Withholding and Withdrawing Life-Sustaining Medical Treatment

White, Ben, McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia (Third Edition). Thomson Reuters, Pyrmont, New South Wales, pp. 571-623, Forthcoming

Posted: 27 Aug 2018

See all articles by Ben White

Ben White

Queensland University of Technology - Faculty of Law

Shih-Ning Then

Queensland University of Technology - Faculty of Law

Lindy Willmott

Queensland University of Technology - Faculty of Law

Multiple version iconThere are 3 versions of this paper

Date Written: August 3, 2018

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.

Suggested Citation

White, Ben and Then, Shih-Ning and Willmott, Lindy, Withholding and Withdrawing Life-Sustaining Medical Treatment (August 3, 2018). White, Ben, McDonald, Fiona, & Willmott, Lindy (Eds.) Health Law in Australia (Third Edition). Thomson Reuters, Pyrmont, New South Wales, pp. 571-623, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3233397

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/

Shih-Ning Then

Queensland University of Technology - Faculty of Law ( email )

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

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/

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