Palliative care seeks to relieve the pain and symptoms of a person with a life-limiting illness, and is a critical part of medical practice at the end of life. Tensions can arise however where palliative medication, despite being administered with the intention of relieving a person’s pain, has the unintended effect of hastening that person's death (the doctrine of double effect).
This webpage explores the law relating to palliative medication and the doctrine of double effect, as well as the issue of terminal sedation.
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).
Special provision: Palliative care in Victoria
In Victoria, the Medical Treatment Planning and Decisions Act 2016 (Vic) recognises that a health professional may give palliative care (including palliative medication) to any person who does not have capacity despite any decision of the person’s medical treatment decision-maker. However, in making the decision to provide palliative care, the practitioner must consider any preferences or values of the person, whether or not given in a Values Directive in an Advance Care Directive. They must also consult with the person’s medical treatment decision-maker.
What is palliative sedation?
Palliative sedation is defined by the European Association for Palliative Care as ‘the use of medications intended to induce a state of decreased or absent awareness (unconsciousness) in order to relieve the burden of otherwise intractable suffering in a manner that is ethically acceptable to the patient, family and health-care providers’.
It is used in palliative care to manage refractory symptoms (symptoms which cannot be otherwise adequately controlled) at the end of life. The primary purpose of palliative sedation is to sedate a person near the end of their life in order to relieve their symptoms, not to cause or hasten their death.
Is palliative sedation legal in Australia?
In Australia, palliative sedation therapy is used in clinical practice as an extraordinary measure for ‘selected persons with life-limiting illness with refractory symptoms’ (Australian & New Zealand Society of Palliative Medicine (ANZPSM), Guidance Document: Palliative Sedation Therapy, 2017). This therapy is lawful when it is administered according to those guidelines because double effect will apply.
For example, it would be lawful to use palliative sedation to manage refractory symptoms, with the intention of relieving pain and suffering, not hastening or causing death, and so long as the person continues to receive nutrition and hydration. Palliative sedation used in this way to manage refractory symptoms is not euthanasia or voluntary assisted dying.
Palliative sedation has not been considered by the Australian courts, and some legal and ethical issues remain unsettled. These include:
- The terminology and definition for palliative sedation.
- When palliative sedation is clinically indicated e.g. what is a refractory symptom, and whether it is appropriate to use sedation only for physical symptoms, or for psychological as well as physical symptoms (or existential suffering).
- The appropriate time at which sedation can be commenced e.g. only during the final hours or days of life, or when the prognosis of death may be between 1 to 2 weeks away, or even further out from death.
- Whether it is appropriate to withhold nutrition and/or hydration when sedation is commenced.
Voluntarily stopping eating and drinking
What is voluntarily stopping eating and drinking?
Voluntarily stopping eating and drinking (VSED) occurs when an adult with capacity refuses to eat or drink with the intention of dying. Some people may do this as an alternative to voluntary assisted dying. Sometimes a person may also receive palliative care to relieve pain and symptoms from dying due to a lack of food and water (called ‘voluntary palliated starvation’).
Is voluntarily stopping eating and drinking legal in Australia?
The legal status of VSED has not been decided by the Australian courts. The law on this practice in Australia remains unclear, particularly in relation to issues such as the legality of providing palliative medication to a person who has VSED; whether the person’s substitute decision-maker can continue to refuse food and drink for the person once they lose capacity; and whether a person can make an Advance Care Directive refusing food and drink. Under Australian common law however a person has the right to refuse food and drink, even if it results in death.
Some legal commentators believe that in some circumstances a death resulting from a competent person's decision to stop eating and drinking may be lawful, and it can be lawful and ethical to provide palliative medication and care to reduce pain and symptoms caused by VSED. This issue was considered in the Western Australian case of Brightwater Care Group v Rossiter.
Inquest into the Death of Sybil Zimmerman  SCCNSW 2011
Zimmerman was 84 years old and suffered from several co-morbidities. After death, her daughters alleged that she had died from an overdose of morphine given by nurses at her aged care facility. After being provided with morphine she had lapsed into a coma and died the same night.
An autopsy was performed and an inquest held. The Coroner supported the autopsy findings that the most likely cause of death was coronary artery thrombosis with cerebrovascular disease, dementia and pneumonia contributing. Although the autopsy report indicated that it was not possible to be certain that the morphine had not played a part, the Coroner accepted expert evidence that the 5mg of morphine documented in her medication chart had not caused or contributed to death.
No adverse findings were made against the nurses who had administered the morphine, the general practitioner who had prescribed it while Zimmerman was at the aged care facility, or the treating doctors in the emergency department she was taken to prior to her death.
Health Care Complaints Commission v Osborne  NSWCATOD 118
Osborne, a doctor, was caring for two elderly nursing home persons, A and B. A complaint was made that he had administered increasing doses of morphine to both A and B above therapeutic standards. Expert evidence was provided to the Tribunal that morphine was clinically indicated for A and that initial doses were appropriate; but that ongoing larger doses were beyond prescribed guidelines and not clinically indicated. Evidence was given that morphine was clinically indicated for B; however given B’s increasing renal failure, morphine should have been used less frequently and replaced by another drug. Evidence was that the alleged inappropriate doses for both A and B could have hastened their deaths.
Osborne admitted the particulars of the complaints and the Tribunal found her guilty of unsatisfactory professional conduct and professional misconduct in that she had failed to check the guidelines to ensure the quantities were appropriate. Her registration was suspended for six months, with conditions imposed on re-registration.
Re Baby D (No 2) (2011) 45 Fam LR 13
Baby D was an infant with a catastrophic brain injury, who needed an endotracheal tube in order to breathe. The infant’s parents and doctors believed it was in Baby D’s best interests for the tube to be removed and that life-sustaining treatment should not be provided. However, if the tube was removed, there was concern Baby D would make attempts to breathe, which would likely be unsuccessful and would cause her distress. It was proposed palliative care (morphine) be given to Baby D to relieve this distress, but medical evidence showed that this treatment would be likely to suppress her breathing and hasten her death (although this was not intended). The key issue in this case was whether it would be lawful to do this.
The Family Court did not directly consider the doctrine of double effect. However, it authorised the provision of palliative care that was ‘necessary and proper’, on the basis of the medical evidence presented. The Court’s approach in this case suggests the doctrine of double effect is likely to be part of Australian law.
Brightwater Care Group v Rossiter  40 WAR 84
Note: The Court in this case did not consider the doctrine of double effect. However, this case illustrates how the excuse in section 259 of the Western Australian Criminal Code might work in practice.
Rossiter was a quadriplegic who was kept alive by receiving artificial hydration and nutrition through a tube into his stomach. He had decision-making capacity, and decided he no longer wanted to receive this treatment. He asked the facility that was caring for him to withdraw the tube. The Supreme Court was asked to make declarations about the rights and obligations of the facility towards Rossiter.
The Court decided that as Rossiter had capacity he could refuse the treatment. A declaration was made that the facility caring for Rossiter could lawfully withdraw the treatment. The Court also declared that the provision of palliative care would be lawful, even though Rossiter would be dying because of his refusal of life-sustaining treatment, so long as that palliative care was provided in accordance with section 259 of the Criminal Code (WA).
R v Cox (1992) 12 BMLR 38
Boyes, an elderly lady, was in agonising pain from rheumatoid arthritis. She had known Cox, a doctor, for 13 years and he said she would not suffer. After many unsuccessful attempts to control her pain Boyes begged Cox to kill her. Cox administered a large dose of potassium chloride and Boyes died shortly after. Cox was charged with attempted murder. (The Crown was unsure if they could prove the drugs killed Boyes or that she died from her other conditions. Boyes’ body had been cremated and therefore there was no scientific evidence the potassium chloride killed her).
During the trial the jury was instructed on the doctrine of double effect: Cox could only be convicted if his primary intention was to cause her death. Significantly in this case, the potassium chloride did not have any curative or pain-relieving properties and was estimated to be twice the legal dose.
The jury convicted Cox of attempted murder and so must have been satisfied that his intention was not to relieve Boyes' pain or symptoms through this medication. Cox received a suspended sentence of one year imprisonment and was allowed to return to his medical duties under supervision.
R v Adams (Bodkin) (Unreported, Central Criminal Court London, Devlin J, 9 April 1957)
Adams was a family doctor who was charged with the murder of an elderly female patient, Morrell. The Crown argued that the very large quantities of medication given to Morrell showed that Adams must have intended to kill her. The Crown gave evidence that Adams was involved in changing Morrell’s will to make him a beneficiary (about which he lied). However, there was also conflicting evidence about Morrell’s level of pain, and that the doses of medication given could have been medically appropriate. Adams was acquitted by the jury.
Justice Devlin (who heard the case) stated:
‘if the first purpose of medicine – the restoration of health – could no longer be achieved, there was still much for the doctor to do, and he was entitled to do all that was proper and necessary to relieve pain and suffering even if the measures he took might incidentally shorten life by hours or perhaps even longer’.
Lindy Willmott et al, ‘Nurses' knowledge of law at the end of life and implications for practice: A qualitative study’ (2020) Palliative Medicine 1-9.
Geoffrey Mitchell et al, ‘A perfect storm: fear of litigation for end of life care’ (2019) 210(1) Medical Journal of Australia 441.
Lindy Willmott et al, 'Providing palliative care at the end of life: Should health professionals fear regulation?' (2018) 26(1) Journal of Law and Medicine 214-245.
Andrew McGee and Franklin Miller, 'Advice and care for patients who die by voluntarily stopping eating and drinking is not assisted suicide' (2017) 15(222) BMC Medicine.
Ben White and Lindy Willmott, 'Double effect and palliative care excuses'. In Ben White, Fiona McDonald, & Lindy Willmott (eds.) Health Law in Australia (Lawbook Co, 3rd ed, 2018) 625.
Ben White, Lindy Willmott and Julian Savulescu, 'Voluntary palliated starvation: A lawful and ethical way to die?' (2014) 22 Journal of Law and Medicine 376.
Andrew McGee, 'Intention, foresight and ending life: A response to "The Double Effect effect" by Charles Foster, Jonathan Herring, Karen Melham and Tony Hope, (CQ 20(1))' (2013) 22(1) Cambridge Quarterly of Healthcare Ethics 77.
Andrew McGee, 'When does pain and distress relief hastening death become killing?' (2011) 20(3) Transplant Journal of Australasia 6.
Ben White, Lindy Willmott, and Michael Ashby, ‘Palliative care, double effect and the law in Australia' (2011) 41(6) Internal Medicine Journal 485.
Ben White and Lindy Willmott, 'The edge of palliative care: Certainty, but at what price?' (2004) 7(1) Flinders Journal of Law Reform 225.