1 Providing Palliative Care at the End of Life: Should Health Professionals Fear Regulation? Lindy Willmott, Ben White, Donella Piper, Patsy Yates, Geoffrey Mitchell and David Currow* Anecdotal evidence from Australia and abroad suggests that health professionals may fear potential legal and/or professional repercussions if their patient dies after receiving pain relieving medication at the end of life. As a result, patients may be under-medicated and their pain and other symptoms not adequately relieved. The regulatory repercussions from inappropriate administration of medications are potentially broad and include criminal charges, civil negligence claims, coronial investigations and disciplinary proceedings. But despite these potentially serious repercussions, a review of publicly available cases in Australia reveals there has been comparatively little judicial or quasi-judicial scrutiny where over-medication is alleged to have resulted in a patient’s death. In this article, we describe the regulatory framework that governs this field of medical practice and analyse the extent to which the actions of health professionals have been scrutinised, and the consequences of that scrutiny. We identify a number of themes arising from this analysis and conclude that fears of legal or professional repercussions are largely unfounded, and that existing laws and other forms of regulation should not inhibit the prescription and administration of adequate pain and other symptom relief to people at the end of life. Keywords: doctrine of double effect; Schedule 8 drugs; end of life care; inadequate pain relief; palliative care; end of life law; regulation of pain medication; legal repercussions; disciplinary proceedings I. INTRODUCTION Advances in medicine mean that people are living longer with chronic conditions. 1 However, and in spite of these advances, some patients do not have their pain and symptoms adequately controlled as they approach death. 2 This is surprising given that Australia boasts a very high standard of palliative * Lindy Willmott: Professor, Director, Australian Centre for Health Research, Faculty of Law QUT. Ben White: Director, Australian Centre for Health Law Research, Faculty of Law QUT. Dr Donella Piper: Senior Lecturer, Management and Organisational Studies, UNE Business School, University of New England. Patsy Yates: Head of School of Nursing, School of Nursing QUT. Geoffrey Mitchell: Professor of General Practice and Palliative Care, Faculty of Medicine, University of Queensland. David Currow: Professor of Palliative Medicine, Faculty of Health, University of Technology Sydney. Correspondence to: l.willmott@qut.edu.au; bp.white@qut.edu.au; dpiper@une.edu.au; p.yates@qut.edu.au; g.mitchell@uq.edu.au; david.currow@uts.edu.au. 1 C Seale, “Changing Patterns of Death and Dying” (2000) 51 Social Science and Medicine 917; L De Lima and T Pastrana, “Opportunities for Palliative Care in Public Health” (2016) 37 Annual Review of Public Health 357, 360. 2 M Akashi, E Yano and E Aruga, “Under-diagnosis of Pain by Primary Physicians and Late Referral to a Palliative Care Team” (2012) 11 BMC Palliative Care 7; J Menten and J De Lepeleire, “Emergency Hospital Admission for Pain in Palliative Patients: A Crucial Role for General Practitioners” (2006) 12 The European Journal of General Practice 133. See, eg, Australian Commission on Safety and Quality in Health Care, Safety and Quality of End-of-Life Care in Acute Hospitals: A Background Paper (August 2013) 8 <https://www.safetyandquality.gov.au/wp- content/uploads/2013/09/SAQ083_End_of_life_care_V15_FILM_REVISED_TAGGED.pdf>; Pain Australia, who note “[i]n palliative care, inadequate pain relief and symptom management are barriers to quality end-of-life care”, National Pain Strategy (2011) 21 <http://www.painaustralia.org.au/static/uploads/files/national-pain-strategy-2011-wfvjawttsanq.pdf>. The National Pain Strategy is the result of collaborative work of health professionals, consumers and funders, who agreed that an integrated approach was needed to improve care for all types of pain. The National Pain Strategy and the National Pain Summit were led by the Australian and New Zealand College of Anaesthetists, the Faculty of Pain Medicine, the Australian Pain Society and the consumer group Chronic Pain Australia, in collaboration with inaugural supporters, MBF Foundation and the University of Sydney Pain Management Research Institute Pain Australia; NSW Agency for Clinical Innovation Palliative Care Network, Diagnostic