By Meredith Blake
Associate Professor, Law School
There may be nothing more certain in life than death (and taxes). But with advanced medical technology, the process of dying has become increasingly more complex and medicalised.
Essentially, it has become more difficult to die.
We live in an increasingly secular community, in which individuals are comfortable in asserting their rights to control their own destiny, and questioning medical decisions. The coining of the term ‘right to die', while often misappropriated, is a result of these attitudinal changes.
The issue of the ending of life in the clinical context is one which extends beyond medicine, and encompasses religion, philosophy, ethics and economics. It represents a complex, multi-layered challenge for legal regulation. When is it in the best interests of a person to cease life-sustaining medical intervention? Should people be able to request medical assistance in hastening death? In what circumstances can doctors decide not to resuscitate profoundly disabled young children? These are some of the questions which illustrate this challenge.
A letter to the Medical Journal of Australia of 16 July 2012, questioned the place of resuscitation of very sick elderly patients where the survival rate is only 3.4 per cent. It asks for earlier discussion about advance care planning and more clarity in documentation. An earlier edition debated the merits or futility of treatment as a factor in medical decision-making at the ending of life.
How the law can and does reflect the deeply-felt attachment to the sanctity of human life, and how it accommodates the challenges presented by modern medicine and an ageing population, as well as the growing culture of entitlement to rights, is hugely important for law and policy makers. Any system of legal regulation cannot afford to ignore the ethical discourse surrounding action and inaction at the end of life.
The primary way that society protects the sanctity of life is through the law on homicide. The most serious offence we have is murder. The law also criminalises the aiding of suicide. Viewed through the prism of criminal law, several examples of medical intervention and non-intervention at the ending of life appear to represent potentially criminal conduct.
Of particular concern are those situations in which lifesustaining treatment is withdrawn, some instances of nonresuscitation, terminal sedation and where patients request help in dying. Medical professionals have a duty to act in the best interests of their patients; they also have a duty to respect a patient's autonomous wishes. A request by a competent patient to withdraw life-sustaining treatment may give rise to a conflict of those duties. When the law adopts the language of rights, the conflict appears to become intractable; courts have long been troubled by arguments about when, if ever, the right to self-determination should trump the sanctity of life.
Whilst the law is inherently reactive in nature, and therefore can always be expected to be "in the rear and limping a little" behind medicine, it needs to be more consistent and coherent in its approach to the ending of life in the clinical setting.
Some steps towards this end have already been taken. At the beginning of 2010 the Guardianship Act was amended to reflect a growing desire of individuals to have more control over the ending of their lives, the introduction of formal advance health care directives, and the ability of appointed guardians to make end-of-life decisions. Interestingly, the main point of legal reference for the medical professional treating a currently competent individual at the ending of life remains the criminal law.
Brutal and indiscriminately caused death is one thing. The concern to relieve pain in the face of certain death, the desire to avoid the burden of resuscitation of a life of intolerably poor quality, and the wish to respect an individual's preference for an end to artificial prolongation of life are different matters. The law needs to ensure it is reflecting these distinctions.
Published in UWA News, 6 August 2012