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Papers by Andrew McGee
In this submission, we identify a number of end-of-life issues that the Committee may wish to con... more In this submission, we identify a number of end-of-life issues that the Committee may wish to consider during the Inquiry. Where appropriate, we also make recommendations based on our research in the field. 1. The law should permit a narrowly defined cohort of individuals to request assistance to die, within the contraints of a legislative regime that protects the rights and interests of the vulnerable in our community. 2. Although we prefer the enactment of legislation in which providing assistance to die is lawful, an alternative option is to develop prosecutorial guidelines that indicate how discretion to prosecute or not prosecute is likely to be exercised when individuals provide assistance to others to die. 3. The nature of the practice of ‘terminal’ or ‘palliative’ sedation, and the legal and ethical implications of that practice should be considered. 4. The practice of voluntary stopping eating and drinking, and the extent to which palliative care provided to an individual w...
The Australian & New Zealand journal of obstetrics & gynaecology, Jan 22, 2018
In this paper, we present two grounds for arguing that abortion should be decriminalised. First, ... more In this paper, we present two grounds for arguing that abortion should be decriminalised. First, we consider the implications of the fact that the long-standing ethical debate concerning the morality of abortion has to date proven intractable. We maintain that because the philosophical literature has failed to demonstrate conclusively that views either for or against abortion's moral acceptability are false, the matter remains at a stalemate in terms of rational debate, contributing to the ongoing absence of political and popular consensus about the issue in our society. In these circumstances, we argue, the law should adopt a minimalist position by not imposing criminal sanctions for abortion. Second, we present evidence, often neglected in the moral debates about abortion, that the risks of carrying a fetus to term and of delivery are substantial for a woman. Most laws recognise that, should her life be endangered by her pregnancy, a woman's right to life shall prevail. Ho...
BMJ Supportive & Palliative Care, 2013
Background There is currently some debate about the extent to which advance decisions, advance st... more Background There is currently some debate about the extent to which advance decisions, advance statements of wishes and preferences, or other forms of advanced care planning should be followed when they are ACPEL abstracts
QUT Law Review, 2016
The conference attracted almost 350 delegates from 26 countries and included representation from ... more The conference attracted almost 350 delegates from 26 countries and included representation from over a dozen different disciplines with an interest in end of life care.
Medical Law Review, 2005
Some doubt has been expressed concerning whether artificial nutrition can properly be regarded as... more Some doubt has been expressed concerning whether artificial nutrition can properly be regarded as medical treatment, and the issue was wrestled with in Bland. The judges decided that it was, in fact, to be regarded as medical treatment, but this view has been criticised in the academic literature. See,
Journal of Medical Ethics, 2013
In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompe... more In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) make it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved.
Journal of Bioethical Inquiry, 2011
In this paper I discuss a recent exchange of articles between Hugh McLachlan and John Coggon on t... more In this paper I discuss a recent exchange of articles between Hugh McLachlan and John Coggon on the relationship between omissions, causation and moral responsibility. My aim is to contribute to their debate by isolating a presupposition I believe they both share, and by questioning that presupposition. The presupposition is that, at any given moment, there are countless things that I am omitting to do. This leads them both to give a distorted account of the relationship between causation and moral or (as the case may be) legal responsibility, and, in the case of Coggon, to claim that the law's conception of causation is a fiction based on policy. Once it is seen that this presupposition is faulty, we can attain a more accurate view of the logical relationship between causation and moral responsibility in the case of omissions. This is important because it will enable us, in turn, to understand why the law continues to regard omissions as different, both logically and morally, from acts, and why the law seeks to track that logical and moral difference in the legal distinction it draws between withholding life-sustaining measures and euthanasia.
Cambridge Quarterly of Healthcare Ethics, 2012
Intensive Care Medicine, 2021
We read with interest Vincent and Creteur’s letter regarding the Statement from an International ... more We read with interest Vincent and Creteur’s letter regarding the Statement from an International Collaborative and thank them for the opportunity to clarify certain concepts [1, 2]. Donation after the circulatory determination of death in controlled circumstances (cDCDD) contributes to increasing the availability of organs for transplantation, and also to respect the values and preferences of the dying patient. The aim of our expert panel is to help expand cDCDD across the world, based on practices that are grounded on solid ethical principles. The Statement does not recommend waiting 72 h between the decision to withdraw life-sustaining therapies (WLST) and that of activating the cDCDD process. This relates to the observation period before reaching the decision to WLST, an approach recommended by several intensive care societies to guide professionals in establishing a prognosis and making clinical decisions [3]. Once the decision to WLST has been made, if evolution to brain death is expected to occur within a short period of time, then delaying the WLST may be considered after discussion with the family [4]. This can enable the determination of death using neurologic criteria and activation of the donation after brain death pathway— allowing more organs to be transplanted and better posttransplant outcomes to be achieved. The expert panel of the cDCDD Statement proposes that criteria to determine death by circulatory criteria are based on the permanent cessation of circulation to the brain—which means that circulation to the brain cannot return spontaneously or intentionally after death has been declared. This implies that cessation of the circulation is followed by an observation period to witness and exclude the possibility of auto-resuscitation and that no intervention that restores circulation to the brain is undertaken. A recent study has documented cases of auto-resuscitation up to 4.20 min after asystole following the WLST [5]. As a result, we recommend a minimum observation period of 5 min before death is declared. We agree with Vincent and Creteur that a planned cDCDD that does not proceed because death does not occur within a timeframe that enables successful organ recovery, can cause harm and frustration (“terrible”, in their words). During the WLST, sedation should be titrated to ensure the comfort of the patient and the absence of suffering, without hastening death. This principle applies equally whether organ donation follows or not. When WLST occurs outside the intensive care unit (ICU, usually, the operating theatre) and the patient does not die within such a timeframe, then the patient is returned to the ICU to allow the continuation of endof-life care by the same team that looked after them and their families before they were moved. Relatives would have been made aware of this possibility before WLST. Finally, we all seek the best outcomes for recipients of organs recovered from cDCDD donors. This must be achieved by providing robust professional and ethical guidance, without jeopardizing the trust and support of a society that are essential to the success of deceased donation. We agree with “please, do not waste time”—but “please, avoid undue haste”. *Correspondence: bdominguez@sanidad.gob.es 1 Organización Nacional de Trasplantes, C/Sinesio Delgado 6, pabellón 3, 28029 Madrid, Spain Full author information is available at the end of the article
Intensive Care Medicine, 2021
A decision to withdraw life-sustaining treatment (WLST) is derived by a conclusion that further t... more A decision to withdraw life-sustaining treatment (WLST) is derived by a conclusion that further treatment will not enable a patient to survive or will not produce a functional outcome with acceptable quality of life that the patient and the treating team regard as beneficial. Although many hospitalized patients die under such circumstances, controlled donation after the circulatory determination of death (cDCDD) programs have been developed only in a reduced number of countries. This International Collaborative Statement aims at expanding cDCDD in the world to help countries progress towards self-sufficiency in transplantation and offer more patients the opportunity of organ donation. The Statement addresses three fundamental aspects of the cDCDD pathway. First, it describes the process of determining a prognosis that justifies the WLST, a decision that should be prior to and independent of any consideration of organ donation and in which transplant professionals must not participate. Second, the Statement establishes the permanent cessation of circulation to the brain as the standard to determine death by circulatory criteria. Death may be declared after an elapsed observation period of 5 min without circulation to the brain, which confirms that the absence of circulation to the brain is permanent. Finally, the Statement highlights the value of perfusion repair for increasing the success of cDCDD organ transplantation. cDCDD protocols may utilize either in situ or ex situ perfusion consistent with the practice of each country. Methods to accomplish the in situ normothermic reperfusion of organs must preclude the restoration of brain perfusion to not invalidate the determination of death.
Journal of Critical Care, 2020
End-of-life (EOL) care has become an integral part of intensive care medicine and includes the ex... more End-of-life (EOL) care has become an integral part of intensive care medicine and includes the exploration of possibilities for deceased organ and tissue donation. Donation physicians are specialist doctors with expertise in EOL processes encompassing organ and tissue donation, who contribute significantly to improvements in organ and tissue donation services in many countries around the world. Donation physicians are usually also intensive care physicians, and thus they may be faced with the dual obligation of caring for dying patients and their families in the intensive care unit (ICU), whilst at the same time ensuring organ and tissue donation is considered according to best practice. This dual obligation poses specific ethical challenges that need to be carefully understood by clinicians, institutions and health care networks. These obligations are complementary and provide a unique skillset to care for dying patients and their families in the ICU. In this paper we review current controversies around EOL care in the ICU, including the use of palliative analgesia and sedation specifically with regards to withdrawal of cardiorespiratory support, the usefulness of the so-called doctrine of double effect to guide ethical decision-making, and the management of potential or perceived conflicts of interest in the context of dual professional roles.
Journal of Critical Care, 2020
CRITCON-Pandemic Levels with an associated Operational Responsibility Matrix were recently publis... more CRITCON-Pandemic Levels with an associated Operational Responsibility Matrix were recently published by the Intensive Care Society as a modification to Winter Flu CRITCON levels, to better account for differences between a winter flu surge in criticalcare activity and the capacity challenges of the COVID-19 pandemic1. In this paper we propose an expansion and explanation of the Operational Matrix to suggest a stepwise ethical approach to clinician responsibility. We propose and outline the main ethical riskscreated at each level and discuss how those risks can be mitigated through a balanced application of the predominant ethical principle which in turn provides practical guidance to clinician responsibility. We thus seek to specify the ethical and legal principles that should be used in applying the Operational Matrix, and what the practical effects could be.
Current opinion in organ transplantation, 2018
The recently developed donation after circulatory death (DCD) heart transplant technique, pioneer... more The recently developed donation after circulatory death (DCD) heart transplant technique, pioneered by Papworth Hospital in the UK, involves the use of extracorporeal perfusion technologies to restart the donor heart in situ and thereby restore the donor's own circulation, after first isolating the donor's cerebral circulation. By restoring the circulation in the deceased donor, even if the cerebral circulation is excluded, the Papworth technique challenges the acceptability of death determination in DCD. This study uses as its exemplar case the Papworth DCD heart technique to review and make wider comment about death determination in DCD. We seek to answer three challenges to ethical propriety raised by the Papworth technique: death determination using the permanence standard (common to all DCD practice); restoration of heart contractility and circulation in the body; and active prevention of the restoration of brain circulation by use of a cross-clamp to isolate the cerebr...
Bioethics, 2016
The other way the definition has been held to be satisfied is by the irreversible loss of all bra... more The other way the definition has been held to be satisfied is by the irreversible loss of all brain function. There is considerable debate about this alternative criterion that we shall not enter into here. We focus exclusively on the circulatory-respiratory criterion. 3 The dead donor rule has a number of different expressions, but Franklin Miller and Robert Truog accept the common reading that donors must be determined to be dead before organs can be procured. Miller and Truog. op.cit. note 1, p. 113. 4 A. R. Joffe et al. Donation after cardiocirculatory death: a call for a moratorium pending full public disclosure and fully informed consent.
The conversation, 2014
There is a clear legal distinction in Australia, the United Kingdom, and the United States betwee... more There is a clear legal distinction in Australia, the United Kingdom, and the United States between withdrawing life-prolonging treatment – such as ventilation for a person who can’t breathe unaided, or artificial nutrition and hydration for those who can’t eat and drink – and euthanasia, a lethal injection or potion. But philosophers and legal academics disagree. The almost unanimous view is that when doctors withdraw life-prolonging treatment from a patient they are killing her rather than allowing her to die from her underlying condition. On this basis, they argue the law is incoherent because it prohibits killing by lethal injection or lethal potion, while permitting killing by withdrawing life-prolonging treatment from those dependent on it. I disagree; withdrawing life-prolonging treatment is not the same as killing.
In this submission, we identify a number of end-of-life issues that the Committee may wish to con... more In this submission, we identify a number of end-of-life issues that the Committee may wish to consider during the Inquiry. Where appropriate, we also make recommendations based on our research in the field. 1. The law should permit a narrowly defined cohort of individuals to request assistance to die, within the contraints of a legislative regime that protects the rights and interests of the vulnerable in our community. 2. Although we prefer the enactment of legislation in which providing assistance to die is lawful, an alternative option is to develop prosecutorial guidelines that indicate how discretion to prosecute or not prosecute is likely to be exercised when individuals provide assistance to others to die. 3. The nature of the practice of ‘terminal’ or ‘palliative’ sedation, and the legal and ethical implications of that practice should be considered. 4. The practice of voluntary stopping eating and drinking, and the extent to which palliative care provided to an individual w...
The Australian & New Zealand journal of obstetrics & gynaecology, Jan 22, 2018
In this paper, we present two grounds for arguing that abortion should be decriminalised. First, ... more In this paper, we present two grounds for arguing that abortion should be decriminalised. First, we consider the implications of the fact that the long-standing ethical debate concerning the morality of abortion has to date proven intractable. We maintain that because the philosophical literature has failed to demonstrate conclusively that views either for or against abortion's moral acceptability are false, the matter remains at a stalemate in terms of rational debate, contributing to the ongoing absence of political and popular consensus about the issue in our society. In these circumstances, we argue, the law should adopt a minimalist position by not imposing criminal sanctions for abortion. Second, we present evidence, often neglected in the moral debates about abortion, that the risks of carrying a fetus to term and of delivery are substantial for a woman. Most laws recognise that, should her life be endangered by her pregnancy, a woman's right to life shall prevail. Ho...
BMJ Supportive & Palliative Care, 2013
Background There is currently some debate about the extent to which advance decisions, advance st... more Background There is currently some debate about the extent to which advance decisions, advance statements of wishes and preferences, or other forms of advanced care planning should be followed when they are ACPEL abstracts
QUT Law Review, 2016
The conference attracted almost 350 delegates from 26 countries and included representation from ... more The conference attracted almost 350 delegates from 26 countries and included representation from over a dozen different disciplines with an interest in end of life care.
Medical Law Review, 2005
Some doubt has been expressed concerning whether artificial nutrition can properly be regarded as... more Some doubt has been expressed concerning whether artificial nutrition can properly be regarded as medical treatment, and the issue was wrestled with in Bland. The judges decided that it was, in fact, to be regarded as medical treatment, but this view has been criticised in the academic literature. See,
Journal of Medical Ethics, 2013
In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompe... more In this paper, we examine the lawfulness of a proposal to provide elective ventilation to incompetent patients who are potential organ donors. Under the current legal framework, this depends on whether the best interests test could be satisfied. It might be argued that, because the Mental Capacity Act 2005 (UK) (and the common law) make it clear that the best interests test is not confined to the patient's clinical interests, but extends to include the individual's own values, wishes and beliefs, the proposal will be in the patient's best interests. We reject this claim. We argue that, as things currently stand, the proposal could not lawfully be justified as a blanket proposition by reference to the best interests test. Accordingly, a modification of the law would be necessary to render the proposal lawful. We conclude with a suggestion about how that could be achieved.
Journal of Bioethical Inquiry, 2011
In this paper I discuss a recent exchange of articles between Hugh McLachlan and John Coggon on t... more In this paper I discuss a recent exchange of articles between Hugh McLachlan and John Coggon on the relationship between omissions, causation and moral responsibility. My aim is to contribute to their debate by isolating a presupposition I believe they both share, and by questioning that presupposition. The presupposition is that, at any given moment, there are countless things that I am omitting to do. This leads them both to give a distorted account of the relationship between causation and moral or (as the case may be) legal responsibility, and, in the case of Coggon, to claim that the law's conception of causation is a fiction based on policy. Once it is seen that this presupposition is faulty, we can attain a more accurate view of the logical relationship between causation and moral responsibility in the case of omissions. This is important because it will enable us, in turn, to understand why the law continues to regard omissions as different, both logically and morally, from acts, and why the law seeks to track that logical and moral difference in the legal distinction it draws between withholding life-sustaining measures and euthanasia.
Cambridge Quarterly of Healthcare Ethics, 2012
Intensive Care Medicine, 2021
We read with interest Vincent and Creteur’s letter regarding the Statement from an International ... more We read with interest Vincent and Creteur’s letter regarding the Statement from an International Collaborative and thank them for the opportunity to clarify certain concepts [1, 2]. Donation after the circulatory determination of death in controlled circumstances (cDCDD) contributes to increasing the availability of organs for transplantation, and also to respect the values and preferences of the dying patient. The aim of our expert panel is to help expand cDCDD across the world, based on practices that are grounded on solid ethical principles. The Statement does not recommend waiting 72 h between the decision to withdraw life-sustaining therapies (WLST) and that of activating the cDCDD process. This relates to the observation period before reaching the decision to WLST, an approach recommended by several intensive care societies to guide professionals in establishing a prognosis and making clinical decisions [3]. Once the decision to WLST has been made, if evolution to brain death is expected to occur within a short period of time, then delaying the WLST may be considered after discussion with the family [4]. This can enable the determination of death using neurologic criteria and activation of the donation after brain death pathway— allowing more organs to be transplanted and better posttransplant outcomes to be achieved. The expert panel of the cDCDD Statement proposes that criteria to determine death by circulatory criteria are based on the permanent cessation of circulation to the brain—which means that circulation to the brain cannot return spontaneously or intentionally after death has been declared. This implies that cessation of the circulation is followed by an observation period to witness and exclude the possibility of auto-resuscitation and that no intervention that restores circulation to the brain is undertaken. A recent study has documented cases of auto-resuscitation up to 4.20 min after asystole following the WLST [5]. As a result, we recommend a minimum observation period of 5 min before death is declared. We agree with Vincent and Creteur that a planned cDCDD that does not proceed because death does not occur within a timeframe that enables successful organ recovery, can cause harm and frustration (“terrible”, in their words). During the WLST, sedation should be titrated to ensure the comfort of the patient and the absence of suffering, without hastening death. This principle applies equally whether organ donation follows or not. When WLST occurs outside the intensive care unit (ICU, usually, the operating theatre) and the patient does not die within such a timeframe, then the patient is returned to the ICU to allow the continuation of endof-life care by the same team that looked after them and their families before they were moved. Relatives would have been made aware of this possibility before WLST. Finally, we all seek the best outcomes for recipients of organs recovered from cDCDD donors. This must be achieved by providing robust professional and ethical guidance, without jeopardizing the trust and support of a society that are essential to the success of deceased donation. We agree with “please, do not waste time”—but “please, avoid undue haste”. *Correspondence: bdominguez@sanidad.gob.es 1 Organización Nacional de Trasplantes, C/Sinesio Delgado 6, pabellón 3, 28029 Madrid, Spain Full author information is available at the end of the article
Intensive Care Medicine, 2021
A decision to withdraw life-sustaining treatment (WLST) is derived by a conclusion that further t... more A decision to withdraw life-sustaining treatment (WLST) is derived by a conclusion that further treatment will not enable a patient to survive or will not produce a functional outcome with acceptable quality of life that the patient and the treating team regard as beneficial. Although many hospitalized patients die under such circumstances, controlled donation after the circulatory determination of death (cDCDD) programs have been developed only in a reduced number of countries. This International Collaborative Statement aims at expanding cDCDD in the world to help countries progress towards self-sufficiency in transplantation and offer more patients the opportunity of organ donation. The Statement addresses three fundamental aspects of the cDCDD pathway. First, it describes the process of determining a prognosis that justifies the WLST, a decision that should be prior to and independent of any consideration of organ donation and in which transplant professionals must not participate. Second, the Statement establishes the permanent cessation of circulation to the brain as the standard to determine death by circulatory criteria. Death may be declared after an elapsed observation period of 5 min without circulation to the brain, which confirms that the absence of circulation to the brain is permanent. Finally, the Statement highlights the value of perfusion repair for increasing the success of cDCDD organ transplantation. cDCDD protocols may utilize either in situ or ex situ perfusion consistent with the practice of each country. Methods to accomplish the in situ normothermic reperfusion of organs must preclude the restoration of brain perfusion to not invalidate the determination of death.
Journal of Critical Care, 2020
End-of-life (EOL) care has become an integral part of intensive care medicine and includes the ex... more End-of-life (EOL) care has become an integral part of intensive care medicine and includes the exploration of possibilities for deceased organ and tissue donation. Donation physicians are specialist doctors with expertise in EOL processes encompassing organ and tissue donation, who contribute significantly to improvements in organ and tissue donation services in many countries around the world. Donation physicians are usually also intensive care physicians, and thus they may be faced with the dual obligation of caring for dying patients and their families in the intensive care unit (ICU), whilst at the same time ensuring organ and tissue donation is considered according to best practice. This dual obligation poses specific ethical challenges that need to be carefully understood by clinicians, institutions and health care networks. These obligations are complementary and provide a unique skillset to care for dying patients and their families in the ICU. In this paper we review current controversies around EOL care in the ICU, including the use of palliative analgesia and sedation specifically with regards to withdrawal of cardiorespiratory support, the usefulness of the so-called doctrine of double effect to guide ethical decision-making, and the management of potential or perceived conflicts of interest in the context of dual professional roles.
Journal of Critical Care, 2020
CRITCON-Pandemic Levels with an associated Operational Responsibility Matrix were recently publis... more CRITCON-Pandemic Levels with an associated Operational Responsibility Matrix were recently published by the Intensive Care Society as a modification to Winter Flu CRITCON levels, to better account for differences between a winter flu surge in criticalcare activity and the capacity challenges of the COVID-19 pandemic1. In this paper we propose an expansion and explanation of the Operational Matrix to suggest a stepwise ethical approach to clinician responsibility. We propose and outline the main ethical riskscreated at each level and discuss how those risks can be mitigated through a balanced application of the predominant ethical principle which in turn provides practical guidance to clinician responsibility. We thus seek to specify the ethical and legal principles that should be used in applying the Operational Matrix, and what the practical effects could be.
Current opinion in organ transplantation, 2018
The recently developed donation after circulatory death (DCD) heart transplant technique, pioneer... more The recently developed donation after circulatory death (DCD) heart transplant technique, pioneered by Papworth Hospital in the UK, involves the use of extracorporeal perfusion technologies to restart the donor heart in situ and thereby restore the donor's own circulation, after first isolating the donor's cerebral circulation. By restoring the circulation in the deceased donor, even if the cerebral circulation is excluded, the Papworth technique challenges the acceptability of death determination in DCD. This study uses as its exemplar case the Papworth DCD heart technique to review and make wider comment about death determination in DCD. We seek to answer three challenges to ethical propriety raised by the Papworth technique: death determination using the permanence standard (common to all DCD practice); restoration of heart contractility and circulation in the body; and active prevention of the restoration of brain circulation by use of a cross-clamp to isolate the cerebr...
Bioethics, 2016
The other way the definition has been held to be satisfied is by the irreversible loss of all bra... more The other way the definition has been held to be satisfied is by the irreversible loss of all brain function. There is considerable debate about this alternative criterion that we shall not enter into here. We focus exclusively on the circulatory-respiratory criterion. 3 The dead donor rule has a number of different expressions, but Franklin Miller and Robert Truog accept the common reading that donors must be determined to be dead before organs can be procured. Miller and Truog. op.cit. note 1, p. 113. 4 A. R. Joffe et al. Donation after cardiocirculatory death: a call for a moratorium pending full public disclosure and fully informed consent.
The conversation, 2014
There is a clear legal distinction in Australia, the United Kingdom, and the United States betwee... more There is a clear legal distinction in Australia, the United Kingdom, and the United States between withdrawing life-prolonging treatment – such as ventilation for a person who can’t breathe unaided, or artificial nutrition and hydration for those who can’t eat and drink – and euthanasia, a lethal injection or potion. But philosophers and legal academics disagree. The almost unanimous view is that when doctors withdraw life-prolonging treatment from a patient they are killing her rather than allowing her to die from her underlying condition. On this basis, they argue the law is incoherent because it prohibits killing by lethal injection or lethal potion, while permitting killing by withdrawing life-prolonging treatment from those dependent on it. I disagree; withdrawing life-prolonging treatment is not the same as killing.