Legal Uncertainty and Double Effect
With origins dating back to the work of Thomas Aquinas, the doctrine of double effect is an ethical principle that attempts to discern the moral rightness of an action that will have both good and bad effects. Aquinas introduced the concept of double effect the second volume of his Summa Theologica, to justify killing in self-defence. Aquinas argued that it was morally permissible to act in self-defence, even if the assailant was killed, if the primary intention was to save oneself rather than to kill the attacker. [1]
For the doctrine to apply, a cause of action must have two potential effects: one which is good, another which is bad. In moral philosophy, the trolley problem is often used as a simplistic example to demonstrate this concept.
Suppose you are working near a train track. In the distance, you can see a train trolley speeding out-of-control towards five workers who cannot see or hear the train coming. You are standing next to a lever that connects to the tracks. If you pull the lever, the train will be diverted onto an alternative train track away from the five rail workers. However, on this alternate track, there is one rail worker who is equally unaware of the out-of-control train heading towards them. Do you pull the lever causing the death of one person to save five? [2]
In such a scenario, there is both a good and bad effect. The intended good effect is that the five workers are saved, however, there is an unintended bad effect - the single rail worker dies.
Double effect can be applied in various contexts, although the application of the doctrine is perhaps most significant in the context of medical ethics. One of the more classic examples arises in palliative care. Palliative care is end-of-life medical care that is provided to patients where the goal is to minimise the physical discomfort of a terminal illness. [3] Palliative care often includes the administration of opioid medication to relieve pain and suffering. Despite evidence to the contrary, there is a common misperception that the administration of opioids, at a level sufficient to control pain experienced by a palliative care patient, may hasten death. [4]
In this scenario, the primary intention is to relieve the patient’s physical pain (the good effect), however, the unintended consequence of the administration of the medication is the hastening of death (the bad effect). This proposition does not sit comfortably against orthodox criminal law principles. [5]
A Victorian Inquiry found that medical practitioners were hesitant to provide larger doses of pain medication for fear of legal ramifications. Doctors reported concerns of liability in civil action, criminal prosecution, or disciplinary consequences if the effect of opioid medication shortened the patient’s life. [6]
The hesitance of medical practitioners to provide substantial levels of pain management demonstrates the need for clarity surrounding the legal status of double effect in Australia. To date, there is no case law that directly tests the legal position of double effect in Australia.
Versions of the doctrine have been incorporated into the legislation of Queensland, South Australia, Western Australia, and the Australian Capital Territory. These provisions pertain specifically to palliative care and provide that a medical practitioner, subject to strict qualifying criteria, will not be criminally liable for administering medical treatment with the intention of relieving pain or distress in palliative treatment, even if the incidental effect of that treatment is the hastening of death. [7]
The doctrine of double effect presents a complex and nuanced framework for analysing end-of-life decisions in palliative care. While it offers potential legal protection for healthcare professionals, and provides a framework for ethical decision-making, its application remains fraught with uncertainty. Determining the acceptable level of risk in palliative care treatment remains a delicate ethical and legal question.
Moving forward, legislative reforms or clear court rulings are necessary to provide more certainty regarding the boundaries of the doctrine in Australia. Furthermore, continuous dialogue within the medical and legal communities is essential to ensure the doctrine's responsible and just use in shaping end-of-life care in Australia.
Ultimately, the doctrine of double effect serves as a valuable tool, but its limitations require careful consideration and ongoing refinement to ensure ethically sound and legally secure palliative care for all Australians.
[1] Alison McIntyre, ‘Doctrine of Double Effect’ in Edward N Zalta and Uri Nodelman (eds), The Stanford Encyclopedia of Philosophy (Winter 2023 Edition) https://plato.stanford.edu/archives/win2023/entries/double-effect/.
[2] Laura D’Olimpio, The Trolley Dilemma: Would You Kill One Person to Save Five? The Conversation (Web Page) <https://theconversation.com/the-trolley-dilemma-would-you-kill-one-person-to-save-five-57111>
[3] Ben White and Lindy Willmott, ‘Legal Protection for Providing Pain and Symptom Relief’ End of Life Law in Australia (Web Page) < https://end-of-life.qut.edu.au/pain-relief>
[4] Clare Gardiner et al, ‘Attitudes of Health Care Professionals to Opioid Prescribing in End-of-Life Care: A Qualitative Focus Group Study’ (2012) 44(2) Journal of Pain and Symptom Management 206, 207.
[5] Scott Davison, ‘The Doctrine of Double Effect and Potential Criminal Liability of Medical Practitioners in Australia’ (2021) 28 (2) Journal of Law and Medicine 503, 513.
[6] Legislative Council Legal and Social Issues Committee, Parliament of Victoria, Inquiry into End-of-Life Choices Final Report (2016) 111.
[7] Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17; Criminal Code (Qld) s 282A; Criminal Code (WA) s 259; Medical Treatment (Health Directions) Act 2006 (ACT) s 17.