Strangers and public servants could have the power to starve people to death, under recently proposed laws, writes Richard Egan.
Guardians, armed with powers to deny a person life-sustaining medical treatment, could be appointed by government agencies in Western Australia to make medical decisions on behalf of incompetent patients.
This is one of the proposals canvassed in a discussion paper, entitled Medical Treatment for the Dying, recently released by WA’s Attorney-General and Minister for Health, Jim McGinty.
The paper makes it clear that the WA Government is not considering legalising active euthanasia, such as briefly existed in the Northern Territory before it was overturned by the Federal Parliament. (Successive attempts by Democrat and Greens politicians to introduce bills to legalise euthanasia in WA’s Legislative Council have failed, with their bills never coming even to a second-reading vote.)
However, the WA Government is committed to introducing legislation that will give legal effect to advanced health-care directives (often referred to as “living wills”) and empower guardians to make medical treatment decisions for incompetent patients.
The “Advance Health Directives” proposed in the discussion paper may include a directive to withhold all life-sustaining measures, including cardiopulmonary resuscitation (CPR), assisted ventilation and the provision of nutrition and hydration by tube (ANH).
Oddly, the discussion paper refers to CPR, assisted ventilation and ANH as “life-sustaining measures used when vital bodily functions are permanently incapable of independent function”.
However, CPR is of course used to restore independent functioning of the heart and would be futile if such functioning couldn’t be restored. ANH is often used to reduce nursing time when hand-feeding of patients is time-consuming. Some people require regular but not permanent assisted ventilation.
Both the recent tragic Florida case of Terri Schiavo, and the 2003 Victorian case of a 68-year-old woman (identified as “BWV”) suffering from dementia, highlight that the purpose of withdrawing “artificial feeding and hydration” is to kill the patient not to withdraw a burdensome treatment. Otherwise why were two children arrested for trying to bring Terri Schiavo a glass of water? In BWV’s case, there was clear medical evidence that she was not imminently dying and that the purpose of withdrawing feeding and hydration was precisely to prevent her continuing to live.
The discussion paper does propose to exclude palliative care, including the “natural” administration of food and water from the measures that can be refused by an advanced health directive. It is not clear whether there will be an obligation to try hand-feeding if tube-feeding is withdrawn.
This distinction between food and water delivered by tube and by spoon – one of which may be withdrawn with the intention of ending life and the other may not – is illogical. How does means of delivery turn feeding into medical treatment which can be denied?
The discussion paper canvasses the range of circumstances to which an advanced health directive may apply: current condition (Victoria); terminal phase of a terminal illness or persistent vegetative state (South Australia); terminal illness (Northern Territory); “illness or injury of such severity that there is no reasonable prospect that he or she will recover to the extent that his or her life can be sustained without the continued application of life-sustaining measures” (Queensland); no restrictions (recommendation of a Queensland 2005 issues paper).
The discussion paper asks whether it should be necessary for someone to have been adequately informed by a medical practitioner before signing an advanced health directive. A major problem with advanced directives is the difficulty of any young healthy person imagining ahead of the event what they would want if faced with a difficult injury, disability or illness. Quadriplegia viewed in advance is devastating – yet many quadriplegics have, after overcoming an initial period of severe depression, found a way of living a meaningful and satisfying life.
The discussion paper ominously asks whether advanced health directives should effectively bind doctors to act even in ways contrary to good medical practice. This would be an outrageous imposition on doctors’ consciences.
The paper proposes that “enduring powers of guardianship” could be granted to a guardian by an adult when competent and would take effect when that adult became incompetent. We all hope we have someone we could trust to make good decisions for us, but life is not always so neat. Guardians may make decisions motivated by malice – greed, impatience, frustration, anger – or ignorance: for example, the young, healthy guardian unable to imagine life as worth living for an elderly frail person with dementia.
The paper asks whether guardians might have power to instruct medical practitioners to withhold or withdraw life-sustaining measures including food and water by tube. This is the scenario in the Schiavo case, where many commentators have pointed out Terri Schaivo’s husband Michael’s conflicts of interest. He was living with another woman by whom he had three children while exercising guardianship rights over Terri’s life and death.
The paper suggests that doctors may be obliged to follow a directive by a guardian even if they consider it contrary to good medical practice. The present system where doctors and family must discuss treatment and neither can trump the other legally, without recourse to the courts, is preferable in order to protect the patient’s well-being.
Guardians with powers to deny a person life-sustaining medical treatment could also be appointed by the Guardianship and Administration Tribunal for an incompetent person who has not appointed his or her own guardian. Strangers and public servants could decide to starve people to death!
Doctors and guardians are to be protected from all civil and criminal liability provided they act “reasonably and in good faith”, even if an advance directive proves to have been invalid. In an age of litigation and rationed health care, this surely provides an unhelpful motive for doctors to get all their patients to fill out advanced health directives!
- Richard Egan