Health Law

End of Life Issues

Living Wills, Powers of Attorney and Guardianship

The Medical Treatment (Health Directions) Act 1994 (ACT)allows a person of sound mind over 18 years to make a signed and witnessed written direction in accordance with schedule 1, or an oral direction witnessed by two registered doctors or nurses, refusing or seeking the withdrawal of medical treatment, either generally or of a particular kind (ss 6-8). Such a person may also give another power of attorney to refuse of withdraw medical treatment in accordance with the second form in schedule 1.

Before proceeding to follow such a direction, a doctor must tell the patient about the nature of his or her illness, alternative treatments and their consequences, and the consequences of non treatment (s 11). Good faith reliance by a doctor on such a direction shall exempt him or her from any charge of professional misconduct, offence against an ACT law or civil liability.

Such "living wills" or "advance directives" are rarely used. Part of the problem is that people find it very difficult to second guess what circumstances they will be in and what medical treatment they might need. An alternative worth considering is to include the following clause in Form 1 under schedule 1 "I (name) DIRECT that medical treatment (which is not reasonably likely to return me to the following situation which I consider to be a minimum acceptable quality of life) be withheld or withdrawn." This formulation gives your treating doctors the very important information of what you would consider a minimal acceptable level of quality of life. They are then in a much better position to judge what treatment will be in your best interests.

These powers can also be conferred under s 13 of the Powers of Attorney Act 2006 (ACT).

Voluntary Euthanasia

Voluntary euthanasia, "mercy killing" or "assisted suicide" involves the deliberate killing of another non-depressed human being at his or her request in order to reduce pain or assaults on human dignity related to a terminal illness. It has been rendered illegal in the ACT as the result of Commonwealth legislation. The Euthanasia Laws Act 1997 (Cth)schedule 2 amended the Australian Capital Territory (Self-Government) Act 1988 (Cth)to insert s 23(1A): "The Assembly has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life."

Euthanasia and assisted suicide is legal in the Netherlands and Oregon in the US and controversy continues about law reform in this area. Research suggests that many doctors assist terminally ill patients to die, but do not publicise the fact. In the Diane Pretty case, the European Court of Human Rights held that the human right of respect for privacy (see s 12 Human Rights Act 2004 (ACT)) was engaged where the State prevented a patient exercising her choice to avoid what he or she considered to be an undignified and distressing end to his or her life. This is relevant only to law reform, as any assistance with suicide in the ACT would be contrary to the Commonwealth legislation set out above.

It seems to be settled that doctors following a patient's lawful direction to refuse life-saving medical treatment are not assisting suicide (see Re B (Adult: Refusal of Medical Treatment) (2002) 2 All ER 449).

Palliative Care, Pain Relief and "Double Effect"

Palliative care begins at the point where doctors consider that medical treatment is technically "futile", that is treatment is not reasonably capable of returning the patient to a quality of life he or she would consider meaningful. The focus of palliative care is on pain relief and dying with dignity.

Clare Holland House provides palliative care in the ACT in a tranquil setting on the upper Molonglo River near the Boat House.

The doctrine of medical ethics known as "double effect" allows doctors to continue to relieve pain by incremental doses of drugs such as opiates (morphine) even if the unintended effect of such pain relief is death of the patient (usually from suppression of the neurons in the brain that drive the patient to breathe). This is a standard conception in all palliative care work and is not the same as euthanasia as the primary intention is to relieve pain, not to kill the patient.

In the case of Diane Pretty (2002) 1 FLR 268 at 278, Lord Bingham in the House of Lords considered that the human rights prohibition on "cruel, inhuman or degrading treatment" might be engaged where a public official had forbidden the provision of pain-killing or palliative drugs to a terminally ill patient (see also s 10 of the Human Rights Act 2004 (ACT)).

Withdrawing or Withholding Treatment and "No CPR" Orders

Doctors cannot be forced by relatives of a patient to commence or continue medical treatment that is technically "futile", that is, incapable on reasonable grounds of returning the patient to a meaningful quality of life. The most difficult task where the patient is unconscious or otherwise incompetent is to get good evidence of what the patient would regard as a "meaningful quality of life". United States courts tend to try and obtain evidence from relatives and friends about what the patient would have wished (Cruzan (1990) 497 US 261). English courts focus on what would be in the "best interests" of the patient (Bland's Case (1993) AC 789).

In the absence of a health care power of attorney or valid advance directive, relatives in the ACT do not have the legal authority to consent to the continuance or withdrawal of medical treatment. In such a situation, s 67 of the Guardianship and Management of Property Act 1991 (ACT)permits the Public Advocate to be appointed as guardian. Most doctors will consult with the immediate family of an acutely incapacitated patient as if they had the power to consent to medical treatment.

Where conflict exists between the patient's family and the patient's doctors as to whether medical treatment that is apparently "futile" should be continued, the issue is best discussed before the Hospital's Clinical Ethics Committee. Ultimately, if such disagreement persists, a declaration to lawfully withdraw treatment may have to be obtained from the ACT Supreme Court. If the relatives continue to dispute a withdrawal of treatment decision, the relevant doctors should specify that as a reason for not signing the death certificate should the patient thereafter die. This will then activate the jurisdiction of the Coroner and facilitate a more objective third-party resolution of the issues.

"No CPR" orders may be written in consultation with a terminally ill patient and the patient's family, in accordance with hospital guidelines, to avoid the indignity of life ending in the pressure of an emergency attempt at cardio-pulmonary resuscitation. This might possibly involve deep chest compressions, cardiac "shocks" with a defibrillator, the insertion of intravenous cannulae and giving of drugs such as adrenaline.

Organ Donation by Brain-Dead Persons

Section 45 of the Transplantation and Anatomy Act 1978 (ACT) states that a person has died when there has occurred:

• irreversible cessation of all function of the brain of the person; and
• irreversible cessation of circulation of blood in the body of the person.

Section 35 of the Births, Deaths and Marriages Registration Act 1997 (ACT) requires that a medical certificate must be completed for every death, even where the death has been reported to the Coroner.

If, after reasonable inquiries, a deceased person is shown to have agreed to organ donation during his or her life, written authorisation may be given by the designated officer of a hospital, or the senior available next of kin, for removal of such tissue (Transplantation and Anatomy Act 1978 Part 3). This will not apply if the Coroner needs to hold an inquest (s 29).

Where the person is being kept alive by artificial ventilation and circulatory support, authority for organ donation must not be given unless the patient has been declared brain dead independently by two medical practitioners, each with at least 5 years experience and one of whom is a specialist neurologist or neurosurgeon (s 30). The tests these doctors perform include checking for absence of brain stem function through whether the pupils, or the eyes in general, respond to pain, light or cold water in the ears, and whether the patient has a gag reflex and tries to breath after being disconnected from the ventilator (the blood's rising carbon dioxide level will normally trigger the respiratory centre in the brain stem).

The law operates on the principle that the views that a person expressed while alive about organ donation will be respected once he or she is dead. If the deceased person's views are not known, it is left to the next of kin to decide whether that person should become an organ donor. If the views of the deceased person are not known and no relative can be found, the person may be used as an organ donor although in practice staff seem reluctant in such cases.

The most practical way of ensuring that your views about organ donation are made known to hospital staff is to always carry a signed written statement in your wallet indicating whether or not you are prepared to be an organ or tissue donor, or to register with the Australia Organ Donor Register.

Autopsies

The purpose of a post-mortem examination (an autopsy) performed by a pathologist is to better understand the factors that may have contributed to the person's death. This information may be important for the next of kin (eg. if the person died from an infectious or genetic disease), or for the community as a whole (in identifying or tracing outbreaks of disease; in teaching doctors and nurses; and in checking the quality of the hospital's diagnostic and treatment procedures). The autopsy report will be made available to a medical practitioner nominated by the relatives of the deceased.

Consent is required prior to carrying out a post-mortem examination unless it is ordered by the Coroner. As is the case with organ and tissue donation, the law operates on the principle that the person's expressed wishes, while alive, about the use of his or her body when they are dead, will be respected after their death (Transplantation and Anatomy Act 1978 s 32). Therefore the law on consent for post-mortem examinations and for donation of bodies to medical schools is, in most respects, the same as for organ and tissue donation after death.

The Coroner may dispense with a post-mortem if requested by an immediate family member of deceased or that person's representative if already satisfied "that the manner and cause of death are sufficiently disclosed" (Coroner's Act 1997 (ACT) s 20).

Coronial Enquiries

The ACT Coroners Court is based at the ACT Magistrates Court and the Chief Magistrate is Chief Coroner of the ACT.

A Coroner has a wide discretion in deciding whether to hold an inquest into a reported death or whether to dispense with an inquest and complete an inquiry without a public hearing. (s 14) The Coroner's Act 1997 (ACT)s 13(1) permits a Coroner to hold an inquest into the manner and cause of death of a person who is:

• killed;
• found drowned;
• dies or is suspected to have died, a sudden death the cause of which is unknown;
• dies under suspicious circumstances;
• dies during or within 72 hours after a medical, surgical or dental operation or an invasive medical or diagnostic procedure;
• dies and a medical practitioner has not given a certificate as to the cause of death;
• dies having not been attended by a medical practitioner at any time within the period commencing 3 months prior to the death;
• dies after an accident where the cause of death appears to be directly attributable to the accident;
• dies, or is suspected to have died, in circumstances that, in the opinion of the ACT Attorney General, should be better ascertained; or
• dies in custody.

The ACT public relies on its Coroners to determine the identity of deceased persons, the reason for their death and to refer deaths resulting from an apparent indictable offence to the Director of Public Prosecutions. The Coroner cannot, however, make a finding of guilt or innocence, but rather must establish that a person has a case to answer for the death.

The Coroner may hold an Inquest (a court hearing) to assist in determining the manner and cause of death. These proceedings are generally open to the public and witnesses are called. An Inquest must be held if the death appears to have arisen after or during administration of an anaesthetic. A spouse, parent or an adult child of a deceased person my request an Inquest (Coroner's Act 1997 Part V).