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EXPERTS debating proposed legislative changes to provide a legal defence for doctors who administer medication that hastens or causes the death of a terminally ill patient, have cast doubt over consensus on euthanasia ever being reached.
Associate Professor Will Cairns, director of the Townsville Palliative Care Service, told MJA InSight that it was unrealistic to view euthanasia as a problem that could be solved.
“First of all it is not actually a problem; it’s just that our community cannot agree with how to deal with it. Second, there is no solution that would ever be satisfactory for both sides of the divide, because they are deeply entrenched and probably irreconcilable.”
Professor Cairns was responding to a “For debate” article published this week in the MJA which proposes “simple changes to Commonwealth and state legislation” to provide a “minimalist” solution to the ongoing debate over euthanasia. (1)
Professor Paul Komesaroff, of the Monash Centre for Ethics in Medicine and Society, and Stephen Charles QC, a former Victorian Court of Appeal judge, wrote that while the Australian community remained deeply divided on the issue, the acrimonious tone of the debate obscured the fact that there was widespread agreement that people with terminal illnesses were entitled to adequate treatment, and should be allowed to make basic choices about when and how they die.
They said a key problem with current laws was that doctors who followed current best practice by providing the necessary care to alleviate pain could not be confident that they would be protected from criminal prosecution should they be actively involved in the death of their patient.
The authors said a possible answer to this problem was to make simple changes to federal and state legislation that provided a defence to a charge of homicide or manslaughter when a doctor prescribed medication that hastened or caused the death of a terminally ill patient.
“This defence would be allowed if the doctor: (a) reasonably believed that it was necessary to prescribe or administer the drug to relieve the pain or suffering of the patient; or (b) prescribed or administered the drug with the intention of relieving such pain or suffering.”
The change would affirm the legal doctrines of necessity and double effect that were well established in common law, but had been rarely tested in the courts, they wrote.
Earlier this month, the Victorian Legislative Council called for an inquiry into “the issue of dying with dignity (voluntary euthanasia) and the need for laws in Victoria to allow the terminally ill to make informed end of life choices”, with a report to be completed by April 2016. (2)
Dr Stephen Parnis, AMA federal vice president, told MJA InSight that the inquiry would represent “a positive contribution to the discussion regarding euthanasia”.
He said he hoped the Victorian inquiry would help mediate the increasingly polarising public debate on euthanasia, which he said had been driven by fear on both sides.
Dr Parnis said the proposals in the MJA article validated the longstanding ethical principles of double effect — avoiding futile care and preventing the unnecessary suffering of patients.
He acknowledged that while the AMA had long been opposed to the notion of euthanasia, “if the AMA gets stuck on either end of the spectrum, no one will benefit”.
The next step was to achieve legislative clarity across the different states and territories, which would involve each jurisdiction establishing its own “sensible” framework in relation to end-of-life care, Dr Parnis said.
Professor Cairns agreed, saying the legislative changes would eliminate doctors’ fears of prosecution, and “increase their confidence to deliver what most of us already consider as good medical practice — that is, to administer whatever it takes to keep people comfortable”.
Professor Peter Ravenscroft, conjoint professor of palliative care at the University of Newcastle, said he believed “the law as it stands adequately protects the terminally ill person from any misadventure, or malice, of medical professionals or carers”.
“I consider any law designed to protect the doctor runs the risk of being open to abuse by those not following best practice in patient management, or misusing the agents available to them to manage patient symptoms”, Professor Ravenscroft said.
Dr David van Gend, a GP and senior lecturer in palliative medicine at the University of Queensland rural clinical school, rejected the assertion that the proposal discussed in the MJA was in any way minimalist, telling MJA InSight that it represented “fully fledged euthanasia in its classic definition”.
Dr van Gend claimed the authors had misrepresented palliative care, saying it “is emphatically not current best practice for doctors to intentionally end the life of a patient by using drugs to relieve suffering”.
He said existing legislation should not be changed because it “protects doctors, nurses and patients alike from the corrupting effects of a culture of mercy killing”.
1. MJA 2015; 202: 480-482
2. Legislative Council, Victoria: Notice papers, 7 May 2015
(Photo: Squarepixels / iStock)
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THE GREAT EUTHANASIA CON
None of the European countries restrict Euthanasia to the terminally ill. They have assisted suicide for psychological and social reasons, whilst the Swiss. Dignitas clinic now offers assisted suicide for Healthy elderly people who are “tired of living”. Dr Philip Nitschke also supports this, calling it ” Rational Suicide”
The Euthanasia Lobby have NO INTENTION. Of limiting Euthanasia to the terminally ill. The Australian Public have not been told the truth about Euthanasia
Surely a patient can outline the circumstances under which he would wish the die.! KBO
Semi retired doc puts it perfectly
This debate has gone on forever. Doctors have been practising passive euthanasia for years i.e. not initiating, or withdrawing hopeless treatments. Also speeding up the dying process with medication. But the key point is what is the intent? If the intent is to make the patient comfortable , and this speeds up the dying process, this is ethical and humane. Where we get into murky waters is the idea of active euthanasia , where the primary intent is to kill the patient. This is illegal and should remain so. It sets up an ethical “slippery slope’ , open to abuse.
It seems that the doctrine of double effect does not really legally hold?
I recall some years ago when I still saw general medical patients, I had an elderly woman admitted under me with terminal emphysema. She was sitting up with her head on a pillow over a cardiac table (remember them?) desperately short of breath. I was reminded of the hideous old way of execution whereby the condemned was chained at the low tide mark and slowly drowned as the tide came in. “Help me, doctor ” she gasped. “i can’t sleep”. I told her I could give her something to help her sleep but she probably wouldn’t wake up. “Thank you, thank you” she replied. I did give her something and she didn’t wake up. I hope in the same circumstance someone would do the same for me. Didn’t someone once say “Do unto others as thou would have others do unto you”?
I appreciate the authors (Paul Komesaroff and Stephen Charles) trying to propose a way forward on the vexed matter of end-of-life decisions and euthanasia. They mention the notions of the doctrines of necessity and double effect. Thomas Aquinas introduced the principle of double effect in the approach to homicidal self-defense in 1265. The idea is that in self-defense a person may kill the attacker (‘double effect’) in the act of defending him or herself, as the intention is to defend oneself and not harm the other. In the context of a doctor administering a lethal drug (like Nembutal) to a patient who has a terminal illness to relieve suffering it may be that there would be a ‘double effect’ of the patient dying as a result of the administration of the medication. However, in this situation if the relief of suffering must mean an end the patient’s life then the intent is to cause the death of the patient. If the doctor chose a dose of Nembutal that would guarantee the death of the patient then the intent would be clear – to end the patient’s life. A doctor proceeding in this way would violate two of the conditions of the doctrine of ‘double effect’ – namely; the bad effect must not be the means by which one achieves the good effect, and the intention must be the achieving of only the good effect, with the bad effect being only an unintended side effect. As a result, I doubt the principle of ‘double effect’ can be invoked in this clinical situation. I suspect doctors who act in this way will still be uncertain whether they can be prosecuted, even if the law was changed as suggested by Paul Komesaroff and Stephen Charles.
It is not a question of religius fundamentalism. It is way to easy to argue like that. Read a humanist argument against it here:
http://www.palgrave.com/page/detail/assisted-suicide-the-liberal-humanist-case-against-legalization-kevin-yuill/?K=9781137286291
It is a question about whether the condition of some people – the ones who are ‘sufficiently’ sick – could legally be intentionally killed by some one else unlike healthy people if they ask to. Do we as a society want to have such a distinction?
It is also not a question about not offering help. Of course we should all kind of help to people who are in pain and dying, including painkilling that may shorten life.
Why is it so important to intentionally kill our vulnarable co-citizens? And will it end with the deadly sick, or procede into permanent but not life-threatening conditions – this has many supporters to? And the demented, the disabled. Take a careful look at Belgium. When ‘pain’ is the criterium, you will soon realize that anyone could be in pain.
It is not a question of autonomy either because then it would not involve a third party.
There is a potential resolution to this dilemma, one plaguing many countries. It looks something like this: Before legalizing “death with dignity” the state and its medical institutions must first assure “life with dignity, despite restrictions.”
If the goal is to assure patient choice the predicate act must be to assure full choice is available for those with chronic and limiting conditions. This means first not simply a commitment to palliative, rehabilitative and social support but its deployment in those areas that seek to permit physician termination at the request of patients. Many who seek termination do so because they are afraid of pain, or experience pain that is not well controlled. And, too, many seek terminaton beccause they fear the limits of conditions that, with experience and support, are manageable. Until and unless that support is provided the “choice” to die is not balanced by an equal choice to live with suport.
it is common for those who have suffered a limiting injury or terminal diagnosis to consider termination. The life they’ve known is ended. But pretty much all the literature insists that with appropriate care, and time, those wishes are revoked. So in any law permitting physician-assisted death a time frame permitting ample time for adjustment, and support during that time, must be included.
This would reduce the field in which acts of termination are permitted to the rare, intransigent case that is not amenable to skilled palliative care and the patients who are in the last days of a condition with profound limits taht are neither reversable and in which no compensation can be provided.
HYPOCRISY from the sons and daughters of Hipocrates.
EVERY PALLIATIVE CARE RELIGIOUS ZEALOT IS KILLING PATIENTS EVERY DAY as surely as putting a gun to their head. If you let a child run in front of a bus….and all you had to do was put out your hand to stop him – You have killed the child. If you give increasing doses of morphine “to relieve pain” you have killed your patient. The only thing is you have made it slow and painful – at the least for the patient’s family instead of swift and humane. If you do not get this….just talk to any veterinary surgeon who would never treat a dying animal with such callous disregard.
The “debate” is so polarised that there can never be agreement between the organised groups that propose killing people and those who oppose this view.
At present doctors are protected if they are prescribing opioids/midazolam (or similar) to relieve symptoms.
The PRO group usually have a few high profile cases of neurodegenerative diseases and misrepresent the whole issue.
One well known political party picks up a few votes on the issue. A small party exists on this as a sole issue.
The public is generally misinformed on the issue and when it is explained that adequate relief of ALL symptoms can be given LEGALLY then patients have said “what is the problem?” This had a run a a Sydney metropolitan newspaper a few years ago and had the same favourable (anti killing) response.
The published data from overseas is misleading as there is little doubt that patients agree to please relatives and this is either not mentioned or is deleted from publications.
Another unanswered question is “why should doctors kill the patient?” A course on thanatology in the course?
I treat a lot of vey sick elderly patients who know their prognosis. I have never been asked to kill anyone.
I asked Neischke about this at a seminar and he said he ran a different sort of practise
The present situation is adequate,I have given evidence in coronials where the issue has been raised,
Any change will only make some interest groups (not patients) happy and alter the very important duty we have as doctors to help patients.
I look after people who are dying all the time. Had one in my rooms this morning. Why have I never felt the need to Euthanase someone in the last 20 years? Have I been asked? Maybe 5 times. Am I religious? No. People go all funny in the head when relatives die. In my experience it’s rarely the person who is dying that feels distressed. It’s the person watching them. They then respond to how they are feeling by projecting their distress onto the dying individual which leads them to decide that the best way to aleviate their own suffering is to hasten the death of others (or themselves) so they (others) don’t have to watch. How selfish. No one said death had to be fun but it can be. When someone in the hospital has a good death you will hear laughter coming from the room. When it’s a bad death it’s a complaint, often well after the fact. Maybe if we were better at caring for the relatives of the dying this whole euthanasia question wouldn’t be an issue? Euthanasia. The wrong answer to the right question.
The least legislative requirements around this issue the better. Death by committee and potential interference in good medical care will lead to more and more legal requirements to let us do what we already are able to. In practice there is no legal problem provide good compassionate care to dying patients in Australia. The law of unintended consequence means that what starts as a seemingly sensible idea will be over time finish up being altered so that in effect you will have outsiders to families and patients interfering in what for thousands of years has been a private and natural process. I believe once this goes to parliament and becomes a political issue we will not get an outcome any sane doctor would want. Nothing needs to change at present.
The problem is that no legislation has yet proved capable of protecting the weak and innocent. from new borns to the elderly. “Do you call this a life?” by Gerbert van Loenen, gives a masterly survey of the effects of euthanasia acceptance in the Netherlands since 1980, and shows that the actual law is constantly flouted. Physicians are killing patients on their own cognisance, assuming the right to determine the human worth of the patient to society. That’s playing God! This is the constant risk, against which legislation cannot protect. Current law clearly protects doctors who treat symptoms, even though the dosage may prove fatal. Proper palliative care assures dying in dignity, without distress. Check Gerbert van Loenen and Tom Moitier on Wikipedia before you think further, and beware the skewed presentation of the issues in the public media, so hard-driven by a dedicated minority.
The problem with the implementation of law is that it rarely reflects the reality of modern work envirionments, including hospitals and palliative care units, and the tensions experienced by those working in these environments.Instead of applying ‘commen sense’ or logical determinations based on patient requests and sound medical practice, decisions to administer pain relief is often clouded by fear of litigation. This is not new. However, my recent and first experience of watching my father die in a new palliative care unit, was nothing short of horrifying. My sister and I, both former nurses and now lawyers, stayed by his bedside for 6 days and nights, often aruging with health care professionals for more relief to ease his suffering. Poor communication by doctors in charge with night duty staff, poor records on charts, meant that we sometimes had to threaten litigation if our father did not get the relief he was promised. He died without pain but in a great deal of distress. Distress is not taken into account in the medico-legal debate in the same way that pain is. I intend to write about this and highlight the absurdity of the distinctions between pain and distress – immeasurable at this time of exit from life. We usually only get to die once. My dad died without dignity. The balance between protecting patients from decisions to end life prematurely based on economic reasons or reasons associated with the personal agendas of the odd rogue health ‘carer’ AND protecting the right of a person deciding that they are now ready to die and need help to make that happen as smoothly as possible is not met by existing laws and regulations.
The Australian public are not deeply divided about the right to be able to chose voluntary euthanasia if they are terminally ill. The latest Newspoll shows 85% of Australians believe terminally il people should have the right to request and receive medial assistance to provide voluntary euthanasia if their sufferring becomes too great. Opposition to voluntary euthanasia is mainly from religious fundamentalist and some doctors who dont believe patients should be given the right to voluntary euthanasia. Voluntary euthanasia has been legal in 4 European countries and two states in the USA for over 10 years without any of the problems opponents have claimed would occur.
The South Australian Parliament considered a Bill which did just this a couple of years ago – the Medical Defences Bill. MPs still went wobbly. It’s good to see the MJA at least prepared to discuss this major social question – more than the RACP is prepared to do. The RACP just “uninvited” Dr Rodney Syme to their May Conference after they had invited him to lead a discussion on end of life choices.
Euthanasia is being carried out inadvertantly – the dose of a drug thast will relieve the patient’s pain and discomfort may eventually coincide with that causing death. Euthanasia should be legal but the precautions in any legislation would need to be sound yet empathetic.