Page 641 - Week 03 - Tuesday, 23 March 1993
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Many Australian jurisdictions have already considered this issue. South Australia, Victoria and the Northern Territory - the Northern Territory under a Liberal government - have made legislation to protect the right to natural death. Such legislation allows a patient to refuse medical treatment. It protects doctors who heed this request from criminal or civil liability. It permits the withholding or withdrawal of medical treatment, including turning off a life support machine. It is worth remembering that in the ACT attempted suicide is not a criminal offence. However, assisting any person to commit suicide is a criminal offence under subsection 17(1) of the Crimes Act 1900 and possibly a range of other Crimes Act offences. A person's consent to the withdrawal or withholding of treatment will not remove potential criminal liability.
While this provision seems straightforward, it offers scant practical assistance to medical practitioners responsible for making decisions about the use of life prolonging treatment or equipment. A practitioner may incur a serious criminal liability if a decision results in the death of a patient. This is because a doctor or nurse who assumes care and treatment of a person has certain common law duties to that person. They must use all ordinary means of preserving life if other reasonable doctors would have thought to save or prolong life in the same circumstances. This may include providing a patient, with or without their consent, all medicines, treatments and operations that offer a reasonable hope of benefit for the patient and which can be obtained and used without excessive expense, pain or other inconvenience.
While the issue of natural death is relevant to all people who suffer painful terminal illnesses, and their families and care givers, it is of special concern in respect of the increasing number of elderly people who live in accommodation serviced by on-call medical professionals. In 1986 the New York Times noted that 80 per cent of all deaths in the United States occur in such institutions. The New York Times pointed out that:
... allowing someone to die naturally now involves a whole team of professionals who must consciously decide not to do what they can do. Few know the patient or family well but all have their own fiercely held views on professionalism and ethics as well as fears of litigation.
While the number of deaths in ACT institutions has not reached the American levels, more than 20 per cent of deaths in the ACT occur in our full-care institutions. Surprisingly, there is little readily available information about deaths in supported accommodation. Anecdotal material suggests that natural death is practised within the medical profession. A paper prepared for the National Bioethics Consultative Committee in February 1989 stated:
A recent report indicates that not only did 62 per cent of Australian doctors questioned support mercy killing, but one in eight admitted carrying it out.
An obstacle to determining how often natural death occurs in Australia is the problem of determining what just facilitating death is. There are times when a person's death is inevitable.
Mr Cornwell: Everybody's death is inevitable.
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