Withholding and Withdrawing Treatment in South Australia When Patients, Parents or Guardians Insist that Treatment Must Be Continued

19 Pages Posted: 31 Aug 2005

See all articles by Loane Skene

Loane Skene

University of Melbourne - Law School

Abstract

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17(2) appears, when read literally, to prevent doctors withholding or withdrawing treatment if patients or their representatives object, and to preclude court review. Patients would then have an unprecedented legal right to have medical treatment continued, however poor their condition and prognosis. One may question whether the Parliament intended to make such a radical change to the common law. In many reported cases, English judges have authorized withholding of futile or burdensome treatment, despite family objections and a Victorian court has recently sanctioned even the withdrawal of life-sustaining treatment. The author argues that s 17(2) is ambiguous and should be interpreted in a more limited way; but a court might not do so.

South Australian health care providers who withhold treatment despite objections probably face little legal risk if there is an unanimous, carefully considered, fully documented medical opinion, fully involving the family. However, for legal protection, a hospital could apply to the Family Court of Australia if the patient is a child (the Court would probably have jurisdiction despite the High Court's recent limitation of the Family Court's welfare jurisdiction, and could override the state Act). For adult patients, the Supreme Court or the Guardianship Board would be the only options and, if the state Act is literally interpreted, they would seem to have no power to intervene. For that reason, the Act should be amended to allow court review if relatives object to treatment decisions.

Keywords: Withholding, withdrawing, treatment, objection, South Australia

JEL Classification: K10

Suggested Citation

Skene, Loane, Withholding and Withdrawing Treatment in South Australia When Patients, Parents or Guardians Insist that Treatment Must Be Continued. Adelaide Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=772406

Loane Skene (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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