Double Effect and Palliative Care Excuses
White, Ben, McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia (Third Edition). Thomson Reuters, Pyrmont, New South Wales, pp. 625-646
Posted: 28 Aug 2018
Date Written: August 17, 2018
The doctrine of double effect is an exception to the general rule that taking active steps that end life is unlawful. The essence of the doctrine at common law is intention. Hastening a patient’s death through palliative care will be lawful provided the primary intention is to relieve pain, and not cause death, even if that death is foreseen. Some States have enacted legislative excuses that deal with the provision of palliative care. These statutory excuses tend to be stricter than the common law as they impose other requirements in addition to having an appropriate intent, such as adherence to some level of recognised medical practice. The emerging practice of palliative sedation which is aimed at managing the patient’s refractory symptoms may be lawful, depending on the circumstances of the case. Palliation provided to a competent patient who has chosen to stop eating and drinking may be lawful, depending on the circumstances of the case.
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