In cases of serious illness or where there has been an extremely traumatic injury it may become apparent to medical staff that further active medical treatment aimed at curing the patient is likely to be futile.

The medical staff in these circumstances may want to withdraw active treatment and instead commence palliative care (discussed below). This decision can be associated with legal problems, the determination of which is dependent upon the age and legal competence of the patient and whether there is an Advance Care Directive in place or whether a friend of family member has been nominated as a substituted decision maker.

Circumstances where active medical treatment may be withdrawn in NSW.

• A legally competent adult, who understands the consequences and implications of medical decision making can choose to refuse treatment. Even if that refusal means that he or she will die. This is true even if he or she does not have a terminal disease and the treatment would save his or her life. To treat such a patient would be an assault.
• An adult who is unable to communicate his or her wishes but who has a valid Advance Directive in place can refuse medical treatment via the Advance Care Directive, even if that refusal means that he or she will die. This is true even if he or she does not have a terminal disease and the treatment would save his or her life. To treat such a patient would be an assault.
• A child or a legally incompetent adult (without an Advance Care Directive) can only have his or her treatment withdrawn if that is in his or her best interests. The family and the medical team will usually decide this together. Problems can arise where there is disagreement between the family and medical team. In these circumstances assistance may be sought from the Supreme Court. The Supreme Court has the power under it is parens patriae jurisdiction to determine whether treatment should be withdrawn from a child or legally incompetent person.

Case Examples:

1. The case of Hunter and New England Area Health Service v A (2009) [1] highlighted that the common law principle of self-determinism recognises that competent people can refuse treatment even where that refusal leads to their death. Mr A was unconscious and critically ill. He required kidney dialysis to stay alive. Mr A was a Jehovah’s Witness and had executed an Advance Care Directive which indicated that he did not consent to kidney dialysis. It was held that that he should not be given kidney dialysis despite the fact, that this, would hasten his death. His Honour, McDougall J said;
   “It is in general clear that, whenever there is a conflict between a capable adult’s exercise of the right of self-determination and the State’s interest in preserving life, the right of the individual must prevail.”
2. The case of Re Baby D [2] involved a decision about whether an intubation tube could be removed. The parents and the hospital team agreed that that the tube should be removed. The decision was referred to the court for review as a safeguard. His Honour, Young J confirmed that this was the kind of decision that the parents and the medical team could decide without the need for court review. Young J foreshadowed circumstances where authorisation by the court would be necessary, namely where there is conflict over what is in the best interests of the child.
3. In Mohammed’s case [3] which involved a severely disabled child, the medical team wanted to withdraw treatment and the parents wanted active treatment to be pursued including mechanical ventilation if necessary. His Honour, Garling J applied the best interests test and in doing so, moved away from a quality of life assessment and focused on the advantages and disadvantages of the treatment. In that case the treatment was painful and would not prevent the child’s death.

In conclusion the legal implications associated with withdrawing medical treatment can be complex and difficult. We have expertise in this area and encourage you to contact us and seek advice.

1.  At 17, 74 NSWLR 88
2. (No2) [2011] Fam CA 176
3. TS & DS v Sydney Children’s Hospital Network [2012] NSWSC 1609