Improving law at the end of life: a legacy of Schiavo’s case?

There are competing considerations in having a doctor play such a role. On one hand, the safeguard of good medical practice may be warranted to protect adults with impaired capacity from relatives who would withhold or withdraw life-sustaining medical treatment in inappropriate circumstances.

On the other hand, the legislation has deliberately moved away from having a doctor make these decisions. The previous law would have been to apply the best interests test discussed above, which has been criticised for being too heavily driven by medical considerations rather than by what the adult would have wanted. One reason for the legislation changing the law to allow a family member to make these decisions was to secure an outcome more in accordance with an adult’s wishes.

Another criticism of the veto might be that it gives significant power to a single doctor to assess what he or she thinks is good medical practice. It could also be argued that there are already sufficient safeguards to deal with potential abuse by relatives. For example, under Queensland’s legislation an individual (such as a doctor, nurse or relative) who is concerned about decisions being made for an adult can bring the matter before a tribunal to review the decision independently.

Finding solutions to problems such as these is difficult. There is some justification for allowing doctors to veto decisions by relatives, but there are also compelling reasons why these matters should generally be left to families. Inevitably, choices as to what the law should be must be made and it is unlikely everyone in the community will agree with those choices. What is critical, however, is that these options must be considered and fully discussed by the people who are to be governed by whatever law is chosen.

The case of Terri Schiavo is a tragic one but perhaps there can at least be one positive outcome. Hopefully the case has awakened an interest and commitment from the wider community to think about these matters and participate in discussions of how this area of law should be regulated.