The article seems a little confused about precisely what kind of directives should or should not be considered to be binding; some comments in the article seem to suggest that the bind should be total; that all directives should be obeyed.
In South Australia recently, the parliament passed a bill that updated the existing provisions for people to make their wishes known in advance. This update was overdue; the statutes had not been effectively updated prior to this bill since the mid 1990s.
The Brisbane Times article opens by describing the plight of a Mr Peter Browning who, suffering from throat cancer some time ago, is dismayed (according to the article) to find that his directive that he not be resuscitated could have been effectively overridden by Queensland doctors if they felt that Browning's instructions 'conflict with good medical practice'. Interestingly, Browning recovered from his cancer; the article saying that he 'never knew the legal leeway existed'.
The Queensland Law Reform Commission wants this ability for the doctor to vary/ignore/override a written directive to be removed. QUT Health Law Research Centre's Professor Ben White agrees that the override clause on 'good medical practice' is a 'glaring exception' to the national approach. "There has to be a place in society for legally binding advance health directives," says White.
The 'national approach' mentioned by White would seem to refer to an agenda item raised by Australian Health Ministers that they look to a uniform, national scheme. South Australia seems to have gone out on their own with their reforms which, I believe should now be considered as the basis for such a uniform model. More on that a little later on.
White goes on to say, "I'm troubled by the notion that autonomy can only count when we're comfortable with the decision that's been reached." This statement goes to the very heart of the problem: can a person's right to make autonomous decisions bind and override another person's (the doctor's) rights to make their own autonomous decisions in respect to said directives and whether they will or will not carry them out?
Bear in mind also that the Queensland Act only protects a doctor's right to override an advance directive on the basis that he or she believes that directive to be "inconsistent with good medical practice."
We see this false argument for the inviolability of autonomy (read: the right to choose) played out frequently in pro-euthanasia legislation rhetoric. Ultimately, in terms of euthanasia, choice is an illusion precisely because the ultimate choice is the doctors - not the patient's. Patients can request what they like, but the doctor retains the choice to comply or refuse.
It should come as no surprise to note that the Australian Medical Association opposes any move to deny doctor discretion. To force a doctor to comply with any directive, against his or her better judgement is not only an offence against their autonomy (not to mention their training, expertise and experience) it will have the effect of reducing the medical fraternity to mere automatons: dispensing what patients want like a vending machine.
Recognise your right to refuse to carry out services which you consider to be professionally unethical, against your moral convictions, imposed on you for either administrative reasons or for financial gain or which you consider are not in the best interest of the patient. AMA Code of Ethics (revised 2006)
Cue the recent South Australian legislation: The Advance Care Directives Bill does have a binding provision clause with respect solely to directives that concern refusal of care. (Note: all other directives are non-binding). But, even here, there are some notable and justifiable exceptions:
Subject to this Act, an advance care directive cannot make provisions of the following kinds:
(a) a provisionâ€”
(i) that is unlawful; or
(ii) that would require an unlawful act to be performed; or
Exampleâ€”An example of such a provision would be a request for euthanasia.
(iii) that would, if given effect, cause a health practitioner or other person to contravene a professional standard or code of conduct (however described) applying to the health practitioner or person;
The doctor also retains the right to refuse to act as a matter of his or her own conscience.
The doctor also has discretion in terms of whether a particular medical event is the event foreseen by the person making the advance directive as being the trigger for a particular directive. This is vitally important. What if a person with a terminal diagnosis had written a directive to the effect that he or she refuses all forms of medical intervention should they become incompetent and then, whilst otherwise not dying, they suffer a diabetic coma, for example? Should a 'do not resuscitate' directive apply to this circumstance?
Moreover, what if the original diagnosis were proven to be wrong? This is not an unknown occurrence.
During the debate on the SA bill, I raised concerns that the wording of the bill, as it then stood, created a risk (albeit, small) that a directive could be written so as to give effect to a person's wishes to die by starvation and dehydration. In effect, an advance request for euthanasia. Not withstanding the prohibition cited above, this was a possibility as we saw it that, thankfully, was dealt with via government amendments.
Some euthanasia & assisted suicide advocacy groups overseas actually do advise people to consciously refuse to eat and drink so as to effect a premature death. It concerned me that, were the original wording in the SA Advance Care Directives Bill to remain, that domestic advocacy groups may well have begun to advise supporters of a particular form of words for their own advance directives that would have bound doctors to comply with similar intentions.
These type of concerns do need to be balanced with evidence that suggests that patients are receiving 'acute care in hospital that they never wanted'. It is sometimes said that some doctors do see death as a failure of their craft. Over treatment - especially burdensome and futile treatment - can be a cruel and unnecessary imposition. But binding advance care provisions without the tempering effect of the doctor's recourse to his or her own experience (and that of their colleagues and ethics units) and their autonomy is not the answer.
Patient's choices must be respected, but so must doctor's choices.