What is a Doctors duty of care regarding end-of-life care?

Doctors have a duty of care under both common law and statutary law. Under common law, a doctor’s duty of care is to take reasonable steps (as other reasonable doctors would) to save or prolong life or to act in the patients best interests. This duty of care is particularly applicable in the setting of end of life care where:

• a) patient’s ability to consider and communicate their wishes is frequently impaired or lost.
• b) the doctor needs to consider whether investigations and treatments are going to be in the patient’s best interests.

The ethical and legal principles to be considered are as follows ₃₀:

Autonomy

• acknowledges the right of a patient to have control over his/her own life, including decisions about how his/her life should end. (this principle was for example, inscribed into American law in 1914 by Justice Benjamin N. Cordoza –then justice of New Your State Court of Appeals ruling: "[every person] of adult years and sound mind has a right to determine what should be done with his own body. . ."
• encompasses the notion of 'informed consent'
• autonomy is protected by common law. A doctor who knowingly conducts an invasive investigation or procedure against a patient’s wishes can be charged with assault
• autonomy is also protected by statutory law. A doctor who knowingly conducts an invasive investigation or procedure against a legally binding advance directive (e.g. Refusal of Treatment Certificate in Victoria, an Advance Health Directive in Queensland, and the Natural Death Certificate in the Northern Territory) can be charged with medical trespass.

Beneficence

• the duty of beneficence refers to acting in a way that benefits the patient.
• in treatment decisions at the end of life, the dilemma often revolves around what course of action will be in the patient’s best interests. It is difficult to see how death can be a benefit or in the patient’s interests, but in some circumstances, if existing quality of life is so poor, or treatment is very burdensome, then the balance of harms and benefits may suggest that continuing treatment is not a benefit to the patient

27 Common law refers to case made law, system of law that is derived from judges' decisions rather than from legislated statutes. Common law supports every person’s right to refuse treatment now and in the future. The foundation of this common law right is the assumption that people are competent or have mental capacity, and that adults have the decision-making capacity to consent or refuse consent to medical treatments. Once a person is deemed incompetent, and no longer has the mental capacity to make decisions, they loose their right to refuse or to consent to medical treatment under common law. In these situations medical treatment decision-making becomes a role for someone else. A surrogate decision maker is required to make medical treatment decisions on the person’s behalf.

28 Statutory law refers to law derived from legislation. This differs in each state and Territory in Australia.

29 Skene, L. Law and Medical Practice, rights, duties, claims and defences. 2nd Edition, LexisNexis Butterworths, Australia, 2004

30 The ethical principles of autonomy and self determination underlie judicial statements throughout the ‘western world’ that emphasise the need for patients to consent to medical procedures.  In a medical context the principle of autonomy means that patients not their doctors must decide about their medical treatment themselves. In order for consent to be effective, it must be free and voluntary. It must not be induced for example by coercion, sedation or misrepresentation or not understood due to a language barrier.

31 Schloendorff v. Society of N.Y. Hosp., 211 N.Y. 125,129-30 (1914).