Issue 29 / 11 August 2014

NEW MJA research shows many doctors cannot identify a legally valid advance care directive and don’t know whether they are obliged to follow one that conflicts with their clinical judgement. (1)

The findings, based on a survey of 867 specialists in emergency medicine, geriatric medicine, intensive care, medical oncology, palliative medicine, renal medicine and respiratory medicine, suggest doctors are at risk of legal action for unlawfully withdrawing or withholding life-sustaining treatments, or providing treatments without consent, the study authors warned.

“For medical professionals, criminal responsibility could arise for murder or manslaughter … or for assault”, the researchers, led by Professor Ben White, director of the Australian Centre for Health Law Research at Queensland University of Technology, wrote.

“A lack of legal knowledge will not excuse a medical professional from liability.”

Doctors scored an average of 3.26 out of a possible score of seven in a knowledge test about the validity of advance directives and the laws surrounding substitute decisionmakers for patients without capacity.

Specialists in geriatric medicine and palliative medicine scored significantly higher in the knowledge test than specialists in emergency medicine and respiratory medicine.

The researchers said a major challenge was convincing doctors it was “worth the effort” to learn the complex law around end-of-life care, which differs between states and territories.

“In some situations a doctor may be obliged to follow an advance directive in one state but will be in breach of the law if he or she does so in the same situation in another”, they warned.

There was “an urgent need for a national approach to the law in this area” and called for more legal training on the issue at medical schools, during internships and through the specialist colleges.

Associate Professor Gary Richardson, chairman of the Medical Oncology Group of Australia (MOGA), said that as advance care directives became increasingly common, confusion was growing due to the range of different documents in circulation.

“It really should be the responsibility of the Department of Health to provide a generic document for the Australian population”, he told MJA InSight.

“Addressing end-of-life issues is a big topic and really needs to be led by the government. With an ageing population, it will become an increasing issue and there should be national standards.”

Professor Richardson said it was problematic that even when advance directives were in place, when a patient arrived at the emergency department in most cases the staff would not have knowledge of the patient, so full care would be given.

While MOGA did not currently provide any training on the law regarding end-of-life care, he said the issue would be discussed at its next executive meeting.

“I would think it very important that doctors understand their legal responsibilities around end-of-life issues”, he said.

However, Dr Anthony Cross, president of the Australasian College of Emergency Medicine, said that while understanding the laws surrounding end-of-life care was important, he did not believe it was “the major concern”.

“Clearly we need to know the law and act within the law, but most doctors wouldn’t see end-of-life care from a legalistic point of view”, he said.

“Doctors are focused on providing the most appropriate care for the patient, including a holistic assessment and discussions with the patient, their family and other medical practitioners.

“The most difficult thing is training staff to have those hard conversations about death and the possibility of withholding treatment.”

Dr Cross said the college was putting increasing resources into this area.


1.    MJA 2014; Online 11 August

(Photo: Shutterstock)


Do you have a good understanding of advance care directives?
  • Maybe – it’s a complex area (39%, 51 Votes)
  • No – little knowledge (35%, 46 Votes)
  • Yes – I have one (27%, 35 Votes)

Total Voters: 132

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5 thoughts on “End-of-life legal warning

  1. Belinda Cochrane says:

    I very much agree with Anthony Cross and “tired of unhlepful messages/headlines” – legalities are not the critical issue here. There is too much unhealthy fear about litigation in medical practice today. Such fear has potential to encourage practice of bad medicine, insensitive to a patient’s individual circumstances and focussed on “covering ass”. Most of us find that in dealing with the issue of death, withdrawal/withholding of futile treatments and institution of palliative measures, an honest sensitive discussion suffices. If the truth be known, advanced care directives are very few and far between. I don’t believe I have encountered more than two in my last seven years of practice (as director of a busy respiratory unit in NSW). Yes, it would be preferable that all practising in this area understood the legal implications but we can afford to wait until there is a consistent national standard (and there is always the opportunity to seek advice in the interim).

  2. Melinda Smith says:

    Alarmist claims about criminal charges are unfair to clinicians and the dying people they care for everyday. In the rare instances where complex legal issues do arise in end-of-life care, specialist expertise is accessible to clinicians and teams to assist with managing complex communications and with legal aspects. Findings from such research could surely be used to more positively influence known impediments in a very complex system, rather than perpetuating and heightening unwarranted fears that could negatively impact on the quality of end of life care that people need (which in the vast majority of cases does not require an intricate understanding of advanced care directives). Appreciate the sensible comments from Dr Cross.


  3. University of Sydney says:

    Your poll implies that to know about ADs involves having one yourself – I think your answers may be difficult to interpret accurately.

    Personally I am aware of the state laws and have decided against having an AD. I prefer advance planning and talking to people about my preferences.

  4. Deirdre Chrzescijanski says:

    Qld has a legal document for use when a person has strong views about what they will or won’t want if they lose capacity to make their wishes known to doctors. This Advanced Health Directive is also (arguably) protection from involuntary euthanasia. The education needed is simply to offer the Advanced Health Directive as part of the general information about our legal rights e.g similar to information about Enduring Power of Attorney. Doctors and nursing staff do a great job helping people make difficult health management decisions. I commend them on their compassion.

  5. Dr Jan Sheringham says:

    This article is very timely as it highlights the legal incongruities within our national borders when we have a nationally based healthcare system whose operation can be blunted OR made legally and ridiculously complex for those practitioners who, like me, work across state borders. A nationally congruent and resourced ACD document, which does a better match than our current “national” registration body, is the only way forward to both protect patients’ rights AND provide appropriate legal protection for those medical staff providing care in any potentially end-of-life scenario. This is especially important for those patients transferred, often inappropriately, to hospital EDs for after hours care, when the already approved ACD is known, but not provided by, nor acted on, by the Aged Care Facility from whence the patient has been transferred!

    The time has come for ALL professional bodies supporting doctors AND nurses to move firmly in the direction of decision support for those confronted with this scenario, often on a daily basis,and to push for nationaly based standards and legal bases for all such decisions. Adequate educational training and support at all levels within the health professions around this topic,and community education and support as well, are the essentials to make this area of sensitive care provision work in the patients’ favor without fear of legal retribution in the minds of those providing the care.

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