DEATH GIVES BIRTH TO THE NEED FOR NEW LAW:

Transcription

1 DEATH GIVES BIRTH TO THE NEED FOR NEW LAW: The case for law reform regarding medical end of life decisions. Introduction Many people who oppose the legalisation of euthanasia and/or physician assisted suicide argue that to do so would increase the risk of abuse of people when they are most vulnerable. It is argued that no legislation can be written that would provide adequate safeguards to ensure that once allowed, the process of euthanasia would not be abused. In this paper, I will argue that those fears although valid, do not and cannot serve as the coup de grace to calls for euthanasia. I propose to show that such safeguards are not present in law at the moment, yet we do not see or hear about a rash of cases where people are being pressured to make decisions that prematurely end their life, and there is no sound reason for believing that such issues would arise in the future, were euthanasia allowed. On the way, I shall also argue that if we are serious about the demands for safeguards to ensure that people, as they approach the end of their lives, are not subject to undue pressure, then those safeguards are required now, whether or not we ever accept the legalisation of euthanasia.

2 The current law For the sake of the argument I shall assume that the following statements represent the true position of the law as it stands on medical end of life decisions. That is: A person may refuse any and all medical treatment even if the consequence is that they will die; A doctor cannot be compelled to administer treatment that in his or her professional opinion is futile, and as there is no duty to administer futile treatment, it is not unlawful to withdraw such treatment even when the consequence is that the patient will die; and A doctor may with immunity administer treatment to a person with the intention of relieving their pain and suffering, even though it is foreseeable that the treatment itself may shorten the person s life. Provided the intention is merely to alleviate symptoms, and not to end the person s life, then the action is permissible at law. (The so called doctrine of double effect ). I say that I accept the above for the sake of the argument for I am not convinced that the doctrine of double effect is part of the law in Australia (or New South Wales at least). The authority that is usually given for that proposition, R v Adams 1, is not a binding decision on any court in Australia, and the doctrine would seem to be inconsistent with the decision in R v Crabbe 2 that held that a person is guilty of murder (under the Northern Territory law as it then was, and under the definition of 1 2 R v Adams R v Crabbe

3 murder still contained in the Crimes Act 1900 (NSW) 3 ) if the death of the deceased is caused by the act of the accused, when the accused realised that the probable consequence of his or her action would, in fact, be death. Notwithstanding that, the literature seems to accept the proposition that the doctrine has some role in the law today, and it is not certain that the High Court would not agree if the matter came before it, and so I shall, as I say, accept the proposition for the sake of the argument. The objections. Dr Brian Pollard is one advocate who argues that we cannot legalise euthanasia due to the inability to provide proper safeguards. In a submission to the Select Committee reporting on the Rights of the Terminally Ill Bill in the Northern Territory, he said: The chief difficulties in making euthanasia law, which have not been able to be solved, are: - determining the real intention of the one doing the killing. While the universal reason given is the exercise of compassion, that claim could be used as a cover for medical ineptitude, a distorted concept of rights, callousness, a conflict of interests or, in the worst case, a malicious intent. Though the same can be said of other laws, in every instance of abuse of a euthanasia law, a person would have been killed without consent. - the possibility of a wrong diagnosis. This would not be a major factor. - defining distress or suffering in such a way that the law could never be applied to those for whom it was never intended. Whether definitions are simple or complex, they must be interpreted against a 3 Section 18

4 background of subjectivity, either by the person or an observer. What one person finds intolerable, another can readily bear. There could be no possibility of standards of measurement or comparison to enable judgments of distress to be made to an acceptable level of legal certainty. - guaranteeing a person's freedom to give or withhold consent. In the unstable emotional context of dying, confusion, anger, depression, resentment, anxiety, fear, misunderstanding and feelings of worthlessness are common, with the ever present possibility of coercion, especially in subtle form. It would often be impossible to confirm coercion, even when it was suspected, and thus, this form of abuse would be virtually impossible to eliminate. I shall take these points as being representative of the types of arguments I am trying to address. If the current law does not address any of the objections raised above, and if those objections are legitimate reasons not to legalise euthanasia, then they are also legitimate reasons to demand a change in the law that currently governs the making of medical end of life decisions. First of all, consider the decision to withhold treatment from a patient. I stated above that a doctor cannot be required to give treatment that is considered futile, even if that treatment is keeping the patient alive. If, however, we leave it to the medical profession to determine when treatment should be withdrawn (as is currently the case in Australia), we face the very same problem that Dr Pollard has identified with regard to euthanasia, that is we cannot determine the real intention behind the action. It may be that the doctor withdraws treatment (or gives increasing doses of analgesia) with the stated reason of acting out of compassion or in the patient s best interests, but

5 that cannot be tested under current law. It is equally true now that such an action could be... used as a cover for medical ineptitude, a distorted concept of rights, callousness, a conflict of interests or, in the worst case, a malicious intent. Dr Pollard acknowledges that... the same can be said of other laws, [but]... in every instance of abuse of a euthanasia law, a person would have been killed without consent. That consequence is also the consequence that will follow when life support treatment is removed. The possibility of a wrong diagnosis is equally a possibility now. There are occasional media reports of people coming out of long term comas and so it is equally plausible that inadequate or inappropriate treatment is now given, or appropriate treatment is withdrawn with the consequence that a death occurs sooner than is necessary. Exactly why the law needs to define distress or suffering for euthanasia is not clear, for there is no attempt to do so at the moment. The law allows a person to refuse treatment for whatever reason (suicide is perhaps an exception, but the attempts to distinguish suicide from refusal of treatment are so convoluted that I shall not attempt to clarify them here). A decision on whether to accept treatment, or what treatment to accept is always made by a patient. Treatment options must always be subjective, and there is no requirement that a person accept treatment that others find generally acceptable. That

6 There could be no possibility of standards of measurement or comparison to enable judgments of distress to be made to an acceptable level of legal certainty is true, but irrelevant. Doctors today must consider the level of distress occasioned to each patient and determine how best to deal with that. In Victoria, under the Medical Treatment Act 1988, a person may appoint an agent to make medical treatment decisions on their behalf. That agent may refuse treatment for the person but only where (a) (b) the medical treatment would cause unreasonable distress to the patient; [or] there are reasonable grounds for believing that the patient, if competent, and after giving serious considerations to his or her health and well-being, would consider that the medical treatment is unwarranted. 4 Clearly the question of whether treatment causes unreasonable distress or whether the person would consider medical treatment as unwarranted are subjective matters. There is no attempt to impose a standard or measure of comparison. The question of whether a treatment such as a blood transfusion or euthanasia are acceptable are inherently subjective and should remain so. The fact that these things cannot be measured is no bar to euthanasia, just as they are no bar to current medical practices. One of the major arguments against euthanasia is that we cannot guarantee a 4 s. 5B(2)

7 ... a person's freedom to give or withhold consent. In the unstable emotional context of dying, confusion, anger, depression, resentment, anxiety, fear, misunderstanding and feelings of worthlessness are common, with the ever present possibility of coercion, especially in subtle form. It would often be impossible to confirm coercion, even when it was suspected, and thus, this form of abuse would be virtually impossible to eliminate. Such abuse is of course impossible to eliminate now, as all abuse is. Under current law, however, there is very little attempt to eliminate such action. Under the Natural Death Act 1988 (Northern Territory) there are no requirements to ensure that the decision to sign an advance directive was not made at the time that a person was suffering clinical depression, or that it was not made as a result of pressure brought to bear upon the patient by relatives or medical or other staff concerned about the resources that may be used in the treatment. Even if a doctor were of the opinion that a person were depressed or subject to undue influence in the execution of an advance directive that would not, of itself, warrant the doctor acting contrary to the terms of the directive, for the Act says, at s. 4(3), that it is the duty of the doctor to act in accordance with the directive unless there is reasonable ground to believe- (a)... (b) that the patient was not, at the time of giving the direction, capable of understanding the nature and consequence of the direction. The test is whether the person was capable of understanding the nature and consequence of the direction, not whether they were depressed or subject to undue

8 influence. Both may be true, but if there is nothing to suggest that, as a result, they did not understand the nature and consequence of the direction then the treating medical practitioner is duty bound to comply with the request so executed. The Medical Treatment Act of Victoria 1988 (which is the basis of similar legislation in the ACT) provides minimal safeguards against improper motive or undue influence. Section 5(1)(b) requires a medical practitioner and another person to be satisfied that the decision by the person to refuse treatment is made voluntarily and without inducement or compulsion. Exactly what is considered to be an inducement or compulsion is not spelt out in the Act, so it would clearly be up to the proposed witnesses to consider whether any conduct by any other person constituted an inducement or the imposition of compulsion. The Act also requires that the witnesses are both satisfied that the person signing the certificate is... of sound mind These Acts can be compared to the Rights of the Terminally Ill Act 1995 of the Northern Territory. That Act allows active euthanasia but requires, before a request can be acted upon, that the person seeking euthanasia has been examined by at least 3 doctors, one of whom must be a psychiatrist and another a palliative care expert 6. The treating doctors must satisfy themselves that the patient is of sound mind and the decision to end his or her life has been made freely, voluntarily and after due 5 6 s. 5(1)(d) s. 7(3)

9 consideration 7, and, if necessary, all relevant conversations and documents must have been translated by an appropriately qualified interpreter 8. In the Northern Territory alone, therefore, a patient may present a doctor with a completed Direction under the Natural Death Act 1988 which the doctor is required to comply with unless there is some evidence that the Direction has been revoked or the patient was not capable of understanding the nature and effect of the document. On the other hand if the same patient requests euthanasia the doctor must be satisfied as the voluntariness of the request, arrange further consultations and wait the prescribed period before he or she can act. In each case, however, the decision to act will certainly mean the death of the patient concerned. In New South Wales, there is no legislation to cover the withdrawal of life sustaining treatment or the right of a patient to refuse treatment. Such matters are dealt with in guidelines issued by the NSW Health Department in March These guidelines say: Health professionals who apply these guidelines, in conjunction with the accepted clinical standard of their peers, armed with accurate information and adequate consultation, should feel confident to make the decision to withhold futile treatment. If we can accept and expect that doctors will comply with such guidelines and act in accordance with the principles of respect for human life; patient autonomy; 7 8 s. 7(h) s. 7(4)

10 consultation; access; and professionalism 9 when it comes to decisions to withdraw treatment or respect patient wishes, then why can we not expect the same when it comes to euthanasia? We cannot guarantee a person's freedom to give or withhold consent, we never can in any circumstances. If what we want is guarantees we would never act. We could not treat a patient because we could not guarantee that they truly consented, that the treatment would really be in their best interests, that the diagnosis was correct etc. We could not refuse treatment for the same reason. If we want guarantees, the uncertain nature of the world would prohibit any action. Accordingly we settle for less than guarantees, and the law does not require guarantees, it requires reasonable evidence or reasonable grounds. We do not however, read of a flood of cases where people are being pressured to refuse medical treatment by greedy relatives with their eyes on the estate of the soon to be deceased. We do not read reports of people using their last gasp, as the life support is turned off, to say that they didn t mean it. Why should we expect such things if the treatment under consideration was active euthanasia? 9 Dying with Dignity; Interim Guidelines on Management, NSW Health, March 1993, pp. 2-3

11 The consequences of the lack of safeguards The law as it currently stands is, to use the words of Lord Keith in Airedale NHS Trust v Bland... intellectually and morally misshapen 10. That this is true was made clear when a jury in Michigan in the United States acquitted Dr Kevorkian of a charge of assisting suicide when he provided his patient with a canister of carbon monoxide gas, turned the gas on and then watched as the patient removed a clip from the tubing, inhaled the gas and died. Dr Kevorkian s defence relied upon a section of the relevant statute that incorporated the doctrine of double effect. The New York Times 11 reported that: [t]he law said that a person is not guilty of criminal assistance of suicide if that person was administering medications or procedures with the intent to relieve pain and discomfort and not to cause death even if the treatment may hasten or increase the risk of death. When the doctrine of double effect cannot distinguish between the administration of legitimate pain killing drugs and carbon monoxide, its use to distinguish permissible from impermissible medical end of life decisions is clearly limited. The law cannot stop the abuses that Dr Pollard and others worry about now, nor can it stop the use that Dr Kevorkian makes of it to do what was intended to be illegal. If we are concerned to ensure that safeguards exist and that they can be policed, then the whole law, as it stands, needs reform Airedale v Bland New York Times, Saturday March 9

12 What is required is a codification of the law to set out the safeguards that must be met before medical end of life decisions are to be made. Some of those safeguards would, I am sure, impose on the doctor-patient relationship in a way that would be considered offensive to many practitioners but would be necessary if we want to ensure that decisions that cause the premature death of a person are made only with regard to proper considerations and, where possible, with the voluntary, informed consent of the patient. Some things that may be required would be ensuring that a psychiatrist examined a person who wished to refuse life sustaining treatment, subjecting any case where it was proposed to withdraw life sustaining treatment to an appropriately constituted ethics committee for review and ensuring that penalties existed to punish any person who for improper motives encouraged others to refuse medical treatment. Persons who witness advance directives regarding the withdrawal of life support treatment should not benefit under the estate of the deceased in the same way that a witness to a request under the Northern Territory s Rights of the Terminally Ill Act would not benefit. There is, however, another edge to this sword. If we can trust the medical profession, on the whole, to act with care, compassion and concern for their patients; if we can, as we do, ask them when dealing with the dying to respect human life; patient autonomy; consultation; access; and professionalism 12, then there is no reason to believe that they (and the families of dying persons) cannot be trusted with the added responsibility of practising euthanasia and physician assisted suicide.

13 Conclusions. The current law does not, as it stands, address the concerns of those who would oppose euthanasia on the grounds that any legislation that is written to authorise such conduct cannot provide adequate safeguards. It is clear that the law cannot guarantee that decisions to withdraw or refuse treatment are made solely for relevant and legitimate considerations nor that doctors will not engage in prohibited conduct. The law, as it stands (ignoring for the moment differences between United States and Australian jurisdiction) cannot stop Dr Kevorkian and his death machines nor can it stop doctors engaging in prohibited euthanasia 13. What is required is law that prohibits that which we want to prohibit, and allows that which we, as a community, want to allow. The current law does not do that. The current law does not provide the safeguards that are otherwise demanded, and does not serve to stop that which is prima facie illegal. What is required is a codification of the law to set out all the relevant law on end of life decisions so that the community and the medical profession will know where they stand and what is permissible. Conduct outside such a code would be easier to identify and prosecute thereby ensuring that we stop any slide down the feared slippery slope. There is, however, nothing to suggest that such a law must, of necessity, draw the line at euthanasia, for the safeguards that are demanded for euthanasia are just as important for any other medical end of life decision, and once Dying with Dignity; Interim Guidelines on Management, NSW Health, March 1993, pp. 2-3 as admitted to by Dr Brendan Nelson, then President of the Australian Medical Association in a letter to the Sunday Territorian, May 21, 1995

14 codified could be applied equally well to euthanasia as to the refusal of medical treatment. Anyone who has an interest in this area of law and medicine, and who is serious about protecting the welfare of patients and the integrity of the medical profession, should now be advocating for law reform in this area. Whether that law reform should include clear approval or clear rejection of euthanasia is another matter, but the law as it stands cannot provide the protection for patients or the medical profession that both are entitled to. Michael Eburn B. Com., LL.B., BA(Hons) Lecturer in Law University of New England.