Australia is fortunate to have one of the highest standards of palliative care and health care in the world. Despite this, there is increasing anecdotal evidence, both in Australia and overseas, that some people do not have their pain and symptoms adequately controlled as they approach death, suggesting that some may be under-treated or experience pain at the end of life.

This is undesirable not only because of the adverse impact upon a person’s quality of life as they approach death, but also due to the distress this causes the person’s family, and also their treating health professionals.

Research indicates that factors such as delay in identifying patients whose deaths can be anticipated; lack of access to care at the right time; and fears and denial of death by patients, families and health professionals are barriers to appropriate pain and symptom relief at end of life. What is not well known, however, is the extent to which fear among health professionals about possible legal liability (e.g. criminal, civil or disciplinary sanctions) if a person dies after receiving medication contributes to this under-treatment of pain and symptoms.

In a recent article we published in the Journal of Law and Medicine, with colleagues from the University of New England, the University of Queensland, and the University of Technology Sydney, we explored whether concerns by health professionals about possible legal or professional repercussions for providing pain and symptom relief were reflected in the legal system. After examining Australian laws (including legal cases and coronial proceedings) and regulatory frameworks relating to this area, we concluded that these concerns are not well-founded. This is because:

• There are very few instances in Australia where the provision of medication at end of life has been scrutinised by the courts and tribunals. This suggests that very few health professionals who care for people at the end of life are likely to experience formal review of their practice resulting from provision of pain and symptom medication.
   
• Even if a health professional’s conduct is examined, if they are providing treatment in accordance with good clinical practice, they need not be concerned. If the medication has been prescribed and administered in accordance with the accepted standards of clinical practice, no further scrutiny of a health professional is likely.
   
• In the very rare case that criminal charges are being considered, the doctrine of double effect protects a health professional by providing a defence against charges, so long as his or her intention in providing the medication was to relieve pain rather than end the person’s life.
   
• Regulatory bodies focus on improving the provision of care at the systems level to avoid future issues, rather than blaming individual health professionals.

To assist health professionals in aged care to know more about the law, including when providing medication for pain and symptom relief at the end of life, we developed the ELDAC Legal Toolkit. It contains information and resources to help health professionals and aged care workers tackle legal issues that commonly arise in aged care practice.

The Toolkit contains factsheets, mythbusters, case studies and resources on legal topics including Medication for pain and symptom relief (palliative medication). In that factsheet we explain the law on providing palliative medication, including why appropriate palliative medication is lawful, and the protection provided by the doctrine of double effect. The case study on that topic also provides an example of appropriate, lawful administration of medication for pain and symptom relief.

For those who are interested in learning more, we also recently launched at QUT a free online training program called End of Life Law for Clinicians. This training has an online module about Providing Palliative Medication (Module 6), which can be accessed by registering through the ELLC online training portal.




Professor Ben White, Australian Centre for Health Law Research, Queensland University of Technology





Professor Lindy Willmott, Australian Centre for Health Law Research, Queensland University of Technology




Distinguished Professor Patsy Yates (Head of School), School of Nursing, Queensland University of Technology





Penny Neller, Australian Centre for Health Law Research, Queensland University of Technology