'Best Interests' and Withholding and Withdrawing Life-Sustaining Treatment from an Adult Who Lacks Capacity in the Parens Patriae Jurisdiction

Journal of Law and Medicine, 21(4), pp. 920-941, 2014

23 Pages Posted: 10 Jul 2016

See all articles by Lindy Willmott

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Malcolm Smith

Queensland University of Technology - Faculty of Law

Date Written: 2014

Abstract

Disputes about withholding and withdrawing life-sustaining treatment are increasingly coming before Australian Supreme Courts. Such cases are generally heard in the parens patriae jurisdiction where the test applied is what is in the patient’s “best interests”. However, the application of the “best interests” test, and its meaning, remains unclear in this context. To shed light on this emerging body of jurisprudence, this article analyses the Australian superior court decisions that consider an adult’s best interests in the context of decisions about life-sustaining treatment. We identify a number of themes from the current body of cases and consider how these themes may guide future decision-making. After then considering the law in the United Kingdom, we suggest an approach for assessing best interests that could be adopted by Australian Supreme Courts. We argue that the suggested approach will lead to a more structured and systematic decision-making process that better promotes the best interests of the patient.

Keywords: End of life decision-making, Best interests, Parens patriae, Withholding and withdrawal of life-sustaining medical treatment, Health law, Medical law

Suggested Citation

Willmott, Lindy and White, Ben and Smith, Malcolm, 'Best Interests' and Withholding and Withdrawing Life-Sustaining Treatment from an Adult Who Lacks Capacity in the Parens Patriae Jurisdiction (2014). Journal of Law and Medicine, 21(4), pp. 920-941, 2014. Available at SSRN: https://ssrn.com/abstract=2806747

Lindy Willmott

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/willmott/

Ben White (Contact Author)

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

HOME PAGE: http://staff.qut.edu.au/staff/whiteb/

Malcolm Smith

Queensland University of Technology - Faculty of Law ( email )

Level 4, C Block Gardens Point
2 George St
Brisbane, QLD 4000
Australia

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