Factsheet: Legal Protection for Administering Pain and Symptom Relief
Providing medication for pain and symptom relief (palliative medication) is important to ease suffering and improve the quality of life of a person with a life-limiting illness. However, uncertainty can arise for those giving palliative medication about whether it is lawful, particularly when a person is close to death. This factsheet explains how the law can protect health professionals who provide appropriate pain and symptom relief.
Clarifying the law
This factsheet explains:
- why providing appropriate pain and symptom relief is lawful
- what legal protection is available if a person dies after receiving pain and symptom relief
- that giving appropriate pain and symptom relief is not voluntary assisted dying or euthanasia
- that pain and symptom relief can be given to relieve pain and symptoms caused by a person refusing food and water
About palliative medication
Providing palliative medication (e.g. morphine, fentanyl, hydromorphone, midazolam and haloperidol) is a key part of good palliative care. It helps relieve and manage the pain and symptoms of a person with a life-limiting illness. Palliative medication can be given in hospital, in residential aged care or at home.
There are varying clinical views about whether or not some palliative medication may hasten death. However, the law recognises that medication used for pain and symptom relief is lawful in Australia if the intention of the person giving the medication is to relieve the person’s pain and symptoms and not to cause death.
Legal protection when a person dies
In some cases it is possible for palliative medication to have the ‘double effect’ of relieving pain and symptoms as well as hastening a person’s death.
In those situations the doctrine of double effect (‘double effect’) can provide legal protection to the person who prescribed or administered the medication so they are not legally liable for the death.
What is double effect?
Double effect recognises that giving medication to relieve a person's pain and symptoms is lawful so long as the health professional's intention is to relieve the person's pain and not hasten death.
The medication should be given in accordance with good medical practice e.g. it should be appropriately titrated, and health professionals should apply reasonable care and skill to ensure that the right medication and dose is given.
Double effect is part of Australian law. In Queensland, Western Australia, South Australia and the Australian Capital Territory there is also legislation which recognises double effect.
Where will double effect apply?
Double effect can apply when the person's death occurs in a hospital, residential aged care facility or other health service. It can also apply when the person dies at home.
Who is protected?
The person giving the pain or symptom relief does not need to be a doctor for double effect to apply. Other health professionals and care givers, including nurses, aged care workers, paid or unpaid carers, or family members may also be protected by double effect so long as there is medical authorisation or supervision of the medication plan by a doctor or nurse practitioner, and death was not intended.
It is also good practice (and a requirement of the law in South Australia) for consent to be sought from the person or, if they cannot consent, their substitute decision-maker, before providing palliative medication.
Does the person need to be close to death?
Double effect is likely to apply only when the person is near death. In South Australia, the legal protection will apply only if the person is in the terminal phase of a terminal illness.
Appropriate pain and symptom relief is not voluntary assisted dying or euthanasia
A common misconception about palliative medication is that it is the same as voluntary assisted dying or euthanasia if it causes the person’s death e.g. ‘If I give my patient medication and she dies I will have euthanased her’. Sometimes these concerns have resulted in people not getting enough pain and symptom relief, which can cause suffering and distress for the person as well as their family.
Appropriate palliative medication which is intended to relieve pain and symptoms is not voluntary assisted dying or euthanasia. The law views this as appropriate palliative care and, if the palliative medication also has the effect of hastening the person’s death, protects those providing the medication through double effect.
Pain relief for a person who refuses food and water
Sometimes, a person who is close to death may refuse food and water. This is legal if the person has capacity to make this decision. Everyone has the legal right to refuse food and water, even if this results in their death.
When a person decides to stop eating and drinking, palliative medication can be given to reduce any pain or symptoms they experience from this.
- Giving appropriate palliative medication for pain and symptom relief is lawful in Australia.
- The doctrine of double effect provides legal protection to health professionals and others if a person dies after receiving palliative medication. It applies if the person who prescribed or administered medication intended to relieve pain and symptoms and not hasten death.
- Double effect will only apply if the medication is administered by a doctor, or by someone else (for example a nurse, aged care worker, carer, family member) under a doctor or nurse practitioner’s authorisation or supervision; and the person was already close to death.
- Palliative medication given with the intention of relieving pain and symptoms is not voluntary assisted dying or euthanasia.
- A person with decision-making capacity has the right to refuse food and drink, even if it results in death. Medication to relieve the person’s pain and symptoms can be given in these situations.
If you have concerns about providing palliative medication, ask questions!
Support is available.
- If you work in aged care, discuss your concerns with your manager or the practice nurse.
- If you are a GP, you can seek advice from your medical insurer.
People from diverse social and cultural backgrounds may communicate pain in different ways (including non-verbally). People may also have different views about pain management and using medication such as opioids. It is important to properly inform the person you care for about pain management options and make sure they understand the options.
Learn more about delivering palliative care to: