DOE: Letter to SA Parliament re Medical Defences Bill Sept 2011

Dear ,

Further to our previous letters to you opposing the Criminal Law Consolidation (Medical Defences – End of Life Arrangements) Amendment Bill 2011, we wish to emphasise to you our wholehearted agreement with the contents of the letter recently sent to you under the auspices of the Australian Medical Association (SA Branch) and the Law Society of South Australia.

We note, in particular, the AMA (SA) President’s reference to the Consent to Medical Treatment and Palliative Care Act 1995 and the provisions therein that protect medical practitioners from criminal liability when they are ‘responsible for the treatment or care of a patient (in terminal phase of a terminal illness)’.

The 1995 Act states in Sections 16 & 17:

16—Protection for medical practitioners etc

A medical practitioner responsible for the treatment or care of a patient, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, incurs no civil or criminal liability for an act or omission done or made—

(a) with the consent of the patient or the patient's representative or without consent but in accordance with an authority conferred by this Act or any other Act; and

(b) in good faith and without negligence; and

(c) in accordance with proper professional standards of medical practice; and

(d) in order to preserve or improve the quality of life.

Division 2—The care of people who are dying

17—The care of people who are dying

(1) A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, incurs no civil or criminal liability by administering medical treatment with the intention of relieving pain or distress—

(a) with the consent of the patient or the patient's representative; and

(b) in good faith and without negligence; and

(c) in accordance with proper professional standards of palliative care, even though an incidental effect of the treatment is to hasten the death of the patient.

(2) A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner's supervision, is, in the absence of an express direction by the patient or the patient's representative to the contrary, under no duty to use, or to continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery or in a persistent vegetative state.

The bill in question has been characterized as a defence for medical practitioners when, in reality, it is about creating an opportunity for doctors to end the lives of patients, in other words: euthanasia.

Should the medical community see a need for additional protection from criminal liability (other than the protections already provided), we would expect that representation to such an end would be made via the AMA or relevant peak specialist body to the various states and federal health ministers.  This would have followed a documented need being represented to the AMA by medical professionals and then onward to the minister in question.  If the minister determined that the claim warranted legislative change, then in the normal course, such change would be a government amendment bill in the name of the health minister amending acts such as that quoted above.

In this instance, none of the above took place.

Yours sincerely,

Dr Daniel Thomas MBBS, B Med Sci (Hons), FRACP, FRCPA
Haematology Consultant, Cancer Specialist

Mr Robert Britten-Jones, AO MB BS FRACS FRCS(Eng)
Emeritus Consultant Surgeon at the Royal Adelaide Hospital

Signed on behalf of the full list of signatories (below):

Co-signatories: (signed on original)

  Letter to SA Parliament re Medical Defences Bill Sept 2011