Withholding and withdrawal of ‘futile’ life-sustaining treatment : unilateral medical decision-making in Australia and New Zealand

This article examines the law in Australia and New Zealand that governs the withholding and withdrawal of ‘futile’ life-sustaining treatment. Although doctors have both civil and criminal law duties to treat patients, those general duties do not require the provision of treatment that is deemed to be futile. This is either because futile treatment is not in a patient’s best interests or because stopping such treatment does not breach the criminal law. This means, in the absence of a duty to treat, doctors may unilaterally withdraw or withhold treatment that is futile; consent is not required. The article then examines whether this general position has been altered by statute. It considers a range of suggested possible legislation but concludes it is likely that only Queensland’s adult guardianship legislation imposes a requirement to obtain consent to withhold or withdraw such treatment.

Female genital cutting : An overview of Australian legal principles, ethical controversies, and medical, legal and social challenges

Female genital cutting (also often called female genital mutilation, or female circumcision) is a cultural practice that originated thousands of years ago. Female genital cutting has various forms, some of which are more invasive than others, but all of which produce health, legal and social consequences for those involved. Due to patterns of immigration in Australia, especially since the 1990s, there are women in Australia who have experienced female genital cutting. There may be some families, or some parents, who still hold a cultural commitment to female genital cutting. As a result, female genital cutting presents complex legal, ethical, medical and social challenges in contemporary Australian society. Medical practitioners and other health and welfare workers may encounter women who have experienced genital cutting and who require treatment for its sequelae. Currently, legislative frameworks for female genital cutting vary across states and territories, including the penalties for conducting it, and for removing a child for the purpose of conducting it outside Australia. This presentation provides an overview of the history, nature and consequences of the various forms of female genital cutting, and of the major Australian legal principles, ethical controversies, and medical, legal and social challenges in this field.

Futility and the law: Knowledge, practice and attitudes of doctors in end of life care

Despite the potential harm to patients (and others) and the financial cost of providing futile treatment at the end of life, this practice occurs. This article reports on empirical research undertaken in Queensland that explores doctors’ perceptions about the law that governs futile treatment at the end of life, and the role it plays in medical practice. The findings reveal that doctors have poor knowledge of their legal obligations and powers when making decisions about withholding or withdrawing futile treatment at the end of life; their attitudes towards the law were largely negative; and the law affected their clinical practice and had or would cause them to provide futile treatment.

Feminist ethics and menopause : autonomy and decision-making in primary medical care

The construction of menopause as a long-term risk to health and the adoption of discourses of prevention has made necessary a decision by women about medical treatment; specifically regarding the use of hormone replacement therapy. In a study of general practitioners’ accounts of menopause and treatment in Australia, women's ‘choice’, ‘informed decision-making’ and ‘empowerment’ were key themes through which primary medical care for women at menopause was presented. These accounts create a position for women defined by the concept of individual choice and an ethic of autonomy. These data are a basis for theorising more generally in this paper. We critically examine the construct of ‘informed decision-making’ in relation to several approaches to ethics including bioethics and a range of feminist ethics. We identify the intensification of power relations produced by an ethic of autonomy and discuss the ways these considerations inform a feminist ethics of decision-making by women. We argue that an ‘ethic of autonomy’ and an ‘offer of choice’ in relation to health care for women at menopause, far from being emancipatory, serves to intensify power relations. The dichotomy of choice, to take or not to take hormone replacement therapy, is required to be a choice and is embedded in relations of power and bioethical discourse that construct meanings about what constitutes decision-making at menopause. The deployment of the principle of autonomy in medical practice limits decision-making by women precisely because it is detached from the construction of meaning and the self and makes invisible the relations of power of which it is a part.

QUT Medical Engineering Research Facility (MERF) annual report 2009

DIRECTOR’S OVERVIEW by Professor Mark Pearcy This report for 2009 is the first full year report for MERF. The development of our activities in 2009 has been remarkable and is testament to the commitment of the staff to the vision of MERF as a premier training and research facility. From the beginnings in 2003, when a need was identified for the provision of specialist research and training facilities to enable close collaboration between researchers and clinicians, to the realisation of the vision in 2009 has been an amazing journey. However, we have learnt that there is much more that can be achieved and the emphasis will be on working with the university, government and external partners to realise the full potential of MERF by further development of the Facility. In 2009 we conducted 28 workshops in the Anatomical and Surgical Skills Laboratory providing training for surgeons in the latest techniques. This was an excellent achievement for the first full year as our reputation for delivering first class facilities and support grows. The highlight, perhaps, was a course run via our video link by a surgeon in the USA directing the participants in MERF. In addition, we have continued to run a small number of workshops in the operating theatre and this promises to be an avenue that will be of growing interest. Final approval was granted for the QUT Body Bequest Program late in 2009 following the granting of an Anatomical Accepting Licence. This will enable us to expand our capabilities by provide better material for the workshops. The QUT Body Bequest Program will be launched early in 2010. The Biological Research Facility (BRF) conducted over 270 procedures in 2009. This is a wonderful achievement considering less then 40 were performed in 2008. The staff of the BRF worked very hard to improve the state of the old animal house and this resulted in approval for expanded use by the ethics committees of both QUT and the University of Queensland. An external agency conducted an Occupational Health and Safety Audit of MERF in 2009. While there were a number of small issues that require attention, the auditor congratulated the staff of MERF on achieving a good result, particularly for such an early stage in the development of MERF. The journey from commissioning of MERF in 2008 to the full implementation of its activities in 2009 has demonstrated the potential of this facility and 2010 will be an exciting year as its activities are recognised and further expanded building development is pursued.

Finding a way through the ethical and legal maze : withdrawing medical treatment and euthanasia

This article examines Finnis' and Keown's claim that the intention/foresight distinction should be used as the basis for the lawfulness of withholding and withdrawing medical treatment, rather than the act/omission distinction which is currently used. I argue that whilst the intention/foresight distinction is sound and can apply to palliative pain relief hastening death, it cannot be applied to withholding and withdrawing medical treatment. Instead, the act/omission distinction remains the better basis for the lawfulness of withholding and withdrawal, and law reform is consequently unnecessary.

Recent developments : loss of chance in medical litigation : Tabet v Gett [2010] HCA 12.

Following the judgement of the High Court in Tabet v Gett [2010]HCA 12 handed down on 21 April 2010 it appears that in Australia there is now very limited scope for recovery in negligence for the loss of a chance of a better medical outcome.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Communication ethics in public health

As new diseases and medical conditions emerge, new community groups appear in the public health arena as consumer advocates or lobby groups seeking to affect policy or to represent ‘communities’ formed around these new diseases and conditions. The role of these groups in public health, their political status, and the extent to which they are actually representative are highly problematic for public health. These new constellations of social groups and activities challenge traditional ideas about public health decision-making and demand a rethinking of the constituency and limits of public health. Using discourse theory, symbolic interactionism, and ethological theory, the authors examine one case, exploring the perspectives of various communities on hepatitis C, and explore some issues that this raises for public health.

Hepatitis C and policy implementation : ethics as a dialogic process for resource allocation

Hepatitis C, which was first identified in 1988, has become an important issue for public health as epidemiological and clinical evidence has emerged. These disciplines have highlighted the extent of infection and its medical consequences. Now, governments at both the state and federal levels are sifting through this evidence and are attempting to create structures to deal with the problem of hepatitis C. These structures have generally taken the form of expert committees and working parties organised from established medical, scientific and public health bodies...

Double standards in special medical research : questioning the discrepancy between requirements for medical research involving incompetent adults and medical research involving children

Medical research represents a substantial departure from conventional medical care. Medical care is patient-orientated, with decisions based on the best interests and/or wishes of the person receiving the care. In contrast, medical research is future-directed. Primarily it aims to contribute new knowledge about illness or disease, or new knowledge about interventions, such as drugs, that impact upon some human condition. Current State and Territory laws and research ethics guidelines in Australia relating to the review of medical research appropriately acknowledge that the functions of medical care and medical research differ. Prior to a medical research project commencing, the study must be reviewed and approved by a Human Research Ethics Committee (HREC). For medical research involving incompetent adults, some jurisdictions require an additional, independent safeguard by way of tribunal or court approval of medical research protocols. This extra review process reflects the uncertainty of medical research involvement, and the difficulties surrogate decision-makers of incompetent adults face in making decisions about others, and deliberating about the risks and benefits of research involvement. Parents of children also face the same difficulties when making decisions about their child’s research involvement. However, unlike the position concerning incompetent adults, there are no similar safeguards under Australian law in relation to the approval of medical research involving children. This column questions why this discrepancy exists with a view to generating further dialogue on the topic.

A 3D virtual medical imaging suite : bridging the academic-clinical training boundary

Aims The Medical Imaging Training Immersive Environment (MITIE) system is a recently developed virtual reality (VR) platform that allows students to practice a range of medical imaging techniques. The aim of this pilot study was to harvest user feedback about the educational value of the application and inform future pedagogical development. This presentation explores the use of this technology for skills training and blurring the boundaries between academic learning and clinical skills training. Background MITIE is a 3D VR environment that allows students to manipulate a patient and radiographic equipment in order to produce a VR-generated image for comparison with a gold standard. As with VR initiatives in other health disciplines (1-6) the software mimics clinical practice as much as possible and uses 3D technology to enhance immersion and realism. The software was developed by the Medical Imaging Course Team at a provider University with funding from a Health Workforce Australia “Simulated Learning Environments” grant. Methods Over 80 students undertaking the Bachelor of Medical Imaging Course were randomised to receive practical experience with either MITIE or radiographic equipment in the medical radiation laboratory. Student feedback about the educational value of the software was collected and performance with an assessed setup was measured for both groups for comparison. Ethical approval for the project was provided by the university ethics panel. Results This presentation provides qualitative analysis of student perceptions relating to satisfaction, usability and educational value as well as comparative quantitative performance data. Students reported high levels of satisfaction and both feedback and assessment results confirmed the application’s significance as a pre-clinical training tool. There was a clear emerging theme that MITIE could be a useful learning tool that students could access to consolidate their clinical learning, either during their academic timetables or their clinical placement. Conclusion Student feedback and performance data indicate that MITIE has a valuable role to play in the clinical skills training for medical imaging students both in the academic and the clinical environment. Future work will establish a framework for an appropriate supporting pedagogy that can cross the boundary between the two environments. This project was possible due to funding made available by Health Workforce Australia.

Editorial : Law and ethics for the bioeconomy and beyond

The convergence of biological, technological and economic realms of life has fostered the development of the bioeconomy as a new feature of contemporary society. As the meaning of life and the human body is redefined in the context of the bioeconomy, new challenges have emerged for ethics and law In the face of these challenges, it is imperative that the currency of regulatory frameworks is maintained through the processes of regular review and update. The National Health and Medical Research Council has recently released the new National Statement on Ethical Conduct in Human Research to provide guidance for health research in Australia. The new National Statement will play an important part in supporting innovation and the development of the knowledge economy.