Cutting the Gordian Knot of Futility: A Case for Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment

New Zealand Universities Law Review, 26(1), pp. 24-59, 2014

Posted: 10 Jul 2016

See all articles by Jocelyn Downie

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2014

Abstract

In this paper, we propose law reform with respect to the unilateral withholding or withdrawal of potentially life-sustaining treatment in Australia and New Zealand. That is, where a doctor withholds or withdraws potentially life-sustaining treatment without consent from a patient or a patient’s substitute decision-maker (where the patient lacks capacity), or authorisation from a court or tribunal, or by operation of a statute or justifiable government or institutional policy. Our proposal is grounded in the core values that do (or should) underpin a regulatory framework on an issue such as this; these values are drawn from existing commitments made by Australia and New Zealand through legislation, the common law, and conventions and treaties. It is also grounded in a critical review of the law on unilateral withholding and withdrawal as well as the legal context within which this issue sits in Australasia. We argue that the current law is inconsistent with the core values and develop a proposal for a legal response to this issue that more closely aligns with the core values it is supposed to serve.

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

Suggested Citation

Downie, Jocelyn and Willmott, Lindy and White, Ben, Cutting the Gordian Knot of Futility: A Case for Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment (2014). New Zealand Universities Law Review, 26(1), pp. 24-59, 2014. Available at SSRN: https://ssrn.com/abstract=2806748

Jocelyn Downie

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9
Canada

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/

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