In my last post we looked at the confusion that is unnecessarily clouding the debate over the Tasmanian euthanasia bill. Nick McKim MP failed to note the necessary distinctions between an action with the direct intention to kill and an action with the intention to relieve pain and suffering.
In September made the same lack of distinction in a media release where he said “With the best of intentions, doctors in Tasmania already administer elevated levels of drugs to terminally ill people, knowing that it will hasten the death of the patient.” Quite correct, but again we are left to wonder if by 'best intentions' he means to end the discomfort and pain or to end the patient.
He goes on to say, “I believe that we need to acknowledge that this practice already happens for the most compassionate of reasons, however we should also acknowledge the need for a stronger framework to protect patients. The Voluntary Assisted Dying Bill will provide better and stronger safeguards for patients.” I'm sorry but I fail to see the connection between the need to protect patients (exactly what from, I'm not sure) and the euthanasia bill.
The media statement goes on to quote two doctors who gave evidence before the 2009 committee of inquiry into Mr McKim's last bill. Both oppose the legislation.
One, Dr Paul Dunne, has responded to all the recent media on this matter by taking the step of writing to Members of the Tasmanian Parliament. What follows is a very clear picture (published on the Tasmanian Times website):
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.
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.
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.
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
FRACGP, FAFPHM, FAChPM,
Palliative Care Physician
Clinical Associate Professor
University of Tasmania