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Criminal Code (Palliative Care) Amendment Bill 2003
CRIMINAL CODE (PALLIATIVE CARE) AMENDMENT
BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The object of this Bill is to clarify the obligations of doctors treating terminally-ill
patients and to ensure that doctors, including those that follow their orders, who
administer palliative care to such patients for the purpose of relieving pain and
suffering, are not held under threat of prosecution because an incidental effect of the
treatment is to shorten the life of the patient.
Reasons for the objectives and how they will be achieved
The Criminal Code of Queensland imposes criminal responsibility for the unlawful
killing of another. Depending on the circumstances the appropriate charge will be
murder or manslaughter. An intentional killing, regardless of whether the motive was
to relieve the pain of another, will be murder. A person who assists another to kill
himself or herself is liable to be charged with aiding suicide. Aiding suicide carries a
maximum penalty of life imprisonment.
The common law has developed the doctrine of the double effect principle that
permits medical treatment to be administered to terminally-ill persons to alleviate pain
and suffering although the treatment may hasten death. The principle (R v Pretty
[2001]1 All ER 1) has been recognised by the House of Lords and other common law
jurisdictions.
The double effect principle was set out in the case of R v Bodkin-Adams [1956]Crim
LR 265 (UK) where Lord Devlin instructed the jury:
If the first purpose of medicine, the restoration of health, can no longer be
achieved, there is still much for a doctor to do, and he is entitled to do all that
is proper and necessary to relieve pain and suffering, even if the measures
may incidentally shorten life.
In Queensland the application of the double effect principle is complicated by the
existence of section 296 of the Criminal Code. This provision is a deeming provision
that provides that a person who does any act or makes any omission which hastens
the death of another person who, when the act is done or the omission made, is
labouring under some disorder or disease arising from another cause is deemed to
have killed that person .
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Criminal Code (Palliative Care) Amendment Bill 2003
Section 282 of the Code provides:
A person is not criminally responsible for performing in good faith and with
reasonable care a surgical operation upon any person for the patient s
benefit, or upon any unborn child for the preservation of the mother s life if
the performance of the operation is reasonable, having regard to the patient s
state at the time and the circumstances of the case.
However, section 282 only applies to surgical operations and not medical treatment.
Hence, the provision of most palliative care (for example, pain relief) does not plainly
come within the protection of section 282.
This Bill resolves any doubt as to the criminal responsibility of doctors, and those
following the orders of a doctor, in the administration of palliative care.
Administrative cost to Government of implementation
The Bill will not incur any administrative cost to the Government
Consistency with Fundamental Legislative Principles
The Bill is consistent with fundamental legislative principles. Its purpose is not to
bring about a change in the law but to clearly reflect the common law that already
governs the conduct of those that administer palliative care.
Section 282A does not address consent. The administration of medical treatment,
including palliative care, is already governed by a legal regime. If a person has
capacity to decide their medical care the patient will consent to their medical
treatment. Unauthorised administration of medical treatment would be assault.
If a person does not have capacity the Guardianship and Administration Act 2000 sets
out the hierarchy as to how consent may be obtained (advance health directive,
guardian, attorney, health attorney and statutory health attorney). In cases of dispute
the Act has a series of mechanisms to allow for speedy resolution. A doctor who
administers health care to a patient with an incapacity without consent commits an
offence under the Guardianship and Administration Act 2000.
CONSULTATION
Community
Queensland Branch of Australian Medical Association
Queensland Nursing Council
Queensland Nurses Union
Palliative Care Association Queensland
Government
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Criminal Code (Palliative Care) Amendment Bill 2003
NOTES ON PROVISIONS
PART 1-PRELIMINARY
Clause 1 provides that the short title of the Act is the Criminal Code (Palliative
Care) Amendment Act 2003.
Clause 2 provides that the Act commences on a date to be fixed by proclamation.
Clause 3 provides that the Act amends the Criminal Code.
Clause 4 inserts a new section 282A (Palliative care).
The new section 282A of the Criminal Code provides that a person is not criminally
responsible for providing palliative care to another person providing:
· the person provided the palliative care in good faith and with reasonable care
and skill;
· the provision of the palliative care is reasonable, having regard to the persons
state at the time and all the circumstances of the case.
· the person is a doctor or, if the person is not a doctor, the palliative care is
ordered by a doctor who confirms the order in writing.
Section 282A(1) will apply even if the incidental effect of the provision of the
palliative care is to hasten death.
To ensure the protection of the patient s interests this provision restricts the provision
of palliative care, where the incidental effect of the provision of the care may be to
hasten death, to palliative care provided by a doctor or, if the person providing the
palliative care is not a doctor, the palliative care is ordered by a doctor who confirms
the order in writing. This will ensure, for example, that a heroin user injecting another
person with heroin cannot rely upon the defence in section 282A.
Palliative care is defined to mean care, whether by doing an act or making an
omission, directed at maintaining or improving the comfort of a person who is, or
would otherwise be, subject to pain and suffering. The definition is wide to
encompass all the various treatments that may be administered by doctors. The
definition also embraces the omission of treatment but only if the omission is directed
at maintaining or improving the comfort of a patient.
Reasonable, in respect to section 282A(1)(b), is declared to specifically refer to good
medical practice. The definition of good medical practice repeats the definition used
in the Guardianship and Administration Act 2000. The purpose of the definition is to
ensure palliative carers operate according to the recognised standards, practices and
procedures of the Australian medical profession. A doctor cannot assert his or her
own subjective belief that their practice was reasonable. Section 282A(1)(b) imposes
an objective test that the administration of the palliative care was reasonable having
regard to the person s state at the time and all the circumstances of the case.
Reasonable in this provision is specifically defined as reasonable in the context of
good medical practice.
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Criminal Code (Palliative Care) Amendment Bill 2003
Section 282A(3) provides that nothing in section 282A authorises, justifies or excuses
an act done or omission made with intent to kill another person or aiding another to
kill himself or herself. Section 282A does not, and cannot, provide any justification
for euthanasia or suicide.