The legal aspects of palliative care

Professor John Keown, the Rose F. Kennedy Professor of Christian Ethics at the Kennedy Institute of Ethics, Georgetown University, Washington, D.C., spoke on May 16th in a House of Lords committee room about the legal aspects of palliative care, to an audience mostly composed of medical personnel. The talk was arranged by the Anscombe Bioethics Centre and hosted by Baroness Finlay, the eminent expert on such care, in which Britain leads the world.

Professor Keown spoke of unmet needs for care and pain relief, and argued that the ethical duty to provide it was clear under any philosophical system, whether Utilitarianism, Principlism (the principles being autonomy, non-maleficence, beneficence, and justice) or Natural Law.

He cited the 2010 Montreal Declaration on inadequate pain management, and various agreements outlawing torture, in claiming that there is an international human right to preventative, curative and palliative health care.

He said that under British civil law, and that of the Commonwealth and USA, when a patient was unnecessarily left in pain, in theory an action for negligence would lie, since a breach of a duty of care causing loss or harm could be proved, although he knew of no actual case being brought. This could be against a doctor, or vicariously, and possibly directly, against a hospital or care provider.

In criminal law, it was clearly established by Mr. Justice Devlin’s clear exposition in the Bodkin Adams case 1957 that a doctor may legitimately give all necessary pain relief even if, as an unintended but unavoidable side effect, it shortens life. (Oncologists now believe that properly administered relief does not in fact usually do that.) In the case of Dr. Nigel Cox, convicted of attempted murder of a patient in 1992, the judge went further and stated there was not just a permission but a duty to alleviate pain.

For those with a duty of care to children and young people, to the mentally incompetent and even to animals, wilful neglect is a statutory criminal offence. Professor Keown suggested that there was a need for these provisions to be extended so that a person who ill treats or wilfully neglects any person in his care commits a statutory offence.

It was generally agreed that universal access to the best palliative care, not only for physical but for mental and spiritual needs, in all kinds of suffering, is the best answer to requests for any form of euthanasia, and should be available as soon as needed, not just when death is imminent.