Palliative care, double effect and the law in Australia

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death. In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care

Interveners or Interferers: Intervention in Decisions to Withhold and Withdraw Life-Sustaining Medical Treatment

This article considers intervention in proceedings about withholding and withdrawing life-sustaining medical treatment. Since the early 1990s, there have been a number of important decisions, both in Australia and overseas, about whether life-sustaining treatment should be withheld or withdrawn from an adult who no longer has capacity to make the decision for himself or herself. In almost all of these decisions, intervention by a non-party to the matter has been an issue. This article explores the rules of intervention in applications to appear as a party and as amicus curiae, and considers those rules in the context of decisions to withhold and withdraw life-sustaining medical treatment. The relevant cases are examined as are the advantages and disadvantages of intervention in these circumstances. The article concludes by suggesting a model for intervention that strikes the appropriate balance between ensuring all relevant issues are placed before the court while still respecting the intensely private nature of a decision to withhold or withdraw a life-sustaining measure in any given case

The legal role of medical professionals in decisions to withhold or withdraw life sustaining treatment: Part 3 (Victoria)

This is the final article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Victoria. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals’ legal knowledge in this area. The article examines the level of training that medical professionals receive on issues such as refusal of treatment certificates and substitute decision-making, and the available empirical evidence as to the state of medical professionals’ knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Victoria. The article also draws together themes from the series as a whole, including conclusions about the need for more and better medical education and about law reform generally

Next Up: A Proposal for Values-Based Law Reform on Unilateral With-Holdings and Withdrawal of Potentially Life-Sustaining Treatment

As the legalization of assisted dying shifts from a project for law reform to one ofimplementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateralwithholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well as a number of other countries (e.g., the United States, Australia, and New Zealand) and a more distant horizon (but inevitable) issue for many other countries as they move beyond the debate of whether to even withholding or withdrawal of potentially life-sustaining treatment (e.g., South Korea).In this paper, we attempt to take a step back from the drama and vitriol surrounding conflict that can arise when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should. We suggest and model an approach to law and policy reform in this area. To that end, we begin with a review of what is known about what is going on in relation to unilateral withholding and withdrawal of treatment (without the consent or knowledge of the patient or patient\u27s substitute decision-maker) demonstrating that: it is happening; it is controversial; it is being challenged in courts; and it is not being approached by the law in the same way in every country (or indeed, even in the same way within a country). We then present a process for pursuing law reform, exploring Canada as a case study, to provide a model strategy for approaching law reform in other countries and to advance the project of law reform in Canada. To that end, we reflect on the fundamental values that should underpin a legal framework for decision-making on whether potentially life-sustaining treatment should be withheld or withdrawn. These values and the ways to balance these values against each other are drawn from the constitution, legislation, the common law, conventions and treaties that have been ratified by Canada, and “fundamental values of Canadian society” within which the ethical debate about the unilateral withholding and withdrawal of potentially life-sustaining treatment is situated. We then develop a proposal for how the law could be reformed such that it will more closely align with thefundamental values it is supposed to serve. We hope that in the end, this proposal might help us to move forward from friction to accord and, ultimately, to a future of better care for both the living and the dying

Autonomy versus futility? Barriers to good clinical practice in end-of-life care: a Queensland case

Findings from a Queensland coronial inquest highlight the complex clinical, ethical and legal issues that arise in end-of-life care when clinicians and family members disagree about a diagnosis of clinical futility. The tension between the law and best medical practice is highlighted in this case, as doctors are compelled to seek family consent to not commence a futile intervention. Good communication between doctors and families, as well as community and professional education, is essential to resolve tensions that can arise when there is disagreement about treatment at the end of life

Withholding and withdrawing life-sustaining treatment in a patient's best interests: Australian judicial deliberations

•Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases. •A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested. •There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests. •Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions

Doctors' knowledge of the law on withholding and withdrawing life-sustaining medical treatment

Objectives To examine the level of knowledge of doctors about the law on withholding and withdrawing life-sustaining treatment from adults who lack decision-making capacity, and factors associated with a higher level of knowledge. Design, setting and participants Postal survey of all specialists in emergency medicine, geriatric medicine, intensive care, medical oncology, palliative medicine, renal medicine and respiratory medicine on the AMPCo Direct database in New South Wales, Victoria and Queensland. Survey initially posted to participants on 18 July 2012 and closed on 31 January 2013. Main outcome measures Medical specialists’ levels of knowledge about the law, based on their responses to two survey questions. Results Overall response rate was 32%. For the seven statements contained in the two questions about the law, the mean knowledge score was 3.26 out of 7. State and specialty were the strongest predictors of legal knowledge. Conclusions Among doctors who practise in the end-of-life field, there are some significant knowledge gaps about the law on withholding and withdrawing life-sustaining treatment from adults who lack decision-making capacity. Significant consequences for both patients and doctors can flow from a failure to comply with the law. Steps should be taken to improve doctors’ legal knowledge in this area and to harmonise the law across Australia

Advance health directives: competing perceptions, intentions and use by patients and doctors in Queensland

This paper reports on mixed method empirical research undertaken with individuals who have completed advance health directives ('principals') and doctors who have either attested to the principal's capacity when the document was completed or been called upon to use these documents in clinical settings. Principals and doctors appear to have different understandings of the purpose of these documents and their role in decision-making about medical treatment. We recommend changes to the advance health directive form in Queensland to promote informed decision-making which will help to better align perceptions of principals and doctors about the role of these documents

Does voluntary assisted dying cause public stigma for the bereaved?:A vignette-based experiment

Objective Studies in countries where assisted dying is legal show that bereaved people express concern over the potential for social disapproval and social stigma because of the manner of death. There are indications that voluntary assisted dying is judged as less acceptable if the deceased is younger. A vignette-based experiment was used to determine whether public stigma (i.e., negative emotional reactions and desired social distance) and expected grief symptoms are higher for conjugally bereaved people through voluntary assisted dying (vs. long-term illness), when the deceased is a young adult (vs. older adult). Method A 2 × 2 randomized factorial design was conducted with 164 Australian adults (130 women, 34 men, Mage = 37.69 years). Each participant was randomized online to read one of four vignettes and completed measures of anger, fear, prosocial emotions, desire for social distance, and expectations of grief symptomatology. Results A multivariate analysis of variance (MANOVA) was conducted. Death at a young age (28 years) was significantly associated with stronger negative emotional reactions of fear (η2p = 0.048) and anger (η2p = 0.010). There were no differences in outcomes associated with the mode of death, nor was there an interaction between mode of death and age group. Significance of results Concerns that voluntary assisted dying elicits public stigma appear unfounded. The fact that participants reported significantly higher anger and fear in response to bereaved people experiencing loss at a younger (vs. older) age, irrespective of cause of death, indicates that young people who lose their spouse might benefit from additional support. </p