What powers does the Supreme Court have to withhold or withdraw life-sustaining treatment?
The Supreme Courts of each State and Territory also have power to make decisions on behalf of people without capacity. This is known as the Court’s parens patriae jurisdiction. It gives the Supreme Court power to protect the life and bodily integrity of a person who is unable (due to their incapacity) to protect him or herself.
The Supreme Court’s power to decide these matters exists alongside the guardianship legislation in each State and Territory. However, the Supreme Court exercises its power cautiously, and will only become involved in a case where the circumstances warrant judicial intervention e.g. the application is extremely urgent or the guardianship legislation is not appropriate to determine the case.
The Supreme Court has power to:
- authorise that medical treatment, including life-sustaining treatment, be provided, withheld or withdrawn; and/or
- provide consent to treatment on behalf of a person without capacity.
The Court will decide whether, in all the circumstances, the treatment is in the person's best interests. For an example of this read Cairns and Hinterland Hospital and Health Service v JT.
Many guardianship cases heard by the Supreme Court involve end of life decisions, particularly where health professionals wish to withhold or withdraw life-sustaining treatment that a person's family or friends want continued. In some cases the Supreme Court may decline to interfere with health professionals' decisions.