Guest Post: Xavier Symons
Paper: Does the doctrine of double effect apply to the prescription of barbiturates? Syme vs the Medical Board of Australia

My recently published article analyses the controversial Victorian Civil and Administrative Tribunal (VCAT) hearing Syme vs The Medical Board of Australia. In that hearing, Dr Rodney Syme, an Australian urologist and euthanasia advocate, was defending his practice of prescribing Nembutal to terminally ill patients. The Medical Board of Australia (MBA) had found that Syme’s behavior posed “a serious risk to persons” and placed a condition on Syme’s license that prevented him from engaging in medical care “that has the primary purpose of ending a person’s life”. Syme appealed the MBA decision, testifying to VCAT that he prescribed the drug with the intention of relieving their existential suffering and not to assist in suicide. Essentially, he argued that the Doctrine of Double Effect (DDE) could be applied to justify his actions.

The aim of my article is to debunk Syme’s claim. I argue that a close scrutiny of his actions reveals that, at the very least, he intended to give patients the option of suicide. Insofar as this is the case, DDE cannot be invoked as a justification.

DDE can be roughly summarised as follows:

The doctrine of double effect states that, where certain criteria are met, a person acts ethically when acting to bring about a good or morally neutral effect, even if her action also has certain foreseen, though not intended or desired, bad effects.

Traditional definitions of DDE include the following four criteria:

1. The act itself must be good or at least morally neutral.
2. The agent must not intend the bad effect.
3. The bad effect must not be used as a means to achieve the good effect.
4. The ‘goodness’ of the good effect must outweigh the ‘badness’ of the bad effect, and there must be no other reasonable way to attain the good effect.

I argue that Syme’s actions fail to meet criteria 2 and 3. I argue that Syme’s proximate intent when prescribing Nembutal was to to give patients the option of suicide. He was, in this sense, intending a bad effect. He furthermore used what on a traditional definition of DDE would be considered a ’bad’ means—the prescription of Nembutal—to achieve a ’good’ end—the relief of suffering. If I’m correct, Syme’s DDE justification is untenable; his actions are sufficiently similar to other cases of assistance in dying so as to warrant prohibition. (Note that euthanasia and assisted suicide (E-AS) are currently illegal in all Australian States or Territories, though several jurisdictions are considering E-AS legislation).

There are, to my mind, two main reasons why the ruling is significant. The first is that it challenges the Australian medical community’s understanding of what constitutes “ethically acceptable practice” in end-of-life care. VCAT has given conditional approval the prescription of Nembutal in cases where a terminally ill patient is suffering existentially. This will presumably influence future decisions made by the MBA and the Australian Health Practitioner Regulation Agency (AHPRA), and it could conceivably influence guidelines provided by organisations such as a Palliative Care Australia and Palliative Care Victoria. The second reason is this: the logic behind the ruling could be applied in circumstances other than end-of-life care. It is conceivable that, using VCAT’s logic, a practitioner could justify the prescription of Nembutal to any patient suffering existentially, regardless of the case of that suffering. All that matters is the intention of the doctor; provided the stated intention is to “provide control”, then the prescription of Nembutal is permissible. If I’m right, we could see the doctrine of double effect invoked in increasingly unusual circumstances to justify the prescription of Nembutal. That is, unless the ethicists, clinicians and the judiciary recognise the flaws in VCAT’s Syme ruling.