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1
Treatment of Terminally-ill Patients Bill 2002
CARE OF TERMINALLY-ILL
PATIENTS BILL 2002
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
To clarify the obligations of doctors treating terminally-ill patients,
and to ensure that doctors and nursing staff who administer drugs to
such patients for the purpose of pain relief are not held under threat
of prosecution because an incidental effect of the treatment is to
shorten the life of the patient.
Reasons for the objectives and how they will be achieved
There is a grey area in the law of Queensland at the moment, where
medical practices that are acceptable at common law and acceptable
under the moral philosophy of most churches (in particular the
Catholic Church) are possibly in breach of the Criminal Code. This
area relates to the palliative care of people who are dying in great
pain. Sometimes the pain can only be relieved by such large doses
of opioids that the patient s breathing is depressed, and obviously at
this stage there is a danger that the breathing will stop. Therefore a
doctor who is concerned to relieve the patient s pain must prescribe
pain relief in such doses that it is possible that it will shorten the
patient s life by some hours, or days, or weeks. A question then
arises as to whether the doctor is to be regarded as having
intentionally killed the patient.
Under the common law and in the moral philosophy of at least the
Catholic Church, and possibly other Churches, the answer to this
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Treatment of Terminally-ill Patients Bill 2002
question is no . In R v Adams [1957] Crim LR 365, Lord Devlin
directed the jury that a doctor is entitled to do all that is proper and
necessary to relieve pain and suffering, even if the measures he takes
incidentally shorten life . This is in accordance with the doctrine of
double effect in moral philosophy. This is a doctrine of Catholic
origin, to which non-Catholic philosophers are now paying more
attention as well, that states that an action that has both a good effect
and a bad effect is permissible if it is not wrong in itself and if the
evil result is not directly intended.
However, the situation in Queensland is not so clear. Section 296
of the Criminal Code provides that
A person who does any act or makes any omission which
hastens the death of another person who, when the act is done
or the omission is made, is labouring under some disorder or
disease arising from another cause, is deemed to have killed
that other person.
This section makes no reference to the intention of the person --
therefore it seems that a doctor whose prescription of medicine
hastens the death of a patient, even by seconds, is technically guilty
of, at least, manslaughter, regardless of concern for the best interests
of the patient, lack of intention to kill, lack of foreseeability,
compliance with best medical practice, or any other factor.
This Bill is intended to remove the threat of prosecution from
doctors, and staff working under their direction, in the circumstances
listed in the next sentence. It does this by clearly spelling out, in
clauses 2 and 3, that where a doctor has prescribed pain-killing
medication with the intention only of relieving pain, with the proper
consents, in good faith, without negligence and in accordance with
best practice, but the medication also has the effect of shortening the
patient s life, neither the doctor nor the staff under the doctor s
supervision incur any civil or criminal liability. It further provides
that the administration of medication under these conditions does not
constitute an intervening cause of death; this will be relevant when
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Treatment of Terminally-ill Patients Bill 2002
there are accusations that some earlier actions of a person or persons
has caused the death of the patient.
Estimated costs for implementation
This Bill will cause no expenditure of money by the government.
Consultation
Consultation has occurred with:
· various doctors, nurses, ministers of religion, palliative-care
workers, people with terminal illnesses and relatives of people
who have died in pain or who have terminal illnesses, in the
electorate of Nicklin;
· The Catholic Archbishop of Brisbane and his advisor on
bioethical matters;
· The Queensland Branch of the Australian Medical
Association;
· The Sunshine Coast Euthanasia Association, the Right to Life
Association Queensland and the Palliative Care Association of
Queensland;
· Pro-Life South Australia and the Palliative Care Council of
South Australia, as to how a similar Act in South Australia has
worked in practice.
Consistency with fundamental legislative principles
The Bill is consistent with fundamental legislative principles.
Although the sometimes-competing rights or desires of patients --
first to continue living and, secondly, to avoid excessive pain -- are
not encompassed by the rights and liberties of individuals listed in
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Treatment of Terminally-ill Patients Bill 2002
section 4 of the Legislative Standards Act 1992, it is appropriate to
comment on this matter here. The Bill attempts to strike a balance
between these two rights in a way that is consistent with both the
common law and religious doctrine.
As to the rights of those treating terminally-ill patients, it is
arguable that the existing law has insufficient regard to the
fundamental principle in section 4(3)(a) of the above Act, that rights
and liberties should not be excessively dependent on administrative
power (ie, in this case, the discretion of the prosecuting authorities).
The Bill is an attempt to remedy that deficiency.
NOTES ON CLAUSES
The Bill is adapted from the Consent to Medical Treatment and
Palliative Care Act 1995 (South Australia), sections 17 and 18.
Clause 1 sets out the short title of the Act.
Clause 2 specifies the persons who may give consent to palliative
treatment which may run a risk of shortening the life of the patient.
Where the patient has capacity to make decisions about health
matters (a term used in both the Guardianship and Administration
Act 2000 and the Powers of Attorney Act 1996), the patient must
give consent. Where the patient has impaired capacity, the clause
refers to the provisions of section 66 of the Guardianship and
Administration Act 2000, which provides:
Adult with impaired capacity order of priority in dealing with health matter
66 (1) If an adult has impaired capacity for a health matter, the matter may only be dealt
with under the first of the following subsections to apply.
(2) If the adult has made an advance health directive giving a direction about the matter,
the matter may only be dealt with under the direction.
(3) If subsection (2) does not apply and the tribunal has appointed 1 or more guardians
for the matter or made an order about the matter, the matter may only be dealt with by the
guardian or guardians or under the order.
(4) If subsections (2) and (3) do not apply and the adult has made 1 or more enduring
documents appointing 1 or more attorneys for the matter, the matter may only be dealt with
by the attorney or attorneys for the matter appointed by the most recent enduring document.
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Treatment of Terminally-ill Patients Bill 2002
(5) If subsections (2) to (4) do not apply, the matter may only be dealt with by the
statutory health attorney.
The statutory health attorney just referred to is defined by s 62 of
the Powers of Attorney Act 1996:
Who is the statutory health attorney
63.(1) For a health matter, an adult s statutory health attorney is the first, in listed
order, of the following people who is readily available and culturally appropriate to
exercise power for the matter
(a) a spouse 66 of the adult if the relationship between the adult and the spouse is close and
continuing;
(b) a person who is 18 years or more and who has the care of the adult and is not a paid
carer for the adult;
(c) a person who is 18 years or more and who is a close friend or relation of the adult and is
not a paid carer for the adult.
(2) If no-one listed in subsection (1) is readily available and culturally appropriate to
exercise power for a matter, the adult guardian is the adult s statutory health attorney
for the matter.
(3) Without limiting who is a person who has the care of the adult , for this section, a
person has the care of an adult if the person
(a) provides domestic services and support to the adult; or
(b) arranges for the adult to be provided with domestic services and support.
(4) If an adult resides in an institution (for example, a hospital, nursing home, group home,
boarding-house or hostel) at which the adult is cared for by another person, the adult
(a) is not, merely because of this fact, to be regarded as being in the care of the other
person; and
(b) remains in the care of the person in whose care the adult was immediately before
residing in the institution.
If there is a disagreement about which of 2 or more eligible people
should be the statutory health attorney or how the power should be
exercised, one has to turn back to the Guardianship and
Administration Act 2000, of which section 42 (Disagreement about
health matter) applies.
Clause 3 provides that where the listed conditions are complied
with, neither a medical practitioner nor persons working under the
practitioner s direction are subject to any civil or criminal liability
should the patient s life be shortened, and provides specifically that
section 296 of the Criminal Code does not apply. The listed
conditions are that:--
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Treatment of Terminally-ill Patients Bill 2002
· the treatment is administered with the sole intention of relieving
pain;
· the parties have acted in good faith and without negligence;
· the consent required under clause 2 has been obtained; and
· the treatment is in accordance with proper professional standards
of health care.
It is anticipated that the proper professional standards will change
from time to time as new medical treatments are available; this
section will place an onus on doctors contemplating the
administration of drugs in dangerous doses to keep up to date with
developments in palliative care.
Clause 4 provides that treatment administered in accordance with
clause 3 does not constitute an intervening cause of death. This may
be relevant in prosecutions for murder or manslaughter, or in related
civil actions, where an earlier action of some person is alleged to
have caused the patient s death. The clause will ensure that the
accused person cannot argue that in fact the death was caused by the
medical treatment.
Clause 5 is included purely for the avoidance of doubt. It is
considered that the text of clauses 2 and 3 makes it absolutely clear
that this Bill does not authorise the administration of drugs where
the intention is the death of the patient rather than the relief of the
patient s pain, but this clause is added to make that intention, if
possible, even more clear.