When Is It in a Child’s Best Interests to Withhold or Withdraw Life-Sustaining Treatment? An Evolving Australian Jurisprudence

Journal of Law and Medicine 25(4), pp 944-972, 2018.

30 Pages Posted: 31 Aug 2018

See all articles by Lindy Willmott

Lindy Willmott

Queensland University of Technology - Faculty of Law

Ben White

Queensland University of Technology - Faculty of Law

Neera Bhatia

Deakin University, Geelong, Australia - Deakin Law School

Date Written: 2018

Abstract

Decisions about whether to withdraw or withhold life-sustaining medical treatment from children give rise to complex and value-laden judgments. While recourse to the courts is uncommon, judicial decisions provide an important source of guidance for the children (where they can participate), families and health and medical professionals involved in these decisions. Yet, there has been remarkably little consideration of the Australian jurisprudence on this issue. This article addresses that gap by undertaking the first comprehensive analysis of all publicly available Australian cases that consider whether or not it is in a child’s best interests to receive life-sustaining treatment. A total of 25 cases were located and the judicial consideration of best interests was thematically analysed. Key considerations (to varying degrees) when assessing best interests included the likelihood of treatment curing or improving the child’s health, medical views about diagnosis, prognosis and treatment and the child’s and parents’ views and wishes. The article concludes that the law requires greater certainty and transparency in decision-making. Given the significance of these cases, judgments should describe the factors that the court considers relevant and important, and those that are less influential, as well as the weight ascribed to those various factors and the reasoning that underpins an assessment that treatment is or is not in a child’s best interests.

Suggested Citation

Willmott, Lindy and White, Ben and Bhatia, Neera, When Is It in a Child’s Best Interests to Withhold or Withdraw Life-Sustaining Treatment? An Evolving Australian Jurisprudence (2018). Journal of Law and Medicine 25(4), pp 944-972, 2018.. Available at SSRN: https://ssrn.com/abstract=3237203

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/

Neera Bhatia

Deakin University, Geelong, Australia - Deakin Law School ( email )

221 Burwood Highway
Burwood
Melbourne, Victoria 3125
Australia

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