Religious discrimination in Australian health law: hype or reality?

Queensland has passed the Voluntary Assisted Dying Act 2021.

I’m disappointed in Queensland’s Parliament, not for passing assisted dying legislation, but for consciously trampling over the religious beliefs of Catholic and other religious healthcare organisations.

Catholic hospitals are right to be aggrieved.  It’s entirely predictable that church institutions are now considering civil disobedience. (See “Catholic Hospitals’ Revolt on Euthanasia” Weekend Australian 21-22 August 2021, p 4. See also here).

I mean, if you genuinely believe that intentional killing is wrong, you don’t just help it along because a bunch of politicians told you to, do you?

Catholic moral beliefs preclude intentional killing, yet Queensland’s law will force Catholic hospitals to open their doors and to facilitate actions to end the lives of patients in their care, on their premises, by non-credentialed doctors who do not share their moral values.

The passage of assisted dying laws in Victoria (2017), Western Australia (2019), Tasmania (2021), South Australia (2021), and now Queensland illustrates the growing heft of personal autonomy as a secular value in Australian life.

(I call this the “Dombrink thesis”, after American scholar Professor John Dombrink, who demonstrated the resilience of libertarianism, through – and despite – America’s culture wars.  See here, here, and here.)

Recent assisted dying laws follow on the heels of two decades of reform that have greatly liberalised abortion laws in every State and Territory; see eg here, here, and here.

But if personal autonomy means anything, it ought to extend to those who, despite these changes, have a sincere, morally-grounded opposition to killing and assisted suicide.

In my view, co-opting religious health care organisations to facilitate euthanasia is a step too far.

For further detail on what Queensland’s new law will force religious health care facilities to do, see below.

 

Sharing the love? The importance of singing in church in the middle of a pandemic

Let’s be clear: not all complaints of discrimination or oppression, by churches, in Australia’s largely tolerant democracy, are worthy.

For example, in a Facebook post on 2 July, Pastor Brian Houston of Hillsong fame dismissed Covid delta outbreak restrictions that prohibited singing in church as “religious discrimination…so archaic it’s hard to believe”.

He urged his followers: “Let’s make a stand”.

Judging by their responses, some of Houston’s followers are primed for persecution and reluctant to see themselves as beholden to earthly laws (that is, emergency public health orders).

On 16 June 2021, an outbreak of the insanely infectious delta variant of the Covid virus began in New South Wales.  Daily cases are currently averaging over 1200; see here.

On 20 June, masks became mandatory in “places of public worship, being used for public worship or religious services”, in 7 local government areas.

On 23 June, singing in non-residential premises – including places of worship – was banned. However, a number of exceptions applied, including singing in a performance or rehearsal, singing in educational institutions, singing for the purposes of instruction in singing, or if “the premises are a place of public worship, and the persons singing are members of a choir”.

On 26 June, the exception for choirs was eliminated.

In response to questions raised at a Religious Communities Forum held on 28 June, NSW Health advised forum members by email that the delta outbreak restrictions operating at that time (the Public Health (Covid-19 Temporary Movement and Gathering Restrictions) Order 2021, dated 26 June 2021) did, indeed, prevent singing in places of worship, even if a religious leader was singing to a largely empty church or place of worship as part of a livestream.  Masks must also be worn.

The intent of the restrictions, NSW Health advised, was to prevent transmission between, for example, a singing pastor, and people providing technical assistance during the livestream, given previous evidence of tansmission via singing in a place of worship.

NSW Liberal MP Tanya Davies raised Houston’s concern with Premier Gladys Berejiklian and Health Minister Brad Hazzard.  Hazzard granted an exemption on 3 July, with specified safeguards: see here.

I suspect that quiet diplomacy by Houston would have been equally effective, if the need for religious leaders to sing directly to camera outweighed the importance of protecting others present in the venue from the risk of acquiring the highly infectious delta variant.

I notice one comment on Pastor Houston’s post:

“It’s time people stopped seeing everything as an attack or discrimination. Seriously we are in a pandemic.  Christian leaders should be setting a good example”.

Amen to that. As to which, see here, and here.

 

Moral arm-twisting in Queensland’s voluntary assisted dying legislation

While some complaints of discrimination by religious leaders are over-blown, I would put Part 6 of Queensland’s Voluntary Assisted Dying Act in a different category.

The new Act respects the right of a health practitioner not to provide information about voluntary assisted dying, nor to participate in the assessment process for lawful access to assisted dying that the legislation makes available (s 84).

However, Part 6 co-opts health practitioners and forces them to facilitate that assessment process, irrespective of their personal beliefs about the ethics of killing.

Let’s count the ways.

Firstly, a health practitioner with a conscientious objection must either refer a patient requesting information on assisted dying to an officially approved “navigator service” for assisted dying, or to a health practitioner who is known not to have moral scruples about assisted dying and may be willing to assist (s 84(2)).

Secondly, a “relevant entity” (meaning a health care establishment such as a hospital, hospice or nursing home) must not hinder a person’s access to information about assisted dying.

In order not to do so, the health facility must provide entry to a registered health practitioner, or member or employee of an approved navigator service in order to “provide the requested information to the person about voluntary assisted dying” (ss 90, 156).

Thirdly, the new Act requires a health care facility operated by a church or religious organisation to provide access to an (external) medical practitioner who is willing to act as the patient’s “coordinating medical practitioner” for the purposes of facilitating assessment and taking the various actions required by the legislation in response to the patient’s first, second and final requests for assistance to die (ss 9, 92-93).

If the medical practitioner requested by the patient is unable to attend, the religious health care organisation must facilitate the transfer of the patient to and from a place where the patient can formally request assistance from a medical practitioner who is willing to act as the coordinating medical practitioner (ss 9, 92(3); 93(3)).

Fourthly, the religious health care facility must facilitate the coordinating medical practitioner (or their delegate) to carry out a “first assessment” of the patient’s eligibility for dying assistance under the Act, either by permitting this to occur within the facility, or by facilitating transfer of the person to and from a place where the assessment can take place (ss 9, 19, 94).

The same obligations apply to the second, independent “consulting assessment” that occurs if the coordinating medical practitioner concludes from the first assessment that the patient is eligible for voluntary assisted dying (ss 9-10, 30, 95).

After making a third and final request, and undergoing a final review, an eligible patient may decide to self-administer a voluntary assisted dying drug or, if advised that this is inappropriate, may choose to have the drug administered by the coordinating practitioner (ss 50, 56).

This step triggers a number of authorisations, including the right to prescribe, supply, possess and self-administer, or administer the drug overdose to the patient (ss 52-53).

Again, the legislation requires a religious health care facility to provide access to the coordinating practitioner so that the patient can choose how the drug will be delivered – whether within the facility, or by assisting transfer and travel to a place outside the facility where these decisions can be made (s 96).

The facility must then provide access to the administering practitioner and witnesses to enable assisted dying to take place on the premises, and must not hinder self-administration if the patient has made a self-administration decision (s 97).

These statutory requirements honour the voluntary assisted dying principle that “a person should be supported in making informed decisions about end of life choices” (s 5(f)), and that “access to voluntary assisted dying…should be available regardless of where a person lives in Queensland” (s 5(e)).

Another principle recognised in the legislation is that “a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected” (s 5(h)).

However, by forcing religious health care facilities to cooperate in processes whose central aim is intentional killing, (I am not here debating the rigour of safeguards) the legislation tramples over well-known and defended moral values that lie at the heart of professional, competent, yet religiously-informed health care.

The bottom line

Like abortion, assisted dying is one of the enduring ethical fault lines in medicine.

Politicians can’t legislate it away.

Part 6 of Queensland’s Act seems hell-bent on making victims of doctors and religious organisations that have long-standing, deeply felt moral objections to intentional killing.

There ought to be room in Australia’s liberal democracy for religious hospitals and hospices to offer their services, including high-quality palliative care, in accordance with long-standing ethical values, without putting euthanasia on the menu.

Patients who request assessment for assisted dying should be transferred to a facility where such actions do not offend long-standing institutional values, as provided in South Australia’s legislation, which recognises a right of conscientious objection for hospitals and other health care establishments (see s 11, although this does not extend to nursing homes).

Sparks v Hobson must go to the High Court: here’s why

In NSW, Section 5O of the Civil Liability Act provides a defence to a doctor or health professional who is defending a negligence claim.

Under s 5O, a person will not be liable “if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.

S 5O is often regarded as re-introducing a version of the Bolam test, since the standard of care required of a professional person is ultimately determined by the practices of his or her peers.

In Dobler v Halverson, the NSW Court of appeal clarified how s 5O operates.  It pointed out that in a medical negligence case, both parties will call expert evidence to attempt to demonstrate that what the defendant did fell short of – or did not fall short of – acceptable professional practice [59].

According to the Court, the effect of s 5O is that if the court finds the doctor’s conduct was in accordance with “professional practice regarded as acceptable by some” in the profession, then (subject to the court considering professional opinion to be irrational), that professional practice will set the standard of care and the plaintiff patient will therefore fail: [59].

 

Sparks v Hobson; Gray v Hobson

Understanding about the scope of s 5O has been thrown into disarray by the NSW Court of Appeal in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 (1 March 2018).

The facts are complex.  Mr Hobson suffered from Noonan Syndrome, a genetic disorder that resulted in serious curvature of his spine and a reduced chest cavity that prevented his left lung from filling with air.  This caused breathlessness and restrictive airways disease.  He underwent surgery that was intended to strength his spine and relieve pressure on the chest cavity.

The first stage of the operation was uneventful; however, the second stage was brought forward because Mr Hobson was in intensive care due to pneumonia in his left lung and the obstruction of his left airway.  The second stage of the operation required Mr Hobson to lie face down on the operating table, while screws were placed in his spine.

The position of Mr Hobson during the operation, and the placing of the screws, created further pressure on the chest wall, further restricting his breathing.

Mr Hobson was regarded by the expert witnesses as presenting a “very unusual and difficult anaesthetic challenge due to the significant compression of his left main bronchus by his spine and due to the requirement for prone positioning during surgery” [296]

The operation began at 7pm on 17 November 2009.  The level of carbon dioxide in Mr Hobson’s blood rose during the surgery, and at 9.30pm, Dr Sparks administered a drug called vecuronium to try to improve ventilation.  It led to no improvement; also, vecuronium was a muscle relaxant, and it meant that spinal cord monitoring was thereafter ineffective.  From that point onwards, Dr Sparks could only be guided by the oxygen and blood pressure readings “as his criteria for stopping the operation” [177].

Dr Sparks described Mr Hobson’s high blood carbon dioxide level, at 8.30 to 8.35pm as “very serious”.  He had what the clinicians called “profound respiratory and metabolic acidosis”.  At 8.50, Dr Sparks made two telephone calls to two colleagues (Dr Barratt, an anaesthetist, and Dr Marshman, a cardiothoracic surgeon), but they were unable to make any further suggestions about how to reduce the risk of cardiovascular failure.

At around 9.25pm, Mr Hobson’s blood pressure and oxygen levels dropped dramatically, and at Dr Spark’s request, the wound was closed rapidly and the operation terminated.

One of the issues in dispute was whether Dr Sparks should have terminated the operation at a time earlier than he did.  There was evidence that due to respiratory collapse around 9.30pm, precipitated by obstruction of circulation (causing lack of oxygen), irreparable damage was done to Mr Hobson’s spinal cord, leaving him a paraplegic.

Although the surgery was later completed successfully, Mr Hobson’s paraplegia remained.

The trial judge found against both Dr Sparks, and the principal surgeon, Dr Gray.

On appeal, the Court of Appeal unanimously allowed Dr Gray’s appeal.  However, Dr Sparks’ liability was upheld by a majority of 2:1.

The Court of Appeal’s decision in Sparks v Hobson raises a number of issues relating to the interpretation of provisions in the Civil Liability Act.

These include the relationship between s 5O and s 5B, and the meaning of s5I.

This post focuses specifically on the court’s interpretation of the defence in s 5O.

The uncertainty introduced by the irreconcilable judgments of the Court of Appeal in Sparks v Hobson is so significant that it will be a great shame if leave to appeal to the High Court is not granted.

 

Irreconcilable judgments

In McKenna v Hunter & New England Local Health District [2013] NSWCA 476, Macfarlan JA pointed out that the defence in s 5O is premised on the defendant doctor demonstrating that they conformed with “a practice that was in existence at the time the medical service was provided” and secondly, that the “practice was widely although not necessarily universally accepted by peer professional opinion as competent professional practice”: [160].

This emphasis on the existence of a “practice” – in the sense of a pattern of response by medical practitioners to a clinical scenario, is in contradistinction to there simply being a widespread view among peers that what the defendant did in the circumstances of the case constituted “competent professional practice”.

The significance of the need for a “practice”, as suggested by Macfarlan JA, is that in an unusual case, there may be no relevant practice in existence that the defendant doctor can identify and appeal to for the purposes of a defence.

 

Basten JA

In Sparks v Hobson, Basten JA rejected the suggestion in McKenna that the defence in s 5O only applies where the defendant can identify “a regular course of conduct adopted in particular circumstances” [31].

McKenna was overturned by the High Court, so Basten JA thought that the reasoning of the majority of the Court of Appeal, on the interpretation of s 5O, was no longer binding: [35]

He said: “there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice” [31].

In a novel case, Basten JA thought that a defendant may invoke the defence in s 5O “by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner” [31].

Although Basten JA did not think a defendant needed to establish they acted in accordance with a “practice” (understood in the sense of an established course of conduct followed in the circumstances of the case), he nevertheless concluded that Dr sparks had failed to establish a standard, widely accepted in Australia, of competent professional practice, for the purposes of availing himself of the s 5O defence.

 

Macfarlan JA

In Sparks v Hobson, Macfarlan JA reiterated his approach in McKenna.  He said: “It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct” [211].

In this case, the surgery was highly unusual.  Although the expert witnesses all agreed Dr Sparks acted reasonably in the actions he took during the operation, and although they considered professional peers would likely have taken the same view, the experts and the defendant did not point to an established practice that was followed by Dr Sparks in the circumstances of the case [221].

In Macfarlan JA’s analysis, this was fatal to Dr Sparks’ defence: see [223].

 

Simpson JA

The third justice in the NSW Court of Appeal was Simpson JA, who considered that she was bound to accept the construction of s 5O adopted in the McKenna case.

But for the constraint of precedent, Simpson JA would not have adopted the approach of Macfarlan JA.

She said: “As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed.  It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case.  It does not appear to me that s 5O was intended to have such limited application.  However, as I have said, I consider myself constrained to follow and apply that decision” [336].

In Justice Simpson’s view, Dr Sparks failed to establish a defence based on s 5O because he could not identify a “practice” to which he conformed in the highly challenging and unusual circumstances of the case.  This, “notwithstanding that the overwhelming medical evidence was that his conduct was in accordance with what was widely accepted in Australia as competent professional practice’” [346].

Despite this, Simpson JA found in favour of Dr Sparks because she thought that in the circumstances of the case, s 5I applied.

S 5I provides that a person is not liable for the materialisation of an inherent risk that cannot be avoided by the exercise of reasonable care and skill.

In her Honour’s view, once it was found that Mr Hobson’s deteriorating condition warranted the surgery “as emergency surgery”, and that the surgery carried the risk of paraplegia, s 5I applied to excuse Dr Hobson from liability.

In addition, Simpson JA concluded that the evidence did not establish that the failure by Dr Sparks to terminate the operation before 9.30pm amounted to a departure from the standard of reasonable care and skill required of a specialist anaesthetist [350], given that Mr Hobson “needed urgent surgery to ensure his survival”: [352].

 

The future of the s 5O defence

As things stand, the judgments of Justices Macfarlan and Simpson in Sparks v Hobson give majority support to an interpretation of s 5O that limits its scope as a defence for doctors in medical negligence proceedings.

The issue at stake goes to the heart of what the defence requires courts to do.

In the view of Justice Simpson, the task of the court when considering the defence in s 5O is not to choose between competing views but to determine whether as a factual matter, the acts and/or omissions of the defendant that give rise to allegations of breach of duty of care “had the acceptance of peer opinion, even if other peer opinion was different”: [345].

This view is consistent with the assumption that s 5O was intended to introduce a version of the Bolam principle into New South Wales law, thereby ensuring that medical practices, rather than a court, ultimately define the standard of care by which a doctor’s conduct will be judged.

If the view of Justice Macfarlan is followed, by contrast, the role of the court would focus on determining whether a relevant “practice” exists on which a defence might be founded.

In cases where no such practice exists, s 5O can have no application.

The question of standard of care and breach would then fall to be determined by the court, applying common law principles, “guided by the evidence of medical practitioners skilled in the area of medical practice in question” [321], and altered (to the extent that it is altered) by the principles set out in 5B [see [338] per Simpson JA].

 

So, on what basis did the  majority Justices consider that Dr Sparks had breached his duty of care?

Justices Basten and Macfarlan held against Dr Sparks.

According to Justice Macfarlan, Dr Sparks’ failure to terminate the operation was not limited to a short period of time, but extended for at least 20 minutes after the two telephone calls to Dr Barratt and Dr Marshmann until 9.25pm, when Mr Hobson’s blood pressure and oxygen level dropped.  By then the damage had been done.

Essentially, Justice Macfarlan thought the breach of duty was made out because Dr Sparks unreasonably ignored a “serious and imminent intra-operative danger” (the high carbon dioxide levels) when the other countervailing risk (the risk to Mr Hobson if the operation was terminated) did not have the same immediacy: [188].

Also, “Dr Sparks had to assess and respond to the immediate danger to Mr Hobson (rather than the more remote risks that could eventuate if the operation was not completed) because Dr Sparks’ duty as principal anaesthetist was to protect the patient’s well-being whilst the operation was in progress” [182].

Justice Basten agreed that the decision to allow the operation to continue for so long, after he had sought help from experienced colleagues, without success, was more than just an “erroneous clinical judgment” but was a breach of his duty of care to Mr Sparks [93].

Announcement: Sydney Law School, QUT combine in hosting health law masterclass

Sydney Health Law, the focal point for health law teaching and research at Sydney Law School, and the Australian Centre for Health Law Research at QUT, are co-hosting a health law masterclass at Sydney Law School on Friday 6 October, 9.00am-4.00pm.

Click here for registration, and a preview of the program and of the presenters.

The masterclass will feature discussion of legal issues of interest to both practising health lawyers and practicing health professionals and will features academic staff from Sydney Health Law, the Australian Centre for Health Law Research, and distinguished legal and health practitioners.

Thematic areas to be covered include developments in professional liability, recent health law issues relating to children, reproduction and the beginning of life, consent to medical treatment, and end of life decision-making and legislation.

This event features a “controversies and hot topics” panel featuring all the presenters.

This event will be of particular interest to practising health lawyers who provide services to the health sector, health professionals with an interest in legal, bioethical and regulatory issues, executives and managers of health care organisations, and students.

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.