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The views and opinions expressed in our blog series are those of the authors and are not necessarily supported by CareSearch, Flinders University and/or the Australian Government Department of Health.
Health professionals need to know the law that governs withholding and withdrawing life-sustaining treatment. Law is not at the centre of the clinical encounter, but it is part of the regulatory framework that governs these decisions. Failure to know and follow the law puts health professionals and their patients at risk.
But we know there are gaps in health professionals’ legal knowledge in this area and this is not surprising either, given how complex and difficult this field of law is (refer to paper ‘Doctor’s knowledge of the law on withholding and withdrawing life-sustaining medical treatment’ (436kb pdf). Not to mention that the law is different in each Australian State and Territory. What should we do? Here we share three suggestions which appear in a paper ‘The Knowledge and Practice of Doctors in Relation to the Law that Governs Withholding and Withdrawing Life-Sustaining treatment from Adults Who Lack Capacity’ (589kb pdf) just published today.
The first is to make sure that health professionals have access to accurate and up-to-date information about end of life law. This can come from policies and guidelines or advice from people with expertise in this legal area – but it must be reliable. Another useful source for information about the law in this area is the website End of Life Law in Australia. We wrote this site drawing on our various legal writings in this area to try and provide a comprehensive and accessible statement of end of life law across all 8 Australian jurisdictions. The website covers issues such as the law governing palliative care, advance directives, withholding or withdrawing treatment, assisted dying and organ and tissue donation.
But just having legal information available is not enough. So the second thing to do is try and encourage health professionals to have an interest in, and commitment to, engaging with law. There is research – at least in relation to doctors – which suggests that attitudes to law in this area are variable. We discuss this in another paper ‘Is there a Role for Law in Medical Practice when Withholding and Withdrawing Life-sustaining Medical Treatment? Empirical Findings on Attitudes of Doctors’ (257kb pdf) also just published today. For law to be known and used, health professionals need to see it as relevant and having a legitimate role in medical practice. We think this should be the case because law is a reflection of community values. So if society has decided through the institution of Parliament (and sometimes the courts) to establish particular legal frameworks for these decisions, then they should be known and respected. This is especially so because end of life decision-making invariably involves value-based judgments. As such, we have argued in this paper (257kb pdf), that law should be seen as part of the clinical expertise needed in making decisions about treatment at the end of life.
Thirdly, we need to fix the law. We have argued in a paper titled ‘The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part3 (Victoria)’ (211kb pdf) at length that the law in this area is too complex, inconsistent and unclear. Also, as noted above, the law is not (but should be) uniform across Australia. These deficiencies in the law are major contributors to gaps in health professionals’ legal knowledge. Getting Governments to move on reforming end of life law is a massive challenge. That said, we have just seen Victoria overhaul its laws in this area so it can and does happen. We urge health professionals to raise these issues when reform is being considered and also to help get law reform on the agenda. Health professionals have an important role to play in making clear the problems that current law causes in practice and the need for reform.
But until the law changes, the best that can be done is ensure that accurate information is available when needed and to persuade health professionals that law is important to consider in decision-making and indeed, is part of their clinical toolkit.
Professor Ben White, Director, Australian Centre for Health Law Research, Faculty of Law, QUT
Professor Lindy Willmott, Director, Australian Centre for Health Law Research, Faculty of Law, QUT
5/02/2017 6:30 PM
Thank you for your very clear & engaging article with great resources. I have accessed the END OF LIFE website and it is a treasure trove of information. Definitely be sharing this one with my colleagues.