Withholding and Withdrawing Life-Sustaining Medical Treatment

Abstract

At common law, a competent adult can refuse life-sustaining medical treatment, either contemporaneously or through an advance directive which will operate at a later time when the adult’s capacity is lost.

Legislation in most Australian jurisdictions also provides for a competent adult to complete an advance directive that refuses life-sustaining medical treatment.

At common law, a court exercising its parens patriae jurisdiction can consent to, or authorise, the withdrawal or withholding of life-sustaining medical treatment from an adult or child who lacks capacity if that is in the best interests of the person. A court may also declare that the withholding or withdrawal of treatment is lawful.

Guardianship legislation in all jurisdictions allows a substitute decision-maker, in an appropriate case, to refuse life-sustaining medical treatment for an adult who lacks capacity.

In terms of children, a parent may refuse life-sustaining medical treatment for his or her child if it is in the child’s best interests.

While a refusal of life-sustaining medical treatment by a competent child may be valid, this decision can be overturned by a court.

At common law and generally under guardianship statutes, demand for futile treatment need not be complied with by doctors.

Keywords: Withholding and withdrawing life-sustaining treatment, End of life decision-making, Adult guardianship, Health law, Medical law