently problematic to justify an intrusion on protected speech rights, it could not, consistent with the United States and Georgia Constitutions, make the public advertisement or offer to assist in a suicide a criminal offense. Final Exit Network, Inc. v. State, 290 Ga. 508, 722 S.E.2d 722 (2012) (decided under former O.C.G.A. § 16-5-5).

Execution of defendant was not assisted suicide.

- Fact that the defendant agreed with the jury's determination that defendant's crimes deserved death did not mean that defendant's execution would constitute assisted suicide. Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001), cert. denied, 534 U.S. 972, 122 S. Ct. 394, 151 L. Ed. 2d 298 (2001) (decided under former O.C.G.A. § 16-5-5).

RESEARCH REFERENCES

ALR.

- Validity of criminalization of urging or assisting suicide under state statutes and common law, 96 A.L.R.6th 475.

Cases Citing O.C.G.A. § 16-5-5

Total Results: 9 | Sort by: Relevance | Newest First

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Colwell v. State, 544 S.E.2d 120 (Ga. 2001).

Cited 41 times | Published | Supreme Court of Georgia | Mar 2, 2001 | 273 Ga. 634

...Any person who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.... OCGA § 16-5-5(b)....

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Rashid v. State, 292 Ga. 414 (Ga. 2013).

Cited 18 times | Published | Supreme Court of Georgia | Jan 22, 2013 | 737 S.E.2d 692, 2013 Fulton County D. Rep. 113

...12, provided: A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper. Former OCGA § 16-5-5 (b) was in effect at the time of trial....

...In Final Exit Network, Inc. v. State of Ga., 290 Ga. 508 (722 SE2d 722) (2012), this Court struck down the statutory-provision as violative of the free speech clauses of the Federal and State Constitutions. Thereafter, the General Assembly enacted a new OCGA § 16-5-5, effective May 1, 2012, which directly criminalizes assisted suicide....

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Final Exit Network, Inc. v. State, 290 Ga. 508 (Ga. 2012).

Cited 8 times | Published | Supreme Court of Georgia | Feb 6, 2012 | 722 S.E.2d 722, 2012 Fulton County D. Rep. 348

Thompson, Justice. In 1994, the Georgia legislature enacted OCGA § 16-5-5 (b), which provides that any person “who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.” Violation of the statute is punishable by imprisonment for not less than one nor more than five years. OCGA § 16-5-5 (b). The issue in this case is whether OCGA § 16-5-5 (b) is constitutional under the free speech clauses of the federal and state constitutions. Appellants Final Exit Network, Inc....

...(“FEN”), Thomas Goodwin, Lawrence Egbert, Nicholas Sheridan, and Claire Blehr were indicted in March 2010 by a Forsyth County grand jury on charges of, inter alia, offering to assist and assisting in the commission of suicide in violation of OCGA § 16-5-5 (b). Appellants pled not guilty and filed demurrers and motions to dismiss the OCGA § 16-5-5 (b) charges on the ground that the statute was unconstitutional on its face in violation of several constitutional provisions, including the free speech clauses of the United States1 and Georgia Constitutions.2 The trial court denied the motions but granted appellants a certificate of immediate review. We granted appellants’ application for interlocutory appeal to consider their constitutional challenges. Because we conclude OCGA § 16-5-5 (b) is unconstitutional under the free speech clauses of both constitutions, we reverse. 1....

...government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” (Punctuation omitted.) Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (122 SC 1700, 152 LE2d 771) (2002). By its plain language, however, OCGA § 16-5-5 (b) proscribes speech *509based on content in that it restricts anyone who “publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of...

...781, 791 (109 SC 2746, 105 LE2d 661) (1989) (“The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of a disagreement with the message it conveys.”). 2. As a content based restriction on speech, OCGA § 16-5-5 (b) will stand only if it satisfies a strict level of constitutional scrutiny....

...curtailment of free speech must be actually necessary to the solution, [cit.] That is a demanding standard. ‘It is rare that a regulation restricting speech because of its content will ever be permissible.’ [Cit.]” Id. The State contends OCGA § 16-5-5 (b) was intended to “criminalize assisted suicide in certain instances” and that the statute’s restriction on speech is justified by the State’s “compelling interest in preventing suicide.” While a State’s interest in preserving human life would be compelling, OCGA § 16-5-5 (b) is not narrowly tailored to promote this asserted interest. See Washington v. Glucksberg, 521 U. S. 702, 728-729 (117 SC 2258, 138 LE2d 772) (1997) (assisted suicide ban is an expression of State’s commitment to protection of human life). Although the State attempts to portray OCGA § 16-5-5 (b) as simply a ban on assisted suicide, the clear language of the statute demonstrates otherwise. It is undisputed that OCGA § 16-5-5 (b) does not ban assistance in all suicides, conduct which by itself is legal in Georgia. Many assisted suicides are either not prohibited or are expressly exempted from the ambit of OCGA § 16-5-5 (b)’s criminal sanctions. See OCGA § 16-5-5 (d). Nor does OCGA § 16-5-5 (b) render illegal all advertisements or offers to assist in a suicide. Individuals who offer to assist in the commission of a suicide in a less than “public” manner are not covered, despite the fact that such communication might have the same consequences as a public offer. *510Rather, as the State admits, OCGA § 16-5-5 (b) was carefully drafted and intentionally enacted for the purpose of preventing a “Dr....

...43, 51 (114 SC 2038, 129 LE2d 36) (1994); Florida Star v. B. J. F, 491 U. S. 524, 540 (109 SC 2603, 105 LE2d 443) (1989); Cunningham v. State, 260 Ga. 827, 832 (400 SE2d 916) (1991) (recognizing First Amendment implications of underinclusive statute). The State argues OCGA § 16-5-5 (b) is narrowly tailored because it reaches only those who publicly offer to assist in suicide and then, in fact, undertake an overt act to accomplish that goal....

...and its deterrent effect on legitimate expression is both real and substantial.” (Citations omitted.) Erznoznik, supra, 422 U. S. at 216. See Gravely v. Bacon, 263 Ga. 203, 206 (429 SE2d 663) (1993). In this case, both the object and plain language of OCGA § 16-5-5 (b) make it insusceptible to a limiting construction. We will not rewrite a law “to conform it to constitutional requirements.” Virginia v. American Booksellers Assn., 484 U. S. 383, 397 (108 SC 636, 98 LE2d 782) (1988). Accordingly, we conclude OCGA § 16-5-5 (b) restricts speech in violation of the free speech clauses of both the United States and Georgia Constitutions. The order of the trial court holding otherwise is hereby reversed. 4. Because we conclude OCGA § 16-5-5 (b) is unconstitutional under the free speech provisions of the United States and Georgia Constitutions, we do not consider appellants’ other constitutional challenges. Judgment reversed. Hunstein, C....

...provides: “No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.” In this regard, OCGA § 16-5-5 (b) is distinguishable from the statute upheld in *511Christensen v....

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Rigsby v. State, 829 S.E.2d 93 (Ga. 2019).

Cited 4 times | Published | Supreme Court of Georgia | Jun 3, 2019 | 306 Ga. 38

...n found guilty but mentally ill of murder, that "his fragile mental state" should be considered, because "the legislature has prescribed an objective standard for determining when a defendant is entitled to a charge on voluntary manslaughter"); OCGA § 16-5-5 (b) (making it a felony to knowingly and willfully assist a suicide). Thus, Appellant was not legally entitled to a jury instruction on voluntary manslaughter based on either of the theories he asserted in the trial court, and we see no other basis for such an instruction in the trial evidence....

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In Re Hanes, 676 S.E.2d 167 (Ga. 2009).

Cited 3 times | Published | Supreme Court of Georgia | Apr 28, 2009 | 285 Ga. 293, 2009 Fulton County D. Rep. 1489

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Rigsby v. State, 306 Ga. 38 (Ga. 2019).

Published | Supreme Court of Georgia | Jun 3, 2019

...but mentally ill of murder, that “his fragile mental state” should be considered, because “the legislature has prescribed an objective standard for determining when a defendant is entitled to a charge on voluntary manslaughter”); OCGA § 16-5-5 (b) (making it a felony to knowingly and wilfully assist a suicide). Thus, Appellant was not legally entitled to a jury instruction on voluntary manslaughter based on either of the theories he asserted in the trial court, and we see no other basis for such an instruction in the trial evidence....

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