Page 4397 - Week 15 - Tuesday, 19 November 1991
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side of it. The English courts have recognised that where death is imminent - and that has never been defined by the courts, as far as I know - measures to relieve pain and suffering may be taken even if they may incidentally shorten life. There was one Australian case involving this point. It was in the Supreme Court in Melbourne in 1985. The matter was not appealed; therefore, it does not assist me and I do not have time to discuss it.
The next situation is: Can health professionals take a unilateral decision to mark a patient's chart "Not for resuscitation"? That is the problem addressed in the New South Wales Department of Health discussion paper released last year, which I commend to members. It appears that such an action by a health professional may constitute a criminal offence of homicide and also be grounds for civil action for negligence. However, as we know, a doctor is not obliged to carry out patently futile treatment.
The New South Wales natural death legislation, which I commend for examination, provides as follows:
If a person suffers from a terminal illness, death is imminent, no reasonable prospect of recovery with life support, they are of sound mind and over 18 years, they have been fully informed of alternatives and consequences of any action, and a direction is witnessed by two people over 18 years, neither of whom is a treating physician.
We have an enduring power of attorney in this Territory; but, as anyone who read last month's Law Society newsletter would know, at least one of the major banks is refusing to support the power as it is presently framed.
The effect of the direction of that enduring power of attorney on a medical practitioner was referred to by my colleague Dr Kinloch. That enduring power of attorney does not alter a patient's general right to refuse treatment; it does not alter the duty to provide measures, palliative and therapeutic, that are not artificial life support to any patient, whether the patient has made a directive or not; and it does not alter the duty to give artificial life support to a patient who has not made a direction. Of course, I remind members that no-one can authorise an act or omission which causes or accelerates death rather than letting it take its natural course.
US courts use the test of whether one is prolonging death rather than life. No-one can direct prevention of artificial respiration or circulation on a dead person for the purpose of harvesting organs or, where that person is a woman, for the purpose of preserving the life of the foetus. No-one can authorise an act which causes or accelerates death rather than allowing it to take its course. On the legal advice that was available to me as Attorney - and I am indebted to Brendan Bailey of the Law Office for these notes which I have retained - a doctor
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