Dear Members of Parliament,

I am writing to you to reject Minister McKim’s assertion that his “Assisted Dying” legislation is needed to provide “safeguards” for doctors.

Nothing New
There is nothing new in the legal opinion provided to Minister Nick McKim from Hobart criminal lawyer David Gunson. It is well established that a doctor who deliberately hastens the death of an individual, even though that individual is already dying could be liable for murder or manslaughter charges.

What was not explained in the reporting of this advice is that the state of the law is well known by the medical fraternity and doctors have never had a free pass to willy-nilly dispatch their patients and act above the law.

The long established practice of providing care and symptom control to the dying should not be mischievously linked to the act of murder in a last-ditch effort to get this legislation through.  

To my knowledge there has never been a prosecution of a doctor providing appropriate palliative care interventions.

Clarifying the boundaries
If there are genuinely held concerns about safeguards for doctors, it is important to ensure that appropriate boundaries continue to be in place to protect the public and guide medical practice.

Even if there was a recognised gap in the Criminal Code, it does not follow that legalising euthanasia or assisted suicide is the way to resolve that issue. I note that other complexities relating to medical practice and death, have been dealt with by much simpler legislative solutions. One example is the amendment to section 27A of the Human Tissues Amendment Act 1987 which effectively removed any potential threat of prosecution for switching off life support systems when there has been an irreversible cessation in a patient’s brain function or blood flow.

I also draw your attention to a system adopted in Ontario, where the Coroner (Dr James Young) has laid down four conditions that need to be satisfied for palliative care interventions to be legal in his jurisdiction. They are eminently transferable to Tasmania and describe well the clinical and ethical basis of palliative medicine practice. These conditions would have wide support in end of life care in differentiating it from euthanasia.

(1) the care must be intended solely to relieve suffering; 

(2) it must be administered in response to suffering or signs of suffering; 
(3) it must be commensurate with that suffering; and 
(4) it cannot be a deliberate infliction of death. 

He stipulates that documentation is required and needs to account for progressive increases in medication levels.

Current practice
My 30 years experience in Palliative Care and the experience of Hospice and Palliative Care practitioners over the past three decades is that the safe and effective use of morphine, other opioids and sedatives in pain and symptom control does not cause death. I must take issue with Dr Helen Cutts who was quoted in the Examiner 10/10 saying that most doctors who have delivered palliative care could be liable for the charge of murder.  She described the practice of increasing the morphine dose until the person is comfortable as good palliative care. The practice of “terminal sedation” where a deliberate decision has been made between the patient (if able), their family and the treating team to manage escalating distress and/or pain through the use of medication does occur but it is the exception not the norm.

The most common reason for “terminal sedation” is to control severe delirium, not to control pain and our experience is that increasing the morphine or other opioids in the absence of pain only adds to the confusion and distress of the individual and severely complicates their dying and adds to the distress of families (and treating staff).  A distinction needs to be made in the intent to prevent and treat suffering, rather than the intent to cause death.

There is no clinical scientific evidence that morphine and other opioids, if used with appropriate skill, cause death. However, like any drug, morphine and opioids are dangerous if used inappropriately.

Improvements Required
Changing the law to give solace to those practitioners who allegedly deliberately seek to end life or need a legal “bolt-hole” to cover their incompetence is in my opinion not warranted.

What is needed is ongoing high-level training for Palliative Care practitioners in the safe and effective use of morphine, other opioids and sedatives in pain and symptom control. As set out above, legal guidelines in Palliative Care that reinforce that such care “cannot be a deliberate infliction of death” may also assist.

In my view the law should retain a certain amount of flexibility because we actually do want laws that provide that doctors could be found guilty of murder or manslaughter where they have deliberately caused the death of their patient.

I am very happy to discuss these issues further with Members of Parliament.

Dr Paul Dunne AM

Palliative Care Physician
Clinical Associate Professor
University of Tasmania