Medical Law

1 COMPETENT PATIENTS AND END-OF-LIFE DECISIONS

2 INCOMPETENT PATIENTS AND END-OF-LIFE DECISIONS
2.1 COURTS AND END-OF-LIFE DECISIONS
The parens patriae jurisdiction permits the Supreme Court in each state and territory to withhold or
withdraw treatment. Alternatively a guardian may be appointed, and given power to make such
decisions.
Case: Messiha v South East Health [2004]
2.2 GUARDIANSHIP AND END-OF-LIFE DECISIONS
Guardians authorities do not have the wide parens patriae powers of the superior courts.
In New South Wales, there is conflicting precedent over whether substitute decision makers under the
Guardianship Act 1987 have power to consent to the withdrawal of treatment. However, in other
jurisdictions guardians appointed by courts a guardianship authorities have the power to consent to
withdrawal of life-sustaining treatments.
Victoria:
1. Guardianship and Administration Act 1986
a. (s 42H) Guardians may refuse consent to treatment when it is not in the patients best
interests
b. (s 5B) Guardians may employ refusal of treatment certificate when
i. Medical treatment would cause unreasonable distress to patient; or
ii. There are reasonable grounds for believing that the patient, if competent, and
after giving serious consideration to his or her health and wellbeing, would
consider that the medical treatment is unwarranted.
2.3 ENDURING POWERS OF ATTORNEY AND END-OF-LIFE DECISIONS
In all jurisdictions with enduring attorneys, except New South Wales, an enduring attorney may
consent to withholding or withdrawing of life-sustaining treatments.
Victoria:
1. Refusal of treatment certificate can be employed under the Medical Treatment Act 1988.
2.4 PERSONS RESPONSIBLE AN END-OF-LIFE DECISIONS
Persons responsible are substitute decision-makers recognised in in all jurisdictions except ACT and
NT.
Victoria:
1. Guardianship and Administration Act 1986
a. (s 42L) Medical practitioner may provide treatment over person responsibles
objections if practitioner believes proposed treatment is in patients best interests.
Medical Law
Medical practitioner must send written notice to person responsible informing them
of the decision and the right to appeal to the VCAT.
2.5 HEALTH PROFESSIONALS AND END-OF-LIFE DECISIONS
The common law recognises power of health professionals to make treatment decisions for
incompetent patients under doctrine of necessity, and most jurisdictions have recognised power in
legislation.
Health professionals are not bound to provide futile treatments as such is not in the patients best
interests. However, health professionals need to act in the best interests of the patients.