Enabling the angels of death?

Draft voluntary euthanasia legislation, called the Voluntary Assisted Dying Bill 2017 (NSW) has been released for public comment.

Drafted by a cross-Parliamentary working group, it may be the closest contender yet for the legalisation of assistance-in-dying for people living in NSW who are suffering from a terminal disease.

A short summary of the Bill appears further below.

Australians have not had lawful access to assisted dying since 1997, when the Euthanasia Laws Act 1997 (Cth) [introduced as a private member’s Bill by Kevin Andrews MP, with the assistance of the Howard government] overturned the Northern Territory’s brief, 8 month experiment with euthanasia – the Rights of the Terminally Ill Act 1995.

Relying on the plenary legislative power of the Commonwealth to make laws for the Territories, the Euthanasia Laws Act withdrew from the NT and ACT the power to make laws with respect to assisted dying.  The Act was a victory for conservative political forces in Australia.

Since that time, despite polls suggesting that most Australians favour legalising a right for those suffering a terminal illness to die with medical assistance, all the voluntary euthanasia Bills introduced into State Parliaments have failed.

There are various explanations for this.

The legalisation of assisted dying may suffer from the reality that although a majority of the population support it, those who oppose it are deeply committed opponents for whom the issue is a vote-changer.  This makes the passage of laws that might have majority support a net vote loser.

Another explanation is that Australians, or at least their elected representatives, are far less progressive than right-to-die advocates would like to believe.

Will the Voluntary Assisted Dying Bill 2017 give legal cover to those “angels of death” who up to now have provided their assistance informally, in the “euthanasia underground”?

The Voluntary Assisted Dying Bill 2017 (NSW)

The Bill would authorise a 25 year-old, ordinarily present in NSW, to request their primary medical practitioner for assistance to end their life in circumstances where that person (the patient) has been informed by their primary medical practitioner that the patient is suffering from a terminal illness, and where the patient is experiencing severe pain, suffering or physical incapacity that is unacceptable to the patient (cl 4).

The request for assistance must be in writing (see below), and the patient may rescind their request at any time (cl 5).

Assistance may take the form of prescribing and preparing a (lethal) substance for self-administration by the patient, or may involve the direct administration of the substance to the patient when the patient is physically incapable of self-administering it (cl 3).

A medical practitioner may only provide assistance with substances identified in the Regulations as “authorised substances”, presumably because of their reliable euthanatic properties (cl 10).

The patient’s primary medical practitioner is not obliged to provide assistance (cl 6), and the patient may, in writing or by means of an audio-visual record, nominate a third party, who must be at least 18 years old, to provide the assistance (cl 7).

A number of requirements must be met before the assistance can be provided.

The patient must be examined by their primary medical practitioner, and by an independent, secondary medical practitioner who must be registered “in a specialty of the medical profession that is relevant to the patient’s diagnosis or treatment of the terminal illness from which the patient is suffering” (cl 14(3)(a)).  The specialist must not be “closely associated” with the primary medical practitioner, ie the former must not be a close relative, employee, or member of the same medical practice as the latter (cl 14(3)(b)).  In addition, the specialist must not be a close relative of the patient (cl 14(3)(c)).

Conflict of interest provisions also apply. A person (that is, any person) must not promise any financial benefit to the primary medical practitioner, and the primary medical practitioner must not accept any financial benefit in return for providing assistance to the patient, other than reasonable payment for medical services (cl 12).

It seems difficult for the primary medical practitioner to be a close relative of the patient, or the former would fail the conflict of interest provisions by virtue of receiving a financial benefit through inheritance (cl 11(a)).

The patient’s request for assistance must be confirmed by the patient after the primary medical practitioner has examined the patient and indicated the likely course of the patient’s illness, and treatment options, including palliative care, counselling and psychiatric support (cl 15).

Next, the patient must be examined by an independent psychiatrist or psychologist who must provide a written report to the primary medical practitioner and specialist which confirms that the patient is of sound mind and has made a free and voluntary decision (cl 16).

The primary medical practitioner must not provide assistance unless they have examined the patient and formed the medical opinion that the patient is suffering from a “terminal illness” (ie an illness that in reasonable medical judgment will cause death within 12 months) that is causing “severe pain, suffering or physical incapacity to an extent unacceptable to the patient” (cl 17).  The primary medical practitioner must also believe that there is no cure, and that the only treatment reasonably available to the patient is the relief of pain and suffering (ie palliative care).  The primary medical practitioner must also believe that the patient has considered the impact of the assisted death on the patient’s spouse or de-facto partner or family.  The specialist must also confirm these assessments in a written statement provided to the primary medical practitioner (cl 17).

A patient who requests assistance in dying must also fill out a request certificate.  The Bill envisages an initial request made by the patient, followed by a period of not less than 7 days, before the patient signs the request certificate (c. 18).

If the patient is physically unable to sign the certificate, the certificate may take the form of an audio-visual record of the patient reading the patient’s declaration in the certificate; however, the primary medical practitioner must be present during the signing and must also sign a declaration on the request certificate.  The specialist must also sign the certificate (cl 18).

A cooling off period applies after the patient requests assistance: this disentitles the primary medical practitioner from providing assistance for at least 48 hours after the request certificate was completed (cl 8).

The Bill also requires an interpreter to become involved if the patient is unable to communicate fluently, in any language, with the two medical practitioners and the psychiatrist or psychologist (cl 19).

The Bill provides a mechanism for close relatives to apply to the Supreme Court and for the Court to invalidate the request certificate if statutory requirements are not met.  Grounds for invalidating the certificate include a finding that the patient was not suffering from a terminal illness, or was not of sound mind at the time they made the initial request for assistance and signed the request certificate.  The Court may also inquire into whether or not the patient’s decision was made freely and voluntarily after due consideration, and whether or not the patient’s capacity was adversely affected by his or her state of mind (cl 21).

The Supreme Court’s jurisdiction, which includes its parens patriae jurisdiction, is not affected by the Bill (cl 23).

The Bill gives health care providers and any other person a right not to participate in providing the patient with assistance to end their life (cl 24).  Unlike Victoria’s abortion legislation, a medical practitioner or other person with a conscientious objection to assisted dying is not obliged to refer a patient to a medical practitioner whom they know has no such scruples, although they are required to transfer a copy of the patient’s medical records to a new medical practitioner (cl 24).

A “protected person” is not criminally or civilly liable (this includes liability in any disciplinary proceedings) for actions taken in good faith to participate in the provision of assistance to die in accordance with the Act.  This includes administering a lethal substance, selling or preparing such a substance, and being present when the assistance is given (cl 25).  A protected person means the primary medical practitioner or specialist, the psychiatrist or independent psychologist, a health care provider or nominee (cl 25).

The Bill could further confirm this protection by extending it to the person who fills a prescription or prepares or compounds the substance that is intended to be used to assist the patient to die.  The person who provides the substance may have no way of knowing whether the requirements of the Act have, in fact, been fulfilled.  The Bill is not clear about where the drugs used in the assisted dying procedure will be sourced.

Clause 25 does not refer specifically to administration or preparation of an “authorised” substance, although elsewhere the Bill requires only authorised substances to be used (cl 10).  Immunity does not extend to dealings with “unused substance” except for the purposes of destruction (cl 25(5)).

A well-worn debate?

Twenty years ago, moral opposition to the Northern Territory’s euthanasia legislation was spear-headed by the Catholic and Anglican churches, whose record on human rights has since been subjected to scrutiny by the  Royal Commission into Institutional Responses to Child Sexual Abuse.

Despite this, the Bill is unlikely to escape the usual criticisms that are made of assisted dying legislation.  These include the criticism that vulnerable patients will simply engage in doctor shopping until they find medical practitioners willing to give them what they want.

Opponents argue that it would be better to improve the funding and technical capability of palliative care services, rather than authorising cheap alternatives to such care.

Advocates for assisted dying point out that if palliative care could successfully reduce suffering to levels acceptable to patients, without sedating them into permanent unconsciousness, there would be no continuing drive for euthanasia.

Opponents argue that legislation to deliver a right to die with assistance, while simultaneously protecting vulnerable people from potential abuse, is difficult if not impossible to achieve.

Opponents also worry about the slippery slope, an idea summarised by Robert Manne at the height of debate about the Northern Territory’s legislation:

For anyone who understands social processes the expansion of the circle of those who can be killed will come as no surprise. For once we agree to the principle of doctors performing voluntary euthanasia by what effort of societal will, on what rock of ethical principle, can we resist its extension to ever new categories of sufferers?  There is no such will: no such fixed and reliable principle…The slippery slope…involves a subtle transformation of ethical sensibility.  Over time we become blind to how we once thought [Robert Manne, “Life and death on the slippery slope” Quadrant, Vol 39, issue 7-8, July/Aug 1995, pp 2-3].

The debate goes round and round.

 

The fate of the Voluntary Assisted Dying Bill remains hard to predict.  Ultimately, however, the decision will lie with legislators – human beings voting on the basis of their conscience and sense of what is right and decent.  It is not a poll.

 

Are you interested in studying health law?  Sydney Law School’s Graduate Diploma in Health Law, and Master of Health Law are open to both lawyers and non-lawyers.

Professor Cameron Stewart teaches “Death Law” within the Master of Health Law program.

Professor Roger Magnusson wrote Angels of Death: Exploring the Euthanasia Underground, published by Melbourne University Press in 2002.

Promoting health goals in a self-regulating industry

Earlier this year I published an article on self-regulation of food marketing to children in Australia. I focused on two voluntary codes developed by the Australian food industry to respond to concerns about children’s exposure to junk food advertising, and how it might affect their eating habits. My article pointed out the many loopholes in food industry self-regulation, mirroring other concerns expressed about regulation of junk food marketing to children, and described how the Australian regulatory regime might be strengthened.

Jane Komsky recently published a blog post on my paper on The Regulatory Review, the blog of the Penn Program on Regulation. We republish Jane’s post below, with the kind permission of The Review.

Parliament House in Canberra, Australia

Tony the Tiger. Ronald McDonald. Cap’n Crunch. What do these three characters have in common?

They are all memorable characters that children love—which is why the Australian food industry does not hesitate to use them to promote foods widely thought to be unhealthy.

According to Professor Belinda Reeve of Sydney Law School, food marketing in Australia has contributed significantly to the country’s increased rate of childhood obesity. Reeve argues that childhood obesity often leads to low self-esteem, bullying, and major health problems, such as diabetes and heart disease. Thus, limiting children’s exposure to unhealthy food marketing could help lower the rate and risk of the condition, says Reeve.

In response to this growing concern about the effects of unhealthy food marketing to children, the World Health Organization (WHO) encourages countries to adopt effective regulatory measures. While the WHO offers guidance for the design and implementation of regulatory measures, the Australian regulatory regime prefers to allow the food industry to regulate itself. For example, the food industry developed “voluntary pledges” where companies agreed to advertise only healthier products to children, restrict their use of product placement, and report annually on their compliance.

Although self-regulation of food marketing can be effective, Reeve argues that the self-regulation route does not typically work in industries that have economic motives not to comply. She posits that the food industry in Australia continues to promote its own private interests at the expense of public health goals. Ideally, according to Reeve, the industry should be put on “notice” that unless the industry players actively advance public health goals, the government regulators will intervene with more oversight and regulations over the industry, a so-called responsive regulatory approach.

The Australian food industry, through its voluntary self-regulation program, adopted only very narrow regulations, which focus strictly on food advertisements specifically directed at young children, says Reeve. Reeve explains that food companies avoid regulation by creating advertisements “officially” targeting adults and families, instead of young children, while simultaneously using animated characters that children find appealing. Reeve urges a “significant expansion” to the existing rules to close off these loopholes.

In addition to permitting child-friendly advertising, the current Australian advertising system fails to limit unhealthy food advertisements, Reeve argues. The WHO explains that any exposure to unhealthy food marketing influences children, who, in turn, influence their parents to buy these meals for consumption, even when the advertisement is officially targeted for other audiences. The WHO suggests the regulation will be more effective if the main goal aims to reduce children’s overall exposure to unhealthy food marketing, not just reducing the marketing that targets children.

Reeve explains that to enforce the Australian food marketing industry’s voluntary self-regulation program effectively there must be better oversight over the industry as a whole. Reeve first suggests introducing an administrative committee with representatives from government agencies, as well as other external and internal stakeholders to balance private and public interests. This committee would be responsible for collecting and analyzing data about the nutritional quality of products marketed to children and the industry’s level of compliance. The committee would then track improvement from companies’ mandatory reporting requirements.

Reeve writes that this committee would implement an enforcement mechanism—such as sanctions—if companies were to breach their responsibilities. Sanctions provide a strong motivation for compliance through potential reputational and financial consequences for companies. Similarly, the committee would encourage compliance through a wide range of incentives.

If the committee finds that the self-regulation program does not achieve high levels of compliance, Reeve suggests moving to a co-regulatory system. A co-regulatory system would allow the government to get more involved in regulation by creating legislative infrastructure requiring all food industry companies to follow regulations and preapproved goals. The food marketing industry would still set its own standards, but the responsibility for monitoring and enforcing these standards would be transferred to a government agency, thereby putting greater pressure on companies to comply.

If the industry fails to make significant progress under the co-regulatory system, Reeve suggests that government adopt new statutory measures altogether. Reeve promotes a prohibition on unhealthy food marketing on television until late at night, restricting marketing on media platforms with large child audiences, and banning unhealthy food marketing in and around sites where large groups of children gather. Reeve even suggests prohibiting the use of animated characters and celebrities to promote unhealthy foods.

Once the government implements these statutory measures, a government agency would monitor and enforce the rules. In some cases, the government could even prosecute companies that “engaged in serious forms of noncompliance.” The agency would regularly analyze and write reports about the progress of reducing children’s exposure to unhealthy food marketing.

Reeve anticipates that this type of government intervention would be viewed as intrusive and would face industry resistance. The industry’s response might suggest that this type of intervention is not practical. But, Reeve believes the threat of this intrusive government intervention will motivate the industry to comply with the softer regulations that should be put in place first. Such a threat will also provide the government with greater bargaining power for implementing more effective voluntary and co-regulatory policies.

According to Reeve, the Australian food marketing industry has a real opportunity to upend the rate of childhood obesity, but only if the industry puts the public’s health interests before its own private interests.

#FitSpo? No thanks.

Fitspo

Now that we’re in May, it’s likely that everyone’s New Year’s resolutions to eat better and drink less have fallen by the wayside. And as we move into winter (in the Southern hemisphere at least), it’s getting harder to convince yourself to get out from under the blankets and go for an early morning run.

It’s harder still to look at photos of thin but incredibly toned people demonstrating twisty Yoga poses, which appear to have taken over Instagram, Tumblr and other social media sites, as well as marketing for supplements and sports gear.

These kinds of pictures form part of the Fitspo (“Fitspiration”) movement, which focuses on images of athletic-looking woman (rather than men, for the most part) and adopts mantras such as “fit not thin” or “strong is the new skinny.” Fitspo represents a backlash against the obesity epidemic on the one hand, and “thinspiration” or pro-anorexia sites on the other.

Fitspo might be seen as a positive, embracing the idea of strong, dynamic women who aren’t afraid of lifting weights or building muscle.

But I think we should say no to FitSpo, and more specifically, to images of tiny, toned women looking graceful yet sporty in carefully chosen athleisure wear.

Why? Well, where to begin.

There’s nothing wrong with promoting or encouraging physical activity, and if you want to post on Facebook that you just ran 10km, well, you won’t see any complaints here. But FitSpo often conflates vanity and self-promotion with fitness, and its body positive message can hide obsessive dieting or exercise routines that are just as detrimental to women’s health as excessive weight gain or eating disorders.

What’s more, Fitspo continues the traditional trend of close scrutiny of women’s bodies (at the expense of prizing women’s intellects or personalities), as well as encouraging competition between women as to who can look the most toned (but not too bulky, remember).

People who exercise a lot don’t necessarily look like FitSpo models. I’m a long-distance runner and general all-round exercise junkie, but I don’t have the legs of Meghan Markle (I don’t have Prince Harry either for that matter). I have stretch marks, a scar where I burnt myself with the iron accidentally (long story), and what could best be described as wobbly bits.

Even professional athletes don’t necessarily meet the Fitspo ideal. One of the best things about looking at pictures of female athletes is that it shows that women come in all shapes and sizes. But keep in mind that Serena Williams, one of the world’s most successful athletes, has faced criticism over her body shape.

13th IAAF World Athletics Championships Daegu 2011 - Day Three
Valerie Adams, New Zealand’s world champion shot putter. Image from olympic.org.nz

For the most part, FitSpo normalizes a particular brand of (thin, white, middle-class) beauty. It suggests that we can only do exercise if we can look svelte in expensive sports gear, while sucking down green goddess juices in perfect make-up.

Sport and exercise aren’t just for the young and beautiful. Everybody needs to be moving more, and they should feel comfortable and happy when doing it, rather than self-conscious about how they look or whether they’re wearing the right thing. There’s a book I like called Just Ride. Its central argument is that people shouldn’t worry about having flashy Lycra jerseys, clip-on shoes or grinding out endless miles– they should just get on their bike (in normal clothes) and ride. The same applies for other forms of exercise too. But I worry that body beautiful ideals too often keep people out of the gym or off the walking track.

It doesn’t have to be this way. Check out this ad, part of the New Zealand Government’s “Push Play” campaign to encourage physical activity. Another ad in this series featured a Polynesian man taking his pig for a walk – not exactly the Insta-perfect image we might see on Fitspo sites, but one we should be encouraging instead.

So how about making a May resolution to put on whatever clothes you feel comfortable in, and going for a walk with friends, taking up salsa dancing, playing a game of footy, or doing whatever else you like to get moving. And feel free to post a picture on social media, even if you do look #lessthanperfect.

Dr David Nabarro, WHO D-G candidate, on a sugar tax

The World Health Organisation may be in for interesting times if Dr David Nabarro becomes the next Director-General.

Only three candidates are now in the contest.  Two of them were Commissioners of the WHO Commission on Ending Childhood Obesity: Dr Nabarro, from the UK, and Dr Sania Nishtar, from Pakistan (who was Co-Chair of the Commission).

The headline of the Commission’s final report was really the recommendation to governments to implement a tax on sugar-sweetened beverages.

However, according to Fairfax Press, Dr Nabarro has “stepped into the ring to slap down calls for sugar taxes, saying there is not enough evidence on what drives over-eating to justify blunt levies on the ingredient”.

However, Dr Nabarro’s comments raise interesting questions about the direction WHO could take under his leadership.  What role for fiscal interventions to address poor nutrition and diet-related diseases?

National Party  leader Barnaby Joyce has described a sugar tax as “bonkers mad”. (According to Mr Joyce, “bonkers mad” is also a condition shared by renewable energy targets).

According to Fairfax Press, Dr Nabarro cautioned against “blunt regulations” like a sugar tax and noted that the state should only intervene where the intervention has a proven effect in changing behavior.

Well that would depend on the rate of the tax. A growing body of research – examples here, and here – argues that dietary taxes could both raise revenue and improve health outcomes. In ways that subsidised gym memberships, education, personal responsibility and good intentions are unlikely to.

Mexico’s tax on sugary drinks has resulted in an even greater reduction in consumption of sugary drinks – a major source of added sugars in that country – in the second year of operation than in the first year: a 5.5% reduction in purchases of sugary drinks in 2014, rising to nearly 10% in 2015.

Dr Nabarro also distinguished between contagious epidemics, which engage the “pure health sector” and non-communicable diseases, which require inter-sectoral responses across a number of sectors.

The suggestion is that special caution is warranted with non-communicable diseases.

I’m not sure I take the point. Outside of sub-Saharan Africa, the world overwhelmingly dies from non-communicable diseases.

People are not less dead, and prior to death they are not less disabled because the condition crept up on them slowly, due to lifestyle factors that have multiple determinants.

So can we put this down to WHO politics, or is Dr Nabarro foreshadowing a softer line on “big food” and “big soda” if he is elected Director-General?

These are questions he may be asked when he is in Australia later this month.

By the way, in a recent report the Australian Institute of Health and Welfare has estimated that 7% of the burden of disease in Australia is attributable to overweight and obesity (63% of which is fatal burden). Overweight and obesity are responsible for 53% of Australia’s diabetes burden, and 45% of the burden of osteoarthritis.

“Party like it’s payday!” urges Diageo Australia (before your welfare cheque runs out?)

It looks like Diageo Australia is at it again.

No, this time they’re not advertising Bundy Rum to a 3 year old.

Instead, they’re urging Western Australians to “Party like it’s payday” – hoisting ads for Captain Morgan Original Spiced Gold Rum around the Perth suburbs, including right outside a Centrelink office.

Whatever were they thinking?  Party like it’s payday – before your welfare cheque runs out?

Here’s Hannah Pierce, Research Officer at the McCusker Centre for Action on Alcohol and Youth, Executive Officer of the Alcohol Advertising Review Board, and a Master of Health Law candidate at Sydney Law School.

Hannah’s blogpost is re-published with permission from Drink Tank.

Just when you thought the marketing techniques of alcohol companies couldn’t shock you any further, along comes an ad campaign that takes things to a whole new low.

Last month the Alcohol Advertising Review Board received a complaint about outdoor ads for Captain Morgan Original Spiced Gold Rum with the very prominent message, “Party like it’s payday”.

Understandably, the complainant was concerned about the tagline linking drinking and payday:

It makes me think of the people who spend their pay on alcohol and then don’t have much money left over for essentials like food and rent etc. There has been quite a lot of talk in the media of cashless welfare cards which can’t be used on alcohol or gambling so people use their money on food, clothing and bills. This is obviously a big problem in Australia, so it seems outrageous to have a very public alcohol advertising campaign that is actually promoting partying and buying alcohol around the payday theme.”

When notified of the complaint, Diageo Australia, the owner of Captain Morgan rum, declined to participate in the AARB process and confirmed their support for the self-regulatory system.

Given the sensitive issues the ad could raise, you’d think they’d be pretty careful where they put the ad, right?

Wrong.

The AARB received a second complaint about the ad, this time placed directly outside a Centrelink office on a Telstra payphone. The complainant said:

The sign says “Party like its Payday” conveniently out the front of Centrelink where people go to get their fortnightly welfare payment. This is highly insensitive considering Australia’s alcohol issues are highly prevalent amount those on welfare benefits […]”

Considering the substantial concerns about alcohol-related harms in Australia, including alcohol use among young people and vulnerable populations who are likely to visit Centrelink, the placement of this ad is blatantly inappropriate.

These complaints were reviewed and upheld by the AARB Panel. The Panel believed the tagline was irresponsible and encouraged excessive drinking, and that the ad attempts to establish that drinking Captain Morgan should take precedence over other activities, such as paying for accommodation and food.

The Alcohol Advertising Guidelines of the Outdoor Media Association (OMA), the peak national industry body that represents most of Australia’s outdoor media companies, note that its members “only accept copy for alcohol advertising that has been approved for display through the Alcohol Advertising Pre-vetting System”.

Evidently, the content of the Captain Morgan ad was actually approved by the self-regulatory system, highlighting serious concerns about its ability to ensure alcohol advertising is socially responsible.

In addition, the OMA has only one guideline relating to the placement of alcohol ads – that they cannot be placed within 150 metres of a school gate. Everywhere else is open slather.

So it appears neither the content of the “Party like it’s payday” rum ad nor its placement outside a Centrelink breach any codes in the self-regulatory system.

Despite this, the AARB has written to the OMA and Advertising Standards Bureau to seek their position on whether the content and placement of the Captain Morgan ad is consistent with the OMA’s commitment to “the responsible advertising of alcoholic beverages”.

The AARB has also written to Telstra to highlight our concerns about outdoor alcohol advertising and ask that they consider phasing out alcohol advertising on Telstra property, including pay phones.

The AARB was developed by the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA in response to concerns about the effectiveness of alcohol advertising self-regulation in Australia.

This Captain Morgan ad is yet another example that highlights the need for this alternative complaint review system to support action on alcohol ads that the self-regulatory system deems acceptable.

If you see an alcohol ad that concerns you, we encourage you to submit a complaint to the AARB. Every complaint the AARB receives is further evidence of the need for strong, independent, legislated controls on alcohol advertising in Australia. Visit www.alcoholadreview.com.au and follow @AlcoholAdReview on Twitter to find out more.

Republished with permission from Drinktank.

Self-regulation of junk food advertising to kids doesn’t work. Here’s why.

junk-food-ads-kids

Recently, Cancer Council NSW published a study finding that food industry self-regulation in Australia has not been effective in reducing children’s exposure to unhealthy food marketing. Australian children still see, on average, three advertisements for unhealthy foods and beverages during each hour of prime time television they watch. This figure remains unchanged despite the Australian food industry introducing two voluntary codes on food marketing to children in 2009.

My research, published recently in the Monash University Law Review, explains why.

I undertook an in-depth analysis of the terms and conditions of the two food industry codes on marketing to children. I also analyzed the processes of administration, monitoring, enforcement and review established by the self-regulatory scheme.

My analysis drew on the code documents themselves, monitoring reports from the food industry, existing independent research, and a sample of advertising complaint determinations from the Advertising Standards Board. I also considered the revisions made to the codes in 2014 (following an independent review of the scheme), and asked whether these revisions make the codes more likely to protect children from exposure to unhealthy food marketing.

My key finding is that the substantive terms and conditions of the codes contain a series of loopholes which leave food companies with a variety of techniques they can use to market unhealthy products to children. These loopholes include:

  • A weak definition of “media directed primarily to children” which excludes general audience programs that are popular with children
  • A weak definition of “advertising directed to children,” made weaker still by the Advertising Standards Board’s interpretive approach; and
  • The exclusion from the codes of key promotional techniques such as company-owned characters (e.g., Ronald McDonald), brand advertising, product line advertising, and product packaging and labelling.

The processes used to administer and enforce the codes also contain a series of flaws, undermining the codes’ efficacy, transparency and accountability. These include:

  • A lack of consultation with, or participation by, external stakeholders in the development of the codes, e.g., consumer or child representatives, government, or public health groups;
  • A lack of independent, systematic monitoring of the codes; and
  • The limited availability of enforcement mechanisms for non-compliance.

These loopholes and limitations help to explain why food industry self-regulation has not been effective in improving children’s food marketing environment. Further, the revisions to the codes made in 2014 appear to have done little to improve the self-regulatory scheme, and are unlikely to lead to lead to reductions in children’s exposure to unhealthy food marketing.

My article sets out a “responsive” or step-wise approach for strengthening regulation of food marketing to children, by closing off the loopholes in the substantive terms and conditions of the codes, and strengthening regulatory processes, including monitoring and enforcement. Most importantly, I argue, regulation of food marketing to children needs strong government leadership and an approach to protecting children from unhealthy food marketing that doesn’t just rely on voluntary food industry action. There are a range of regulatory options available, even if government is unwilling to introduce new statutory controls on food marketing to children.

 

 

Dr Rodney Syme and Nembutal

rodneysyme_11a_good_death1

A Good Death

In the mid-1970s, a Melbourne urologist, Rodney Syme, sat facing Len, a man whose invasive bladder cancer was causing incontinence and blood clots that blocked the flow of urine.

Len needed to urinate every fifteen minutes, and frequently wet himself.  He was in excruciating pain.  It is cases like this, Syme would later write, in his book, A Good Death, that have caused generations of surgeons to whisper “Please God, do not take me through my bladder” (Syme 2008, 36).

Pale as chalk, “Len looked me straight in the eye”, Syme recalls, and asked “Isn’t there anything else you can do for me?”

Unwilling to treat Len as a “medical pawn”, Syme responded that he could write a prescription for sleeping tablets that Len could self-administer.

Syme writes: “I will never forget the look of intense relief and simultaneous gratitude that suddenly illuminated Len’s pallid face as his wish was granted” (Syme 2008, 38).

Len’s demise was hardly a textbook case of physician-assisted dying, but it was a turning point for Syme.

“I realized at this point that I had commenced on a ‘life of crime’, and that if future patients like Len were to come to me for help, I would have no option, in all conscience, but to continue in this ‘life of crime’” (Syme 2008, 41).

Len died in the mid-1970s.  But ever since then, Rodney Syme has been quietly, and more recently, not-so-quietly, pushing into the grey zone that separates lawful, palliative care from (unlawful) assisted dying.

In March 1997, when the Commonwealth Parliament used its constitutional powers to make laws for the territories to overturn the Northern Territory’s Rights of the Terminally Ill Act 1995 (NT), Rodney Syme vowed publicly to continue providing quiet assistance to patients when needed.

 

Syme v Medical Board of Australia (2016)

In January 2016, the Medical Board of Australia received a mandatory notification under Victoria’s version of the Health Practitioner Regulation National Law.

The notifier was the GP of a man called Bernard Erica.  Mr Erica had tongue cancer and secondary metastases in his lungs, and was at that time receiving palliative care.  His death was expected within one month.

Mr Erica’s GP advised the Medical Board of Australia that Mr Erica had told him that Dr Syme was going to assist Erica to end his life.

What Dr Syme had done with Mr Erica, as with some of his other patients, was to assure Mr Erica that he would give him a drug called Nembutal (pentobartal), that he could use if he chose to.

Medical practitioners are required to notify reasonable suspicions of “notifiable conduct” committed by other registered health practitioners.

The concept of “notifiable conduct” includes placing the public at risk of harm because the practitioner has “practised the profession in a way that constitutes a significant departure from accepted professional standards” (ss 140-144).

Under delegation arrangements, the powers of the Medical Board of Australia to take immediate action in relation to the subject of a complaint are exercised by the Immediate Action Committee (IAC), which is empowered to act immediately if it believes that “the practitioner poses a serious risk to persons” (s 156).

In this case, the IAC investigated the allegations and imposed the following condition on Dr Syme’s right to practice:

“Dr Rodney Syme [MED0000944514] is not to engage in the provision of any form of medical care, or any professional conduct in his capacity as a medical practitioner that has the primary purpose of ending a person’s life”.

Dr Syme appealed.  In Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150, the Victorian Civil and Administrative Tribunal (VCAT) upheld Dr Syme’s application for review.

VCAT set aside the Medical Board’s condition on his practice on the basis that the Tribunal could not form a reasonable belief that “Dr Syme’s conduct places persons at serious risk or that it is necessary to take immediate action to protect public safety” (para 185).

One of the ironies of this decision was that Dr Syme relied successfully on the much-contested distinction between “foresight and intention”.

He successfully denied intending to hasten Mr Erica’s life, or the life of his other patients, despite sometimes giving them possession of a well-known “euthanatic drug” which could not lawfully be used in medical practice in Australia, and despite knowing that his patients’ suicide was – at least – a possible consequence of his action.

The conventional account of palliative care is careful to maintain the distinction between foresight and intention; that is, it acknowledges a conceptual, legal and moral distinction between intending to end a patient’s life, and taking actions with the foresight that death might be a highly likely consequence of those actions.

This distinction does good work in some areas of medicine.  For example, it permits a surgeon to carry out highly risky surgery, including surgery that will “probably fail”, but which may nevertheless represent a patient’s best hope.

The question the Tribunal faced was whether this distinction is appropriately drawn when a doctor delivers euthanatic drugs into the hand of the patient, clearing the way for the patient to commit suicide.  Can the doctor plausibly deny having any intention to assist the patient’s suicide if the patient goes ahead and takes the drug?

This question turned on whether Dr Syme could plausibly argue that his game plan, in giving his patients Nembutal, was to assist the patient to recover a sense of control about their dying process, thereby relieving psychological distress and re-casting the doctor’s actions as a form of palliative care.

In his evidence, Dr Syme admitted he had counselled approximately 1700 patients about end-of-life matters during his career, and had given Nembutal to approximately 10% of them (para 70).

In rare cases Dr Syme would give Nembutal to a patient on his first visit with them because they were at the end stage of a terminal disease and suffering greatly.

However, Dr Syme did not keep written records of the psychological condition of his patients, nor document their mental state after he gave them Nembutal (para 70).

 

Asserting intentions

In A Good Death, Dr Syme pointed to the frailty of doctors’ intentions, writing that:

A doctor’s intentions in end-of-life decisions may be complex, ambiguous, multifactorial and uncertain, and an inadequate basis for legal definition (Syme 2008, 25).

In this case, however, Dr Syme was clear about the purpose of his actions.

“I can say that categorically, that my intention is to give a sense of control and by so doing to ease their suffering” said Dr Syme (para 57).

Dr Syme agreed that doctors are not authorised to prescribe barbiturates like Nembutal, and that this drug cannot be legally obtained by a medical practitioner.

However, the Tribunal pointed out that the lawfulness of Dr Syme’s conduct in obtaining the drug was not in issue.  The Tribunal’s task was limited to determining whether Dr Syme was a danger to his patients (para 137).

In the end, the Tribunal accepted that Dr Syme’s intention in giving patients possession of Nembutal was to give them relief from psychological and existential suffering, and that this palliation occurs because patients feel an increased sense of control and certainty about how their life will end (paras. 129, 143).

The Tribunal also decided that, to the extent that the giving of Nembutal to patients gave them the opportunity to use the drug to end their lives, that consequence (even if foreseen) was “not intended by Dr Syme and can be seen as a secondary but unintended consequence”.

Referring to the principle of “double effect”, the Tribunal wrote that: “The fact that the treatment also has the effect of providing an opportunity for the patient to later ingest the Nembutal is not intended by Dr Syme and can be seen as a secondary but unintended consequence” (147, para (i)).

The Tribunal concluded by saying that it was satisfied that the “the holistic approach adopted by Dr Syme [was] entirely focused upon supporting the patient in life rather than pre-empting the patient’s death” (para 179).

As a result, the Tribunal disagreed that Dr Syme posed a serious risk to persons, or to Mr Erica, and set aside the condition the Medical Board of Australia had imposed on Dr Syme’s practice.

 

A new boundary for palliative care?

In the well-known case of R v Cox (1992) 12 BMLR 38), a doctor administered Potassium Chloride to a patient with the intention of inducing cardiac arrest and death.

KCl has no therapeutic properties, and so its administration supported the inference of an intention to kill.  Since the body had been cremated, Dr Cox was charged with attempted murder only.  He was convicted; his merciful motive was not considered relevant.

If Dr Cox had merely given possession of the KCL to his patient on the premise that it might relieve suffering by giving the patient a greater sense of control, leaving it up to the patient whether or not to ingest the drug, could he – and should he – have avoided liability on that basis?

That is an issue of criminal law that awaits determination in Australia.

However, unlike the practice of “terminal sedation” – which ensures that a patient dies while unconscious due to sedation, doctors who dispense non-licensed drugs to patients in the quantities that would be needed for a successful suicide are essentially acting outside the conventions of the specialty of palliative care.

Making oneself a test case is a risky business.  Dr Syme risks consequences that go well beyond a condition being placed on his right to practice medicine.

That said, from my knowledge of him, Dr Syme is a decent, compassionate doctor and if I were terminally ill I would consider myself fortunate to have him at my bedside.

Moral conservatives may feel this ruling gives Syme carte blanche to assist suicides, inappropriately asserting an innocent intention while giving patients lethal quantities of a non-therapeutic drug that doctors have no business distributing.

Patients like Mr Erica may beg to differ.  They are less interested in the coherence of medical law, and more interested in a good death.

Are you interested in studying health law?  Sydney Law School’s Master of Health Law and Graduate Diploma in Health Law are open to both lawyers and non-lawyers.  Units of study taught in 2017 include Death Law, taught by Professor Cameron Stewart on 20, 21 April & 11, 12 May 2017.  For information on Sydney Health Law, the Centre for Health Law at Sydney Law School, click here.