Addressing Consent Gaps in Voluntary Assisted Dying Through the Doctrine of Double Effect

The legal framework governing end-of-life care in Australia has undergone significant transformation in recent years, particularly with the introduction of voluntary assisted dying (VAD) legislation across several states. These laws represent a critical shift in the recognition of patient autonomy and the rights of individuals facing terminal illness. However, despite these advancements, a significant gap remains: the exclusion of individuals who lack or have lost the capacity to consent. This exclusion raises profound questions about equity, particularly regarding how the law applies to some of the most vulnerable patients who are unable to make or express decisions in their final stages.

The focus on consent as a legal threshold for accessing VAD has drawn criticism for creating barriers for those who may be cognitively impaired due to advanced illness, dementia, or other incapacitating conditions.¹ Consequently, the law may fail to serve the very individuals it aims to protect. Amid these debates, an important yet often overlooked aspect of Australia’s end-of-life legal landscape is the doctrine of double effect.

The Doctrine of Double Effect

At common law, the doctrine of double effect (the Doctrine) holds that, provided the intention of treatment is to alleviate pain, a physician will not be deemed to have caused the death of a patient and will therefore not be guilty of either murder or manslaughter if they incidentally hasten the patient’s death through the administration of treatment.² This principle was first articulated in R v Bodkin-Adams, where Lord Devlin stated: “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 he took might incidentally shorten life.”³

The traditional formulation of the Doctrine is underpinned by four key criteria⁴:

1. The action itself must be morally good or at least morally neutral.
2. The agent must not intend the bad effect; only the good effect should be intended.
3. The bad effect must not be the means of achieving the good effect.
4. The good effect must outweigh the bad effect, and there must be no other reasonable alternative to achieve the good outcome.

This ethical framework has long informed end-of-life care, particularly in palliative medicine, where the relief of suffering may, as a secondary effect, hasten death. However, unlike VAD legislation, the Doctrine is not contingent on the decision-making capacity of the patient, as demonstrated in Re Baby D (No 2) [2011]. This case involved an infant born prematurely at 27 weeks, who developed severe complications requiring prolonged mechanical ventilation. The baby suffered hypoxic brain injury after a difficult extubation and reintubation, with MRI scans confirming widespread and irreversible brain damage. Although she remained stable with mechanical support, her prognosis was poor, with no prospect of meaningful recovery.

The treating medical team, supported by the hospital’s ethics committee, recommended the removal of the endotracheal tube, shifting the focus to palliative care, as invasive treatment was no longer in the baby’s best interests. An opinion of the Family Court was sought on whether removing life-sustaining treatment, which could hasten death, required judicial authorisation. Justice Young concluded that the medical procedure of extubation and the foreshadowed administration of palliative care sedation or medication in the current circumstances were for the treatment of a bodily malfunction or disease, namely the baby’s upper airway obstruction. This placed the procedure within the ambit of parental responsibility, as it related to major long-term issues concerning the health, care, welfare, and development of the baby, distinguishing it from a “special medical procedure” as seen in Marion’s Case.⁵

The case highlights how the Doctrine, in many circumstances, allows medical professionals to prioritise the alleviation of suffering in cases where the patient is unable to consent.

Critiques of the Doctrine of Double Effect

Despite its ethical underpinnings, the doctrine of double effect is not without its critiques, particularly regarding its alignment with fundamental principles of criminal law. Firstly, the Doctrine distinguishes the intention of the physician from an intention to kill. However, as established in R v Crabbe [1985] HCA 22, intention to kill can be inferred from either a direct intention or from actions undertaken with knowledge that death is a probable result of those actions.⁶ Secondly, the distinctions between primary and secondary intentions have little relevance in criminal law; once intent to kill is established, the motive behind that intention becomes irrelevant. In scenarios where a physician prescribes end-of-life medications knowing that they may hasten death, the motives for administering those drugs do not mitigate the mens rea required for culpability.⁷ Finally, the Doctrine posits that death is not caused by the painkilling medication itself. This assertion conflicts with established principles of legal causation, wherein any act that hastens death remains a legally relevant cause of action.⁸ Questions also arise regarding whether administering end-of-life medications could be construed as an intervening act.⁹

There are also concerns about the possible “dual intentions” of physicians. Research reveals an inherent ambiguity in medical professionals’ intentions, with studies indicating that many doctors may harbor dual intentions in their practice. For instance, a study involving 800 physicians found that while 77.2% reported no intention to hasten death when administering opioids for pain relief, 22.8% acknowledged a partial intention to do so.¹⁰

Furthermore, there is a lack of oversight and legislative guidance regarding the administration of end-of-life medications in the community. Currently, once these medications have been prescribed by an authorised prescriber and dispensed for the person by a registered pharmacist, there is no prohibition under any Poisons Act in Australia for a person to administer or assist in the administration of this medication.¹¹ This gap permits individuals without adequate training or oversight—such as family members—to administer potent end-of-life drugs. Although the ability to access palliative care and end-of-life medications at home undoubtedly benefits the well-being of an individual and their family, such practices raise serious concerns about the potential for misuse, inadequate dosing, or accidental overdose, as untrained individuals may lack the expertise to monitor patient responses or manage potential complications effectively. Without clear legal frameworks and guidelines, the risk of unintended consequences is significant, potentially undermining the very principles the Doctrine seeks to uphold and opening treating practitioners to liability.

Proposed Solutions

To address these challenges, several potential solutions have been proposed. One avenue is the concept of “defensive consent,” though this remains inapplicable for patients’ lacking capacity, a significant portion of those who may benefit from palliative care. Another potential solution is the defence of necessity, which may afford legal protection for physicians who engage in behaviour to avert a worse outcome. This defence has been recognised in the UK, notably in cases involving conjoined twins, where the court acknowledged the physician’s intention to save one child even while knowing that the actions would result in the death of the other.¹²

Moreover, legislative frameworks in other jurisdictions, such as South Australia’s Consent to Medical Treatment and Palliative Care Act 1995 and Queensland’s Criminal Code Act 1899, offer models that could enhance the legal standing of the Doctrine. These frameworks provide that a medical practitioner administering treatment to a patient in the terminal phase of illness, with the intention of relieving pain or distress and with patient consent, incurs no civil or criminal liability.¹³ Such legislative protections promote clarity and certainty for medical professionals, addressing the ambiguity surrounding the Doctrine’s application and facilitating ethical medical practice.

Conclusion

While the doctrine of double effect provides a valuable ethical framework for guiding end-of-life care and addresses a critical gap in voluntary assisted dying legislation, unfortunately this doctrine typically applies in situations where medical interventions occur in proximity to death, offering an ethical basis for alleviating suffering as patients approach the end of life. In contrast, VAD legislation allows for earlier interventions, creating a disconnect in how legislation addresses patient suffering and consent.

Moreover, the limitations inherent in the Doctrine highlight the urgent need for comprehensive legislative reform in New South Wales. The current legal landscape lacks robust protections for healthcare providers and fails to adequately meet the needs of patients who cannot provide consent. As discussions surrounding VAD legislation continue to evolve, it is imperative for lawmakers to consider the doctrine of double effect as part of a broader framework that safeguards vulnerable patients while ensuring that medical professionals operate within a clear legal context.

Establishing legislative measures that embody the principles of the Doctrine while also safeguarding the rights of patients who lack decision-making capacity would constitute a substantial advancement toward achieving equitable end-of-life care in Australia. Additionally, as the administration of end-of-life medications increasingly shifts to community settings, it is imperative to implement robust oversight and regulatory frameworks. Such measures would ensure that vulnerable individuals receive safe and ethical care while providing healthcare providers with clear guidance to mitigate potential liability.

This article was written by Brit Mainhoff, Partner, and Jessica Woldendorp, Solicitor.

¹ Roger Magnusson, ‘Voluntary Assisted Dying: The Law, Clinical Practice, and Professionalism Regarding the Ending of Life’ (2022) 41(4) Australasian Journal on Ageing 549, 549–555.

² Andrew McGee, ‘Double Effect in the Criminal Coe 1899 [Qld]: A Critical Appraisal’, [2004] 4(1) Queensland University of Technology Law and Justice Journal 45, 47.

³ R v Bodkin-Adams [1956] Crim LR (UK) 365, 375 (Devlin J).

⁴ Ibid.

⁵ Re Baby D (No 2) [2011] FamC 176, 229.

⁶ R v Crabbe (1985) 59 ALJR 417, 419.

⁷ Ian Kerridge, Michael Lowe and Cameron Stewart, Ethics and law for health professions (The Federation Press, 4^th ed, 2013) 702-708.

⁸ Ibid.

⁹ Ibid.

¹⁰ Helga Kuhse et al., ‘End-of-life decisions in Australian medical practice’ (1997) 166(4) Med J Aust 191, 193.

¹¹ Administration of Oral Medications in Community by Support Workers Practice Guidelines, Australian Community Industry Association (as at 2022) <https://www.acia.net.au/ACIA_004_Administration_of_Oral_Medications_in_Community_by_Support_Workers-1-.pdf>.

¹² Re A (conjoined twins) [2001] 2 WLR 480.

¹³ Consent to Medical Treatment and Palliative Care Act 1995 (SA), s 17(1); Criminal Code Act 1899 (Qld) s 282A(1) & (2).