Withholding and Withdrawing Life-Sustaining Medical Treatment

In White, Benjamin P., McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia [2nd ed.]. Thomson Reuters, Pyrmont, NSW, pp. 543-592, 2014

Posted: 19 Jul 2016

See all articles by Ben White

Ben White

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Shih-Ning Then

Queensland University of Technology - Faculty of Law

Multiple version iconThere are 3 versions of this paper

Date Written: 2014

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

Suggested Citation

White, Ben and Willmott, Lindy and Then, Shih-Ning, Withholding and Withdrawing Life-Sustaining Medical Treatment (2014). In White, Benjamin P., McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia [2nd ed.]. Thomson Reuters, Pyrmont, NSW, pp. 543-592, 2014. Available at SSRN: https://ssrn.com/abstract=2808866

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/

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/

Shih-Ning Then

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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