What is palliative care?
The definition of palliative care varies between each Australian State and Territory. Generally however palliative care is an act or omission, medical procedure or other measures to maintain or improve the comfort of a person who is, or would otherwise be, subject to pain and suffering.
Some definitions also refer to it as the relief of pain, suffering and discomfort.
In practice, palliative care is broad and can include pain medication, oxygen, intravenous or nasogastric feeding, delivery of blood products, anti-nausea medication, and anti-anxiety medication. Counselling and spiritual interventions may also provide palliative care.
This webpage will focus on the law about providing palliative medication, a critical element of palliative care.
What is the doctrine of double effect?
In the final stages of life, there may be concerns that palliative medication may have the unintended effect of hastening a person's death. In this situation the ‘doctrine of double effect’ may apply. This recognises that giving medication (usually by a health professional) to a person to relieve pain and symptoms is lawful even if it could hasten death.
While the scope of the law in Australia has not yet been tested, double effect is likely to apply only when:
- the primary intention is to relieve pain and symptoms, not hasten death;
- medication is prescribed and administered by a doctor caring for the person, or administered under that doctor's orders; and
- the person is near death.
The most critical element of double effect is intention. If the primary intention is to relieve pain and symptoms, not cause death, the person who gave the medication will not be criminally responsible for a death which follows, even if it is foreseen.
Administered by a doctor, or someone authorised by a doctor
Doctors are protected by double effect. Other people who deliver palliative medication e.g. nurses, carers and family members will also be protected provided a doctor has authorised them to administer the medication, and supervises the medication plan. This is specifically required by the legislation in some States and Territories.
Person is near death
Double effect is likely to apply only when the person is near death. The law is unlikely to protect the provision of medication when the person's death is not imminent. The better the person’s prognosis, the less likely the doctrine will protect health professionals if death is hastened. In South Australia, it will apply only when the person is in the terminal phase of a terminal illness. The requirement for a person to be near death is discussed further below.
Does the doctrine apply in Australia?
The doctrine of double effect originated from moral theology. To date there has not been a court case in Australia which has specifically confirmed that double effect is part of Australian law (though the Family Court in Re Baby D (No 2) suggests it likely is). Double effect has been applied by courts in similar legal systems such as the United Kingdom, the United States, Canada and New Zealand. For this reason, it is likely to be part of Australia’s common (judge-made) law, and applies to health practitioners throughout Australia.
In practice, double effect has generally been accepted in the legal and medical professions, and by medical professional bodies. However, some doctors consider that properly administered palliative medication does not hasten death, and that double effect is not needed.
South Australia, Queensland, Western Australia and the Australian Capital Territory are the only States and Territories that have introduced legislation containing versions of the doctrine of double effect.
Double effect in South Australia, Queensland, Western Australia and the Australian Capital Territory
South Australia, Queensland, Western Australia and the Australian Capital Territory have legislation containing versions of the doctrine of double effect. These States (but not the Australian Capital Territory) recognise that if the doctrine of double effect applies, the person who provides the medication will not be liable under the civil or criminal law for the person’s death (provided certain criteria are met).
In the Australian Capital Territory, the legislation is framed as a right to palliative care in certain circumstances, so how it excuses criminal liability is less clear.
Under the Consent to Medical Treatment and Palliative Care Act 1995 (SA) section 17, a medical practitioner or someone supervised by a medical practitioner, who hastens a person’s death through medical treatment or care is not liable in civil or criminal law for the person’s death if it is administered:
- to a person in the terminal phase of a terminal illness (i.e. the person has an illness or condition that is likely to result in death, and there is no real prospect of recovery or a remission in symptoms);
- with the intention of relieving pain or distress;
- with the consent of the person or their representative;
- in good faith and without negligence; and
- in accordance with proper professional standards of palliative care.
The Criminal Code (Qld) section 282A provides that a person (a doctor, or someone authorised in writing by a doctor), who hastens a person's death through palliative care, is not criminally responsible for the death if the palliative care is:
- to maintain or improve the comfort of a person who is subject to pain and suffering;
- provided in good faith and with reasonable care and skill; and
- reasonable, having regard to the person's state at the time and in the circumstances of the case.
To be reasonable the palliative case must accord with good medical practice .
There is no specific requirement that the person be near death for the excuse to apply. However, their condition, including whether they are close to death, would be relevant when the health professional considers whether providing the palliative care is ‘reasonable’.
The Criminal Code (WA) section 259 provides that a person who hastens another person's death through medical treatment (including palliative medication) is not criminally responsible for that person's death if the treatment was:
- provided in good faith;
- with reasonable care and skill; and
- reasonable, having regard to the person's state at the time and all the circumstances of the case.
The legislation does not require that a person be terminally ill. However, this will be relevant in considering whether providing the palliative medication is reasonable, and the person's state at the time. The Western Australian excuse will apply where the need for palliative care arises because the person has refused life-sustaining treatment (see the case of Brightwater Care Group v Rossiter).
Australian Capital Territory
The Medical Treatment (Health Directions) Act 2006 (ACT) section 17 and the Powers of Attorney Act 2006 (ACT) section 86 provide a right for a person to receive ‘relief from pain, suffering and discomfort to the maximum extent that is reasonable in the circumstances’. These provisions will apply only where a person is under the care of a health professional and:
- has made a Health Direction (an Advance Care Directive) directing medical treatment be withdrawn or withheld, or
- where the person's attorney has made this decision.
The effect of this law is uncertain but the legal position in the ACT is likely to reflect the common law (i.e. the doctrine of double effect).
The legislation does not specifically require that a person have a terminal illness for the right to pain relief to apply.
Does the person have to be terminally ill for double effect to apply?
As discussed above, it is very likely that the doctrine will only apply to a person who is near death. This has been the state of people in the cases that have come before the courts to date. The better the person's prognosis, the less likely the doctrine will protect health professionals if death is hastened.
The law on this issue in the States and Territories which have legislation (Western Australia, South Australia, Queensland and the Australian Capital Territory) is detailed in the previous section. South Australia's law specifically requires that the person must be in the terminal phase of a terminal illness for the section 17 excuse to apply.
Who is protected by double effect?
Under common law, the doctrine of double effect will protect those who are authorised by doctors to administer palliative medication. This includes nurses, and others who deliver palliative medication such as non-professional carers and family members, given palliative care is increasingly being provided in the community.
The legislation in Western Australia and Queensland refers to a ‘person’ providing the palliative medication, and therefore a doctor is not the only person able to administer the medication. In Queensland however a doctor must order the care, and the doctor must give written authorisation. In South Australia, the treatment may be given by a ‘medical practitioner responsible for the treatment or care of a patient’, or a person supervised by that medical practitioner who participates in the person’s treatment or care.
If a person dies after receiving palliative medication is that euthanasia or voluntary assisted dying?
The appropriate provision of palliative medication i.e. only to relieve pain and symptoms, in accordance with good medical practice, is not euthanasia or voluntary assisted dying (VAD). So long as the person’s death was not intended, the doctrine of double effect applies.
VAD is illegal in all Australian States and Territories, except in Victoria in limited circumstances. Laws permitting VAD have also been passed in Western Australia and are expected to commence in mid-2021. Learn more about voluntary assisted dying laws, including the law in Victoria and Western Australia, at our webpage.
How do you know whether the health professional intends to relieve pain and suffering, or intends to hasten a person’s death?
It is very difficult to prove that a health professional intended to kill a person or hasten his or her death. Examples of behaviour which may suggest this include where:
- a health professional gives the person a drug that has no pain-relieving properties; or
- a drug is prescribed at twice the lethal level.
These circumstances existed in some cases where health professionals have been prosecuted or disciplined in connection with providing palliative medication (e.g. R v Cox; R v Adams and Health Care Complaints Commission v Osborne). By comparison, see the Inquest into the Death of Sybil Zimmerman where a Coroner found that palliative medication had not caused the deceased’s death, and made no adverse findings against the health professionals involved.
What if the health professional was negligent in providing palliative medication, but did not intend to cause the person’s death?
The doctrine of double effect may still apply where a health professional is negligent and does not intend to cause death.
However, if the health professional was grossly negligent or careless, such as administering a grossly careless medication overdose, then the doctrine of double effect may not excuse the health professional, and he or she may be criminally liable for the person’s death (i.e. may be prosecuted for murder or manslaughter).