14 Table 4 – List of agencies that receive health care complaints 15 Is my GP or specialist obliged to tell me that I have dementia? Statutory advance directives/ right to refuse treatment in Australia. Voluntary and informed decisions. ---121234 ---:00:15:30:45:---ampm, Parenting Orders, Step Parents and other concerned adults, End of life and the law – Myths and Misconceptions, So you want to get divorced! The case of Messiha v South East Health below is an example. It is interesting that the abortion legislation in Victoria makes it obligatory for a doctor to inform and refer a pregnant woman who requests an abortion if they have a conscientious objection to abortion. Lindy Willmott, Ben White and Jocelyn Downie, ’Withholding and withdrawal of ‘futile’ life-sustaining treatment: Unilateral medical decision-making in Australia and New Zealand’ (2013) 20(4) Journal of Law and Medicine 907. For an example of this read Cairns and Hinterland Hospital and Health Service v JT. Lindy Willmott et al, ‘Reasons doctors provide futile treatment at the end of life: A qualitative study’ (2016) 42 Journal of Medical Ethics 496. Messiha’s family applied to the Court to prevent the withdrawal of treatment, but were unsuccessful. Ben White et al, ‘The role of law in decisions to withhold and withdraw life-sustaining treatment from adults who lack capacity: A cross-sectional study’ (2017) 43(5) Journal of Medical Ethics 327. On that basis the Court found that withdrawal of treatment would be consistent with good medical practice. At a fundamental level, you may give permission to someone to touch your body, or refuse it. Find out more at Queensland Treatment Decisions. Someone who enters a hospital voluntarily and shows no imminent risk of danger to self or others may express the right to refuse treatment by stating he or she wants to leave the hospital. Find out more at State and Territory Treatment Decisions. There are two major questions that arise in substitute decision-making: When a person still has capacity they can choose who their substitute decision-maker will be, and specify this in an Advance Care Directive or power of attorney, for example. Hospitals often have complaints processes to address disagreements, for example, about the benefits of proposed treatment. Andrew McGee, ‘Me and my body: The relevance of the difference for the distinction between withdrawing life support and euthanasia’ (2011) 39(4) Journal of Law, Medicine and Ethics 671. The Court concluded that there can be situations where providing life-sustaining treatment will no longer be in a person's best interests. The requirements for consent to treatment are contained in the Consent to Medical Treatment and Palliative Care Act 1995 (SA). One is ‘physiological futility’, where treatment will not provide any physiological benefit to the person. In those circumstances, both guardianship legislation and the common law in each Australian State and Territory provide ways in which medical treatment can lawfully proceed or, in some cases, be withheld or withdrawn. Lindy Willmott, Ben White and Donna Cooper, ‘Interveners or interferers: Intervention in decisions to withhold and withdraw life-sustaining medical treatment’ (2005) 27(4) The Sydney Law Review 597. This webpage will tell you about this area of law. JT’s condition had not improved in the previous 12 months. Some States and Territories also have legislation which clarifies this. This was not the case, and T needed a blood transfusion to save her life. At the time of the Court hearing, he was still in hospital, unconscious, and being kept alive through a feeding tube. In a South Australian case called H Ltd v J [2010] SASC 176, a person decided to refuse medical treatment. If consent is not established, there may be legal consequences for health professionals. Clinicians decide whether or not treatment is futile on a case-by-case basis. Ben White et al, ‘Comparing doctors’ legal compliance across three Australian states for decisions whether to withhold or withdraw life-sustaining medical treatment: does different law lead to different decisions?’ (2017) 16 BMC Palliative Care 63. Bland was a 17 year old man who was injured in the Hillsborough disaster when he was crushed in a football stadium. Purpose As a result he could not see, hear or feel anything, could not communicate, and did not have any cognitive function. The most concerning grounds for refusal to treat in practice is where the refusal is because of the doctor’s own beliefs. So you have a family trust – What happens when you die? If you refuse a treatment, your decision must be respected, even if is thought that refusing treatment would result in your death or the death of your unborn child. 16 4. You may choose whether or not to undergo treatment. Refusal of Medical Treatment Refusal of Medical Treatment. The guardianship legislation in each State and Territory outlines principles and criteria that substitute decision-makers must take into account when making decisions. This means they can consent to medical treatment or refuse it. All have made reforms to offer at least some protection of the right of a competent person to refuse psychiatric treatment, though in the Australian Capital Territory, New South Wales and Victoria, this right is not protected to the same degree as it is with respect to general medical treatment. Andrew McGee, ‘Does withdrawing life-sustaining treatment cause death or allow the patient to die?’ (2014) 22(1) Medical Law Review 26. 10.44 At common law, all competent adults can consent to and refuse medical treatment. [13] The Australian Medical Association (AMA) similarly states that medical treatment may not be warranted where such treatment ‘will not offer a reasonable hope of benefit or will impose an unacceptable burden on the patient.’ The Court will decide whether, in all the circumstances, the treatment is in the person's best interests. This includes the right to consent to or refuse medical treatment. Donnelly J said that the right to refuse treatment was an inherent component of the supremacy of the patient's right over his own body not premised on the risks of refusal. Courts may also consider the process undertaken by the clinician in deciding that the treatment is futile or non-beneficial. An adult who has capacity is said to be 'competent'. A health professional has a duty to warn… JT was 37 years old when he suffered a severe hypoxic injury from a cardiac arrest and was resuscitated. Ben White et al, ‘Withholding and withdrawing potentially life-sustaining treatment: Who should decide?’ in Freckelton, Ian and Petersen, Kerry (eds), Tensions and Traumas in Health Law (Federation Press, 2017) 454. So long as an adult has capacity there are few restrictions on the right to refuse medical treatment. In Australia parents and teenagers both have rights to consent to a teenage child’s treatment. Legislation in South Australia, Victoria, the Northern Territoryand the Australian Capital Territory confirms, to varying extents,the legal validity of an adult patient's anticipatory refusal ofmedical treatment. Ben White, Lindy Willmott and Shih-Ning Then, ‘Adults who lack capacity: Substitute decision-making’ in Ben White, Fiona McDonald, & Lindy Willmott (eds), Health Law in Australia (Thomson Reuters, 3rd ed, 2018) 207. Treatment that is futile cannot be in a patient’s best interests, and doctors do not have a duty to provide that treatment. In some cases the Supreme Court may decline to interfere with health professionals' decisions. Jamie Bryant et al, 'Knowledge and confidence of junior medical doctors in discussing and documenting resuscitation plans: A cross-sectional study' (2020) Internal Medicine Journal. The medical evidence was unanimous that there was no prospect of improvement and that if treatment were withdrawn he would die within two to five days. This is known as the Court’s parens patriae jurisdiction. Withholding and withdrawing life-sustaining treatment for adults, and guardianship law, Capacity and consent to medical treatment, United Nations Convention on the Rights of Persons with Disabilities. Your rights. Find out more at Queensland Treatment Decisions. See for example Messiha v South East Health and Northridge v Central Sydney Area Health Service. However, the law in Queensland is different. Last updated 4 July 2016 Before a person can consent to or refuse particular medical treatment, they need to have a reasonable understanding of what that treatment involves. Office of the Public Advocate South Australia. His brain was deprived of oxygen which resulted in a permanent, catastrophic injury. Under the New Zealand criminal law there was a duty to provide the ‘necessaries of life’ except if there was a lawful excuse not to do so. H Ltd asked the Court whether it would be lawful to comply with J’s decision. Generally, when a person does not have capacity, it will also be lawful for such treatment to be withheld or withdrawn. This case illustrates that a person's health professionals are able to withhold or withdraw treatment that does not benefit the person, or is not in his or her best interests. For example, in Victoria, the Medical Treatment Planning and Decisions Act 2016 (Vic) section 8 states that a clinician cannot be compelled to administer futile or non-beneficial treatment, and that nothing authorises the making of an Advance Care Directive or a decision (by a medical treatment decision-maker) purporting to compel a clinician to provide such treatment. This sort of decision involves subjective assessments, where clinicians might consider treatment to be futile but a person or their family may disagree. In deciding what is in a person's best interests, the courts will consider the extent to which the treatment is burdensome or intrusive, or whether it would be causing the person unwarranted pain or indignity. Guardianship laws have been enacted to assist decision making for people who have lost, or never had, capacity to make competent decisions. Yes, withholding and withdrawing life-sustaining treatment is legal in Australia so long as the law is complied with. Avant arranges Avant Business Insurance as agent of the insurer Allianz Australia Insurance Limited ABN 15 000 122 850, AFSL 234 708 (Allianz) and may receive a commission on each policy arranged. Some Australian cases have also considered the issue of best interests. It did not agree with the family that Messiha’s best interests required treatment to continue. However, as a matter of good medical practice, a person or their substitute decision-maker should always be involved in treatment decision-making, including when clinician’s think treatment is futile. The rights of patients receiving health care from hospitals, doctors and other health care services in South Australia are to be found in both legislation and in the common law. Lindy Willmott et al, ‘Futility and the law: Knowledge, practice and attitudes of doctors in end of life care’ (2016) 16(1) QUT Law Review 54. J was a 74 year old woman with post-polio syndrome and Type 1 diabetes. There is a general presumption that an adult is competent to make medical decisions. The right to refuse treatment extends to all medical treatment including but not limited to ventilation, cardio-pulmonary resuscitation (CPR), dialysis, antibiotics and artificial feeding and hydration.
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