Clarifying end-of-life law for doctors

MEDICAL treatment decisions, particularly in life and death situations, are a moral, ethical and legal challenge confronted by many medical practitioners daily.

Uncertainty is undesirable about whether an advance directive should be followed, which family member to turn to for a decision about life-sustaining treatment, or whether it is legal to give more morphine to a dying patient, and this can leave doctors feeling potentially at risk and isolated.

However, a new online resource is now available to help practitioners with the answers to these dilemmas.

We developed the End of Life Law in Australia website at the Australian Centre for Health Law Research, at the Queensland University of Technology, to support medical practitioners, other health professionals, lawyers, policy makers, patients, families and the broader community to know, understand and navigate the complexities of the law at end of life.

The website, which we believe to be an Australian first, explores the law on death, dying and decision making in all Australian states and territories, with a specific focus on advance directives, withholding and withdrawing treatment, guardianship, palliative care, organ donation, and euthanasia and assisted suicide.

The website provides links to relevant resources in each jurisdiction, definitions of commonly used legal terms, and regular updates about recent developments in the end-of-life field.

End of Life Law in Australia was inspired by a similar website created by the Health Law Institute at the Dalhousie University in Canada, but it was also developed in response to findings from our empirical research into doctors’ knowledge of the law on withholding and withdrawing life-sustaining medical treatment. The research, co-authored with our colleagues from the University of Queensland and Southern Cross University, surveyed doctors from seven specialties in Victoria, New South Wales and Queensland.

The results, published in the MJA in 2014, revealed critical gaps in the legal knowledge of many doctors practising end-of-life medicine, with potential impacts on doctors’ compliance with the law.

“It is awful knowing that a decision has to be made immediately … and feeling like I’m alone in making it if there is no family present or there is no [advance health directive] to provide guidance. Often the right answer is obvious (this 20-year-old from a car accident needs resuscitation) but sometimes it is not obvious. I don’t feel I have enough knowledge of the law to know whether a decision I make is necessarily legally right. I once had a man in his late 90s who was trying to gently die and his family wanted full CPR and life support. I felt this was both morally and clinically wrong, but where do I go to find out what is legally correct? I don’t know how to find this answer at 1 pm let alone at 1 am.”

Emergency physician, Queensland (respondent to the Doctors’ knowledge of the law survey)

We know that law reform and improvements to medical education both have a role to play in enhancing doctors’ knowledge of end-of-life law.

Our research identifies the need for governments to simplify the law in this area, for example, by introducing consistent national legal frameworks, and that it is vital to improve training and resources across all stages of medical education.

This is a call that has been echoed repeatedly by government inquiries over the past decade. Reviews have identified the need for both medical practitioners and the community to be better informed about end-of-life law.

Most recently, the Victorian Legislative Council Standing Committee on Legal and Social Issues recommended in its Inquiry into end of life choices final report the implementation of guidelines and resources for health practitioners to support advance care planning and end-of-life discussions with patients with difficulties communicating.

A significant driver of calls for reform is the increasing recognition of the legal and gatekeeping role that medical practitioners have in providing medical treatment at the end of life, in addition to their clinical role.

As the population ages, the Australian community is being encouraged to engage in advance care planning and conversations with their doctors about death and dying (here, here, and here).

Accurate knowledge of the law, and compliance with it, has now become critical to good medical practice, while an absence of knowledge puts both doctors and patients at risk. In the worst-case scenario, it can result in a patient’s life being ended unlawfully, and a doctor facing criminal or civil repercussions.

Unfortunately, medical practitioners aren’t the only ones in the dark about the law.

Questions have been raised about whether patients and the broader community are aware of their basic legal rights and responsibilities at the end of life (here and here).

We are conducting a new study about community knowledge of the law at end of life with our colleagues at the University of Queensland and the Cancer Councils of Victoria, Queensland and New South Wales, to explore these problems and identify where improvements can be made.

We note the unique position of trust that doctors enjoy, and this should serve as further impetus for doctors to improve their knowledge of the law.

There is enormous scope for incorrect information to be passed by doctors to their patients, and for misunderstandings to occur if neither doctors nor patients know the law. For this reason, we have designed this website to provide everyone with access to straightforward, relevant and accurate information about the law in this area.

It was encouraging that most of the respondents to the survey on doctors’ knowledge said that they wanted to know more about the law.

We hope that End of Life Law in Australia will provide a useful starting point for doctors and the community who want to enhance this knowledge.

Professors Ben White and Lindy Willmott are Directors of the Australian Centre for Health Law Research in the Faculty of Law, Queensland University of Technology. Penny Neller is the Centre Co-ordinator.

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