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Neglected to death - is this the Howard Government's aged-care philosophy?

By Nicholas Tonti-Filippini - posted Friday, 14 May 2004


The Commonwealth Government would seem to have found an innovative solution to the shortage of places in nursing homes. In a Commonwealth-supported development by Melbourne's Austin Hospital, elderly people are being offered the, euphemistically titled, "Respecting Patients Choices" program.

This is not, as one might expect from the name, a program to provide a greater range of choices or resources to patients. It is a program whose clear intention is to encourage patients to opt for an advanced directive that would bring about death by neglect in the event that they become mentally disabled or terminally ill.

The program is being distributed to general practitioners and Aged Care facilities. It involves elderly or sick people appointing an enduring power of attorney for medical treatment and completing a "Statement of Choices".

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There are two choices that have already been completed on the form. The patient only needs to tick the boxes. The second is a refusal to be resuscitated. The first is worded:

If I reach a point where it is reasonably certain that I will not recover my ability to interact meaningfully with myself, my family, friends, and environment, or I am in the terminal stage of an illness:

I want to stop or withhold treatments that might be used to prolong my life (such treatment may include tube feedings, intravenous fluid, respirator/ventilator, or antibiotics). I only want those treatments which provide me with comfort and dignity as part of a palliative care plan.

Many patients in nursing homes would meet this description of being unable to "interact meaningfully with myself, my family, friends, and environment" as would many people cared for in their own homes. Dementia does that. Lack of adequate nutrition also causes mental disability in ageing people.

The prognosis "terminal stage of an illness" becomes a self-fulfilling prophecy if it means that the person is to be denied sustenance.

Simply expressed this directive means: "If I suffer from dementia or am terminally ill, starve me and let me die of thirst. And if I also get pneumonia, save the antibiotics, let me drown in my own sputum."

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There is no stipulation that the refusal is to prevent suffering. There is no limit on what might be refused so that ordinary, non-burdensome care is continued.

When the Medical Treatment Act was passed by the Victorian Parliament 14 years ago, the case that had prompted the need for the legislation was the predicament of Mr John McEwan, a young man who had been forced to endure mechanical ventilation against his wishes. At the time the Parliament was careful to exclude the reasonable provision of food and water from what might be refused. For the purposes of the Act, this was not to be considered medical treatment.

The logic at the time was that palliative care involved helping a person to live with the dying process, managing pain but maintaining their functions as best as possible, including sustaining them. Palliative care did not mean hastening their death. The expert witnesses to the Parliamentary enquiry pointed this out very forcefully. The point was that burdensome treatments could be refused not the ordinary care needed to sustain them.

The Parliament also included in the legislation the requirements that the legislation not be used to aid and abet suicide or to commit homicide. A reasonable belief that a person intends suicide remains a lawful reason to override their wishes. The purpose was not to facilitate suicide but to allow patients to refuse to be subjected to a treatment that is in some way problematic for them.

The Austin Hospital's version of palliative care apparently involves a plan that does not include sustaining the patient.

Now, with government support, that "palliative care" is to be extended to those living in aged-care facilities and at home, through their general practitioners.

The inclusion of food and fluids in the document would seem to be based on the judgment made in the BWV case last year. A Victorian Supreme Court judge authorised the withdrawing of food and water from BWV who had an advanced degenerative brain disorder.

The judge said that his judgment applied only to the circumstances of that case which were reportedly circumstances of great suffering. Much evidence had been given about the nature of BWV's suffering and the particular difficulties of sustaining her.

The Austin Hospital program would seem to have taken the judge's decision to include tube and intravenous feedings in general and apply it to a broad range of people classified by their disability or by their prognosis, not on the basis of the burdensome nature of the treatment offered.

Many people do fear being subject to unwanted, burdensome medical treatments. But it is another matter to advocate that they opt for being neglected to death. There is a basic level of care and support that is owed to people, if we are to remain a civilized society.

At base the Austin program involves a premise that respect for a human person and his or her protected status as a human being does not depend on who they are but on the meaningful nature of their interactions. This is a priority of existential dignity over essential dignity. Is this the Howard government's aged-care philosophy?

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Article edited by Robert Standish-White.
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About the Author

Dr. Nicholas Tonti-Filippini is an Independent Consultant Ethicist. He is a chairman of the Research Committee for Matercare International and a founding member of the Board of Directors for Matercare Australia

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