Guest Post by Ben White and Lindy Willmott, Australian Centre for Health Law Research

This was the question we considered in a recent JME article about the role of law in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. The short answer is ‘yes’. The longer answer is also ‘yes’ – although our results suggest that doctors may be acting in a way that complies with the law but not doing so because of the law.

Our article, which is part of a wider project, reports on survey results from 649 doctors from New South Wales and Victoria (Australia’s two most populous States). The doctors surveyed were from the seven specialties most likely to be making end-of-life decisions: emergency, geriatric, palliative, renal and respiratory medicine, medical oncology, and intensive care. We asked these doctors questions to determine their legal knowledge and we also asked them to respond to a scenario where following the law (by respecting an advance directive) conflicted with a more clinically oriented approach.

Compliance with the law was low with only 32% of doctors following the advance directive. Of interest was that doctors who knew the relevant law were more likely to comply with it and follow the advance directive than those doctors who did not know the law. Initially we thought that this could indicate that legal knowledge might lead to legal compliance. However, we then examined the reasons doctors gave for decision-making and also the factors they relied on to understand whether law was seen as important or not by doctors in their deliberations.

What was striking for us was that, despite the association between these two variables, knowledge of law did not seem to be affecting legal compliance. Looking first at the ‘compliers’ together, we separated them out into one group who knew the law and a second group who did not know the law. After doing this, we discovered that both groups were making their decision to follow the advance directive (and therefore the law) for the same reasons and relying on the same factors. In other words, the knowledgeable group was deciding on the same grounds as the group that did not know the law. Similarly, the two groups of ‘non-compliers’ (knowledgeable or not) decided not to follow the advance directive for the same reasons and relied on the same factors regardless of whether or not they knew the law.

So legally knowledgeable doctors are more likely to comply with the law – but law does not seem to be shaping decision-making in this area. This presented a puzzle to us. What else could be responsible for the association between doctors’ legal knowledge and compliance? More work is needed to fully understand what is happening here but we suggest that ethical considerations are a likely candidate. Both law and autonomy-focused ethics point to following the advance directive hence a decision motivated by this ethical orientation would also comply with the law. And medical ethics and law are also often taught together in an integrated way and so more legally-informed specialists are likely to have had more instruction in ethics too.

So where does this leave law? There are both principled and pragmatic responses to these findings that law may not be significant in medical decision-making at the end of life. One principled response is to make the case for compliance. The rule of law is fundamental to Western democracies and one of its requirements is that no-one is exempt from following the law, doctors included.  The compliance argument also notes that law is ultimately a reflection of community values and so it has an important role to play in medicine, particularly in areas such as end-of-life decision-making which invariably involve value-based judgments.  If a societal decision through the institution of Parliament (and sometimes the courts) has been made to establish particular legal frameworks for these decisions, then shouldn’t they be followed? These are wider debates of course but the onus rests on those making the case for non-compliance to justify why the law need not be followed, including not utilising processes such as judicial review for difficult cases where there are concerns about possible patient harm.

A more pragmatic response – and one that assumes it is desirable for society to exercise some control over medical decision-making – might be quite different. If we accept that society has an interest in how these decisions are made and that doctors are not following the law, what other levers are available to shape doctors’ decision-making?  This may point to utilising ethical codes of conduct, professional guidelines by medical colleges, societies or councils, or training and education programs to achieve desired outcomes. This approach need not mean abandoning law but rather recognises law’s practical limitations. Instead the proposal is to take a wider approach, in which law is part of how these decisions are regulated, but which engages other regulatory forces to shape decision-making.