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The criminal law governing medical decision-making about the end of
life is based on the doctor's intention. If the intention of treatment
is to hasten or bring about the patient's death, whether by withdrawal
of life-prolonging treatment, by administration of terminal
sedation or a lethal bolus injection, the doctor could be prosecuted
for murder.
The survey of attitudes and practices of general surgeons in
Australia by Douglas and colleagues in this issue
of the Journal highlights some of the problems with using "intention"
as the key factor for determining the moral and legal status of medical
acts. Of the survey respondents, 36% indicated that, for the purpose
of relieving a patient's suffering, they had given drugs "in doses
greater than those required to relieve symptoms, with the
intention of hastening death".1 This type of intervention
has been referred to as "slow euthanasia".2,3 Theoretically, if the
existing criminal code could be unswervingly applied, the survey
findings suggest that many general surgeons in Australia could be
prosecuted for murder, and possibly imprisoned, because of their
care of terminally ill patients!
In South Australia, the Consent to Medical Treatment and
Palliative Care Act 1995 states:
A medical
practitioner responsible for the treatment or care of a patient in the
terminal stage of a terminal illness . . . incurs no civil or criminal
liability by administering medical treatment with the
intention of relieving pain or
distress . . . even though an
incidental effect of the treatment is to hasten the death of
the patient.4
The Act acknowledges the special context of a therapeutic clinical
relationship, and affords some protection to clinicians who
palliate terminal suffering. But the SA Act does not encourage
openness and honesty in reporting responses to patients' requests
for a hastened death, nor does it protect doctors who intentionally
hasten death to relieve suffering.
Under existing criminal law in SA and elsewhere, doctors could be
prosecuted because of the way they express their intent about a
treatment which hastens death, while other doctors who administer
the same kind of treatment, but express their intent as "palliative
only", could remain free to practise. If they were brought before the
criminal courts, many of the general surgeons who participated in the
survey by Douglas et al, and indicated they administered medication
with the intention of hastening death, would probably give different
answers about their care, perhaps with less forthright honesty.
Can a hastened death be truly described as "unintended" and
"incidental" if clinical reasoning makes it foreseen, it is
discussed with the patient and carers, agreed to, and then
deliberately proceeded with?
Intention is inherently subjective; it can be complex, ambiguous,
and paradoxical.5 The clinician's intention
may also be difficult to infer, for example when the method of
hastening death involves a separation (in time) between the
initiation of an infusion of drugs and the patient's death. Moreover,
the progression of disease can confound any causal link between
administration of the drugs and the patient's death. On the other
hand, a lethal injection reveals a clear intention to end the
patient's life and it is therefore more amenable to being policed.
According to the survey by Douglas et al, 54% of respondents thought
that there were circumstances in which it might be morally acceptable
to give large doses of drugs with the intention of hastening death,
although the proportion agreeing with this varied widely according
to religious affiliation — from 31% for Roman Catholics to 70% for
those of no religion.1 Some religious
organisations have vigorously opposed medical euthanasia, but, for
many people, the values of compassion, mercy for those who are
suffering and the "do unto others" principle are sometimes
compatible with euthanasia.
The survey findings highlight an obvious discrepancy between the
existing legal framework and what a majority of general surgeons in
Australia see as morally acceptable terminal care. In the context of
suffering with advanced disease, a rational patient may genuinely
want a hastened death and this may not be regarded as "bad" (as assumed
by traditional laws about murder). Those closest to a terminally ill
patient will frequently regard his or her eventual death as a
"merciful release" and "a blessing".
The duty of doctors is to strive to satisfy the wishes and interests of
their patients and their patients' loved ones, and this duty can
conflict with the crude criminal code. This conflict serves neither
medicine nor respect for the law. Intention in relation to the time of
death, by itself, is an inadequate moral and legal basis for medical
decisions in terminal care. Quill observed that "our current ethical
thinking and legal prohibitions reinforce self-deception,
secrecy, isolation, and abandonment at a time when the exact opposite
is needed".5
I question medical organisations' support for the existing law that
puts many doctors at risk of most serious charges. If a doctor can
demonstrate competent care that is in accordance with the patient's
wishes and interests there should be immunity from prosecution. The
survey by Douglas et al adds weight to arguments for a refinement of the
criminal code or a reform of statute law. It also points to the need for
further research to better understand the ethical paradigms used by
doctors in terminal care.
Roger W Hunt
Senior Consultant and Lecturer in Palliative Care
Flinders University, Adelaide, SA
- Douglas CD, Kerridge IH, Rainbird KJ, et al. The intention to hasten
death: a survey of attitudes and practices of surgeons in Australia.
Med J Aust 2001; 175: 511-515.
-
Hunt RW. Palliative care — the rhetoric-reality gap. In: Kuhse H,
editor. Willing to listen — wanting to die. Melbourne: Penguin,
1994.
-
Billings JA, Block SD. Slow euthanasia. J Palliat Care
1996; 12: 21-30.
-
Consent to Medical Treatment and Palliative Care Act, 1995.
<www.pallcare.asn.au/jcpall.htm> (accessed October
2001).
-
Quill TE. The ambiguity of clinical intentions. N Engl J Med
1993; 329: 1039-1040.
©MJA 2001
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