The ABC website The Drum recently gave Dr Rodney Syme space to continue his public defence of his actions in respect to the 2009 death of Steve Guest in Melbourne. Syme admits to providing Guest with Nembutal but claims he did so for palliative reasons, saying ‘it was not my intention’ that he should end his life.
Syme’s broader intention seems clear enough: goad the law into acting against him as a way of testing the Victorian prohibition on assisting in suicide, or, should the Police not prosecute or fail in an attempt to prosecute, to build upon such momentum towards reform of the law.
He asks the question, in the title of his article: Am I a criminal or a good doctor? It is a posturing that suits his ends, but, in my opinion, is not the question that needs to be answered. The courts determine criminality or otherwise and whether or not Syme is a good doctor is neither here nor there.
Whether or not the Victorian Police proceed to charge Dr Syme is up to them. Weighing the rules of evidence and the chances of a conviction is an important part of the process. Deciding to charge or not to charge does not alter the nature of the act.
Syme then proceeds to conjure into his corner the ghosts of doctors past and present by way of the claim that doctors have been ‘easing or assisting (depending on your point of view) the deaths of their patients for at least the last 60 years…’. If he means providing the best of care including medication to relieve pain and alleviate symptoms where there is a known possibility that such treatment might shorten life, then, yes, we agree. But Syme’s comments don’t make that clear.
This lack of clarity around the question of intention, outcome and death is continued in a follow up article in The Age newspaper by a Stephen Charles QC. Mr Charles repeated Syme’s reference to the precedent-setting judgement in 1957 by UK Judge, Patrick Devlin in the murder trial of Dr John Bodkin Adams (which gave the principle of double effect the force of law).
Mr Charles summation of the Devlin judgement is more accurate than Syme’s; Charles saying that, ‘the doctor is entitled to do all that is proper and necessary to relieve pain and suffering’ whereas Syme claimed such action to be a duty.
The extended passage from that judgement follows. (The bold text denotes the passage as quoted by Syme):
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 takes may incidentally shorten life.
This is not because there is a special defence for medical men but because no act is murder which does not cause death. We are not dealing here with the philosophical or technical cause, but with the common sense cause.
The cause of death is the illness or the injury, and the proper medical treatment that is administered and that has an incidental effect on determining the exact moment of death is not the cause of death in any sensible use of the term. But ... no doctor, nor any man, no more in the case of the dying than of the healthy, has the right deliberately to cut the thread of life.
This is a precise rendering of the double effect principle as it applies to the appropriate delivery of pain and symptom relief. While Devlin did not see this as a ‘special defence’ – because, properly understood and applied, such actions are not the cause of death – jurisdictions, including some, if not all, in Australia, have since codified such a defence for doctors.
In South Australia the defence provision resides in the Consent to Medical Treatment and Palliative Care Act:
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.
In South Australia at least, a doctor and other medical staff are protected so long as the three qualifying provisions – essentially concerning best practice –are met. There is an adequate defence in law for proper medical practice at the end-of-life and no inherent risk under these defined circumstances. Outside those provisions, of course, (that is: without proper consent, absent good faith or in negligence or outside the prevailing professional standards) a resulting death may indeed come under the scrutiny of the homicide provisions in law – but that is not what we’re talking about here.
So, while Syme focuses, as he might, solely on the issue of intention, correctly observing that it is ‘a difficult concept to prove’, the law (above) constrains the notion of intention within three defining and limiting clauses. Note also that this law talks about ‘administering medical treatment’ which includes, in the definitions: the prescription or supply of drugs. This is precisely what Dr Syme admitted to doing in respect to Mr Guest in 2005.
As the Australian and New Zealand Society for Palliative Medicine (ANZSPM) observes, Treatment that is appropriately titrated (mixture of medications in solution) to relieve symptoms and has a secondary and unintended consequence of hastening death, is not euthanasia. As Professor Tonti-Filippini observed recently in The Age (in reference to earlier articles), the unintended consequence of hastening death is really no longer at issue:
The Age’s recent reporting confuses the issue of supplying a fatal dose of barbiturate and the much more nuanced matter of prescribing pain relief that also shortens life. There is a world of difference between providing treatment of pain with foreseeable side effects that contribute to a shortening of life, and deciding to end someone’s life with an overdose of a sedative. In the former case, the modern-day issue would only be one of competence, because now there are alternative palliative care measures that avoid the need to give morphine at doses that suppress respiration. Drugs are given in combination and carefully titrated to ensure safety and effectiveness. Palliative care is more likely to lengthen life than to shorten it.
Mr Charles poses a question and a solution to what really is a non-problem:
If the community generally accepts that doctors not infrequently hasten the death of their patients to lessen their suffering, and at their request, juries may well be unlikely to convict an accused doctor who acted solely out of compassion, and at the request of a patient with full mental capacity.
In these circumstances the present state of the law is left in a quite hypocritical situation, in urgent need of change. An alternative defence for doctors in these circumstances many argue should be the defence of necessity.
Tonti-Filippini’s assertion that well-managed palliation does not now include this risk of hastening death - a fact confirmed to me a number of times by palliative care specialists -would seem to make Mr Charles’ claims into a house of cards.
Regardless, if the inference is that doctors are acting outside of the law, then the law should have something to say about that and it is not ipso facto an argument for change; rather an argument for enforcement of the law. It is hardly hypocritical. A claimed ‘defence of necessity’ is not needed under law if the intention was not to end the life or to facilitate suicide (inclusive of the qualifying provisions). If the intention was to kill, then no ‘defence of necessity’ could apply unless the doctor’s life was threatened (self-defence).
As both Palliative Care Australia and ANZSPM declare, palliative medicine does not include the practice of euthanasia or assisted suicide; with the World Medical Association going so far as to say that such acts ‘must be condemned by the medical profession’.
I don’t know what decision the coroner made as to the principal cause of the death of Mr Guest in 2005. If, as I suspect, the primary cause was the effect of the ingestion of Nembutal, then the death is not due to ‘the illness or injury’ as Judge Devlin described. If that is the case, it is difficult to see how Syme’s action could be claimed as palliation under the principle of double effect.