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Palliative care, double effect and the law in Australia

White, Benjamin P., Willmott, Lindy, & Ashby, Michael (2011) Palliative care, double effect and the law in Australia. Internal Medicine Journal, 41(6), pp. 485-492.

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Abstract

Care and decision-making at the end of life that promotes comfort and dignity is widely endorsed by public policy and the law. In ethical analysis of palliative care interventions that are argued potentially to hasten death, these may be deemed to be ethically permissible by the application of the doctrine of double effect, if the doctor’s intention is to relieve pain and not cause death.

In part because of the significance of ethics in the development of law in the medical sphere, this doctrine is also likely to be recognized as part of Australia’s common law, although hitherto there have been no cases concerning palliative care brought before a court in Australia to test this. Three Australian States have, nonetheless, created legislative defences that are different from the common law with the intent of clarifying the law, promoting palliative care, and distinguishing it from euthanasia. However, these defences have the potential to provide less protection for doctors administering palliative care. In addition to requiring a doctor to have an appropriate intent, the defences insist on adherence to particular medical practice standards and perhaps require patient consent. Doctors providing end-of-life care in these States need to be aware of these legislative changes. Acting in accordance with the common law doctrine of double effect may not provide legal protection. Similar changes are likely to occur in other States and Territories as there is a trend towards enacting legislative defences that deal with the provision of palliative care.

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ID Code: 46895
Item Type: Journal Article
Keywords: Palliative care, End of life decision-making, Criminal law, Doctrine of double effect, Criminal responsibility
DOI: 10.1111/j.1445-5994.2011.02511.x
ISSN: 1445-5994
Subjects: Australian and New Zealand Standard Research Classification > MEDICAL AND HEALTH SCIENCES (110000) > ONCOLOGY AND CARCINOGENESIS (111200)
Australian and New Zealand Standard Research Classification > MEDICAL AND HEALTH SCIENCES (110000) > PUBLIC HEALTH AND HEALTH SERVICES (111700) > Aged Health Care (111702)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Criminal Law and Procedure (180110)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law and Society (180119)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Law and Justice Research Centre
Current > Schools > School of Law
Copyright Owner: © 2011 The Authors. Internal Medicine Journal © 2011 Royal Australasian College of Physicians
Copyright Statement: The definitive version is available at www3.interscience.wiley.com
Deposited On: 09 Nov 2011 09:02
Last Modified: 09 Nov 2011 09:03

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