Legal aspects of palliative care

Julian Gardner

Substitute decision-making

• Increasing in number– Ageing population– Incidence of dementia

• Increasing in complexity– Advances in medical science

Consent to medical treatment

• There must be consent except– Emergencies– Certain authorised treatment– Non intrusive examination– First aid

Who can consent?

• A competent adult

– “incompetent” if• (a) is incapable of understanding the general nature

and effect of the proposed procedure or treatment; or• (b) is incapable of indicating consent

Who can consent?

• A competent adult• A ‘person responsible’ on behalf of an

incompetent adult– A person appointed by the patient when

competent– A person appointed by VCAT (including guardian)– Spouse– Nearest relative

Refusing medical treatment

• A competent adult can refuse treatment

Refusing medical treatment

• A competent adult can refuse treatment• Refusing treatment is not the same as

euthanasia

Refusing medical treatment

• A competent adult can refuse treatment• Refusing treatment is not the same as

euthanasia• An agent or guardian can refuse on behalf of a

person lacking capacity, but only if– Treatment would cause unreasonable distress, or– Person would have considered it unwarranted

When is it lawful to withdraw treatment?

• When adult refuses it• When agent or guardian refuses it• When doctor considers it to be futile

Treatment can be refused in advance

• Courts have upheld prior expressions of wishes

• No guarantee that wishes will be followed

• Only Refusal of Treatment Certificates are binding

Palliative care cannot be refused using a Refusal of Treatment Certificate

• Definition of palliative care– the provision of reasonable medical procedures

for the relief of pain, suffering and discomfort; or– the reasonable provision of food and water

• Is food and water provided by a PEG

– Medical treatment which can be refused or– Palliative care which cannot be refused?

• Is it the “reasonable provision of food and water”?

Making medical treatment decisions in a person’s best interests

• Person’s wishes• Family’s wishes• Consequences of not treating• Alternative treatments• Nature and degree of significant risks• Whether solely to promote health and well-

being

How to decide whether or not to implement palliative care when there

is no evidence of a person’s wishes

• The case of Maria Korp

Australian Catholic Bishops’ Committee for Doctrine and Morals

• “As the Pope wrote in Evangelium Vitae, ‘Euthanasia must be distinguished from the decision to forgo… medical procedures which no longer correspond to the real situation of the patient, either because they are by now disproportionate to any expected results or because they impose an excessive burden on the patient and his family…. To forgo extraordinary or disproportionate means is not the equivalent of suicide or euthanasia; it rather expresses acceptance of the human condition in the face of death’ “ 3/9/04

The importance of advance care planning

• Article in British Medical Journal “The impact of advance care planning on end

of life care in elderly patients: randomised control trial”

• Detering KM, Hancock AD, Reade MC, and Silvester W, BMJ 2010:340:c1345 doi:10.1136/bmj.c1345

ACP trial study

• To what extent were end of life wishes known and respected– 86% of the group with ACP– 30% of the control group

ACP trial study

• To what extent were end of life wishes known and respected– 86% group with ACP– 30% control group

• Quality of death from patient's perspective assessed as very satisfactory– 86% of the group with ACP– 37% of the control group