Hot Topics 64 - Health and the Law - Legal Information Access Centre

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End of life issues A major issue in this area is whether elderly people or those suffering a terminal illness can prepare directives specifying the point at which they would like medical treatment not to be initiated or be withdrawn from them. Such ‘living wills’ or ‘advance directives’ are rarely used even though they are encouraged by the NSW Department of Health. 19 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 something like the following: ‘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 be withheld or withdrawn.’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 treating doctors the very important information of what you would consider a minimal acceptable quality of life. They are then in a much better position to judge what treatment will be in your best interests. No specific form is required for an advance directive in NSW, however some organisations have produced documents that can be used. 20 These powers can also be conferred under health care powers of attorney and as a result of legal orders appointing a guardian over a person who is technically incompetent to make decisions about their own health care. 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 by legislation in all states and territories in Australia. Euthanasia and assisted suicide is legal in the Netherlands and Oregon in the US, and controversy continues about image u navailable Voluntary euthanasia supporter Dr Philip Nitschke, outside Central Local Court at the trial of Shirley Justins and Caren Jennings over the death of Graeme Wylie. They were convicted respectively of manslaughter and of being an accessory to manslaughter in June 2008. Photo: Adam McLean, SMH. 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 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. It seems to be settled that doctors following a patient’s lawful direction to refuse life-saving medical treatment are not assisting suicide. 21 palliaTiVe care: pain relief and ‘dOuBle effecT’ In the case of Diane Pretty, Lord Bingham in the House of Lords 22 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. 19. Using Advance Care Directives; available online at http://www.health.nsw.gov.au/pubs/2004/pdf/adcare_directive.pdf; see details on p 23 for ordering free print copies. 20. See for example the detailed form available from Hunter New England Area Health Service http://www1.hnehealth.nsw.gov.au/docs/advanced_care_directive.pdf; and 4 page form in My Health, My Future, My Choice, see p 24 for details. 21. See Re B (Adult: Refusal of Medical Treatment [2002] EWHC 429 (Fam); available at www.bailii.org/ew/cases/EWHC/Fam/2002/429.rtf 22. [2001] UKHL 61, para 14; available at www.bailii.org/uk/cases/UKHL/2001/61.html End of life issues 13
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). 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 case sTudY: messiHa On 17 October 2004, Mr Isaac Messiha, aged 75, was admitted to the Intensive Care unit of the St george Hospital, New South Wales. Mr Messiha, suffered from chronic obstructive pulmonary disease. He had had cardiac surgery ten years earlier, and had been admitted to hospital after a previous cardiac arrest three months earlier. Dr Theresa Jaques, Director of St george’s Intensive Care unit diagnosed Mr Messiha as having suffered a cardiac arrest and resultant severe brain damage. It was estimated that Mr Messiha’s brain had been deprived of oxygen for 25 minutes before ambulance officers arrived and commenced CpR. Over the next few days Dr Jacques and other staff repeatedly evaluated the patient’s condition. The glasgow Coma Score never rose above 5 and was generally 3, the lowest possible reading, consistent with non-purposeful occasional eye-opening. Dr Jacques communicated closely with Mr Messiha’s family and informed them that the results indicated there was no reasonable prospect that Mr Messiha would return to a meaningful quality of life. On 21 October 2004 an electroencephalograph (‘EEg’) showed the complete absence of cortical activity. At this stage the patient was being mechanically ventilated via an endotracheal tube, was being fed via a naso-gastric tube, had an indwelling urinary catheter, was incontinent of faeces and required constant suctioning of saliva by the nursing staff. Dr Jacques proposed that it was in the best interests of the patient that treatment be withheld. This would involve removal of the tubes for ventilation and feeding, and the institution of a donot-resuscitate order covering subsequent cardiac or respiratory arrest. The patient’s relatives disagreed with this proposal. They believed that the patient had spontaneously opened his eyes to voice and they demanded that everything possible be done. They arranged for an eminent independent neurologist to examine the patient on 27 October. The neurologist agreed with Dr Jacques’ assessment of Mr Messiha’s condition, and with her proposal to withdraw active treatment. 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. 23 English courts focus on what would be in the ‘best interests’ of the patient. 24 Where conflict exists between the patient’s family and the patient’s doctors as to whether medical treatment The relatives sought an order from the Supreme Court of NSW that medical treatment not be withdrawn. In the decision handed down on 11 November 2004, Justice Howie found that the court had the power to make the decision about Mr Messiha’s treatment under its parens patriae jurisdiction. This ancient jurisdiction allows superior courts to oversee the care and treatment of children and incompetent adults. Justice Howie clearly stated that the guiding principle under the parens patriae jurisdiction is the best interests of the patient and that medical opinion about that issue would be given great weight: [I]t seems to me that it would be an unusual case where the Court would act against what is unanimously held by medical experts as an appropriate treatment regime for the patient in order to preserve the life of a terminally ill patient in a deep coma where there is no real prospect of recovery to any significant degree. This is not to make any value judgment of the life of the patient in his present situation or to disregard the wishes of the family and the beliefs that they genuinely hold for his recovery. But it is simply an acceptance of the fact that the treatment of the patient, where, as here, the Court is satisfied that decision as to the appropriate treatment is being made in the welfare and interest of the patient, is principally a matter for the expertise of professional medical practitioners… Justice Howie accepted that there was no reasonable prospect of active treatment offering Mr Messiha a return to a meaningful quality of life. On that basis it could not be said that active treatment was in Mr Messiha’s best interests, and the family’s application was dismissed. Isaac Messiha (by his tutor Magdy Messiha) v South East Health [2004] NSWSC 1061; available at http://www.austlii.edu.au/au/ cases/nsw/supreme_ct/2004/1061.html 23. Cruzan v Director, Missouri Department of Health, 497 US 261 (1990); available online at www.law.cornell.edu/supct/html/88-1503.ZS.html 24. Airedale Hospital Trustees v Bland [1992] UKHL 5; available online at http://www.bailii.org/uk/cases/UKHL/1992/5.html 14 HOT TOPICS 64 > Health and the Law
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