Palliative Care, Double Effect and the Law in Australia

Internal Medicine Journal, 41(6), pp. 485-492, 2011

Posted: 10 Jul 2016 Last revised: 23 Aug 2016

See all articles by Ben White

Ben White

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Michael Ashby

University of Tasmania

Date Written: 2011

Abstract

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death.

In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

Keywords: Palliative care, End of life decision-making, Criminal law, Doctrine of double effect, Criminal responsibility

Suggested Citation

White, Ben and Willmott, Lindy and Ashby, Michael, Palliative Care, Double Effect and the Law in Australia (2011). Internal Medicine Journal, 41(6), pp. 485-492, 2011. Available at SSRN: https://ssrn.com/abstract=2806830

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Michael Ashby

University of Tasmania ( email )

French Street
Sandy Bay
Tasmania, 7250
Australia

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