This webpage explores the law, including guardianship law, in Australia relating to withholding and withdrawing life-sustaining treatment from adults who have capacity, and those who do not. Visit our webpage on children and end of life decision-making for information about medical treatment decisions for children under 18 years of age.
Legality of withholding and withdrawing life-sustaining treatment
Is withholding and withdrawing life-sustaining treatment legal in Australia?
Yes, withholding and withdrawing life-sustaining treatment is legal in Australia so long as the law is complied with. This webpage will tell you about this area of law.
Withholding and withdrawing life-sustaining treatment from adults with capacity
Can an adult with capacity refuse life-sustaining treatment?
Yes. A fundamental principle of health law is an adult’s right to decide what is or is not done to their bodies. This includes the right to consent to or refuse medical treatment. An adult who has capacity can choose to refuse medical treatment even if failure to receive treatment will result in death. An adult can refuse medical treatment on any grounds including for example, religious reasons or personal beliefs about what is an acceptable quality of life. So long as an adult has capacity there are few restrictions on the right to refuse medical treatment. However, for the refusal to be followed it must relate to the medical situation that has arisen (the case of Re T (Adult: Refusal of Treatment) considered this issue).
Must health professionals follow a decision to withhold or withdraw treatment made by a patient with capacity?
Yes. A person’s right to bodily integrity cannot be violated. A health professional who provides treatment despite an adult with capacity refusing it may be liable in criminal or civil law.
Withholding and withdrawing treatment from adults who lack capacity
Can life-sustaining treatment be refused for adults who lack capacity?
In many situations at the end of life a person may not have the capacity to make decisions about their health care and treatment, including whether or not to withdraw or withhold treatment, and are therefore unable to provide consent. 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State and Territory provide ways in which medical treatment can lawfully proceed (or in some cases, be withheld or withdrawn).
Withholding and withdrawing futile or non-beneficial treatment
What is futile or non-beneficial treatment?
‘Futile’ treatment is not formally defined in law, and there is debate in the medical and legal professions about what ‘futile’ or ‘non-beneficial’ treatment means. The term is commonly used to refer to treatment which:
- is not in the person’s best interests,
- cannot achieve its purpose, or
- is not clinically indicated.
It is sometimes referred to as ‘non-beneficial treatment’ or ‘potentially inappropriate treatment’.
Clinicians decide whether or not treatment is futile on a case-by-case basis. Factors that will be considered include the person’s diagnosis and prognosis, the person’s treatment goals and whether these can be achieved, treatment alternatives, and risks and benefits of these alternatives.
Examples of futile or non-beneficial treatment
There are different categories of futile or non-beneficial treatment.
One is ‘physiological futility’, where treatment will not provide any physiological benefit to the person. This might occur where a person is imminently dying and so unwell that it is not possible for cardiopulmonary resuscitation to work. Cases of physiological futility are rare and have not been before Australian courts.
More common is where treatment might possibly work but clinicians believe it is not worth providing. This decision might be based on treatment being burdensome with a low prospect of success or bringing only a limited improvement in quality of life. This sort of decision involves subjective assessments, where clinicians might consider treatment to be futile but a person or their family may disagree. It has been these sorts of cases – involving more subjective assessments of futility – that have come before the courts. The case of Messiha v South East Health below is an example.
Who decides whether treatment is futile or non-beneficial?
This decision is generally made by the person’s treating clinical or medical team professional on a case-by case basis.
When deciding whether treatment is futile or non-beneficial, it is important for clinicians to discuss this with the person (if they have capacity) or the person’s substitute decision-maker (if the person lacks capacity) in order to:
- find out the substitute decision-maker’s understanding of the person’s wishes (or the person’s wishes if they have capacity);
- communicate the risks and benefits of continued treatment;
- explain any reasons why the treatment is considered futile; and
- come to a shared view about the options.
If there is a dispute e.g. a substitute decision-maker disagrees that treatment is futile or non-beneficial, dispute resolution should be initiated within the hospital or health service. If the dispute cannot be resolved, a Supreme Court or tribunal may decide whether treatment should be provided.
When is it lawful to withhold or withdraw futile or non-beneficial treatment?
When a person has capacity, a clinician may withhold or withdraw treatment they consider is futile or non-beneficial.
Generally, when a person does not have capacity, it will also be lawful for such treatment to be withheld or withdrawn. However, the law in Queensland is different. For further information, visit the Queensland Stopping Treatment webpage.
For further information about withholding and withdrawing treatment, visit the State and Territory Stopping Treatment pages.
Can a person or their substitute decision-maker demand treatment be given, even if a clinician believes that the treatment would be futile or non-beneficial?
No. Under the common law, a person with capacity cannot demand treatment be given to them, and clinicians have no obligation to provide treatment that is futile or non-beneficial.
This is also the case when a person lacks capacity. An Advance Care Directive cannot require that futile treatment be given, and a person’s substitute decision-maker cannot demand such treatment. However, the law in Queensland is different. For further information, visit the Queensland Stopping Treatment webpage.
Some States and Territories also have legislation which clarifies this. 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.
Is consent from a person or their substitute decision-maker required before futile or non-beneficial treatment can be withheld or withdrawn?
A clinician does not need to obtain consent from a person or a substitute decision-maker to withhold or withdraw futile or non-beneficial treatment. 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 law in Queensland is different when a person lacks capacity. For further information, visit the Queensland Stopping Treatment webpage.
What if a person or their substitute decision-maker disagrees with a clinician’s decision that treatment is futile or non-beneficial?
If the person, their family or substitute decision-maker, or another clinician disagrees with a clinician’s view that treatment is futile or non-beneficial, they can challenge it. This may involve seeking a second opinion from an independent clinician or health service. Hospitals often have complaints processes to address disagreements, for example, about the benefits of proposed treatment. In some cases, the Supreme Court or a tribunal may be asked to decide if treatment is futile.
How have Australian courts considered futile treatment?
In rare cases, disputes about whether or not treatment should be provided have been considered by Supreme Courts in Australia. The courts have decided based on the person’s ‘best interests’ and have considered similar factors to clinicians including:
- medical evidence regarding the person’s diagnosis, prognosis and treatment options;
- whether the requested treatment is overly burdensome (so that the burdens of treatment outweigh any possible benefits);
- views and wishes of the person about treatment (and, to a lesser extent, views of the person’s family); and
- quality of life of the person if they receive treatment (which the courts have considered particularly when the person has significant cognitive impairment).
The courts have also stated that the interests of others (including organisations such as the wider health system) and resources are not relevant to a best interests assessment.
Courts may also consider the process undertaken by the clinician in deciding that the treatment is futile or non-beneficial. This would include whether they consulted with other clinicians, acted in accordance with relevant clinical guidelines, and engaged with the person or their substitute decision-maker. In most cases, the courts have deferred to clinicians’ decisions about treatment, even when the person’s family has strongly opposed them.
What is guardianship law?
Guardianship laws exist in each Australian State and Territory, and generally apply to adults only (people who are aged 18 years and over). These laws provide a ‘substitute decision-making’ framework, where another person (such as a spouse, family member or friend) or body (such as the Public Guardian or a court or tribunal) can consent to or refuse medical treatment, and make decisions for a person who has lost capacity. Guardianship laws are often complex and significant differences exist between each State and Territory.
In addition to guardianship laws, there are two other ways in which consent to medical treatment can be given for an adult who lacks capacity:
When does the guardianship law apply?
Guardianship law will apply when a person loses the capacity to make decisions about their own health care and medical treatment. There are four major types of conditions which can cause a person to lose capacity:
- intellectual disability;
- acquired brain injury; and
- mental illness.
In some cases, a person may have more than one of these conditions.
Guardianship law and substitute decision-making can occur both at the end of life (for example, a person suffers a life-threatening brain injury in a car accident and has lost capacity), or when a person still has many years to live (for example, people born with intellectual disability, or who are living with a chronic mental illness).
What is substitute decision-making?
Substitute decision-making is the process whereby one person, a substitute decision-maker, makes decisions, generally about health care, medical treatment, or personal affairs, for another person who lacks the capacity to make those decisions. It involves the substitute decision-maker ‘standing in the shoes’ of the person, to try to make the decision the person would have made if they had the capacity to do so themselves. Substitute decision-makers are often required for a person approaching the end of life who has lost capacity to make decisions about their health care and treatment.
There are two major questions that arise in substitute decision-making:
- Who should be the substitute decision-maker?
- How should a substitute decision be made?
Who can be a substitute decision-maker?
When a person still has capacity they can choose who their substitute decision-maker will be, and specify this in an Advance Directive or power of attorney, for example.
However, if the person has impaired capacity and no substitute decision-maker has been appointed, the guardianship legislation gives decision-making powers to the people who are closest to the person i.e. the person’s family, carer or friends. Who can be a substitute decision-maker varies depending on the State and Territory. Where there is no family, friend, or anyone else available or appropriate to be a substitute decision-maker, a court or tribunal can appoint a guardianship official, for example, the Public Advocate or the Public Guardian, to make decisions for the person.
How should a substitute decision be made?
The guardianship legislation in each State and Territory outlines principles and criteria that substitute decision-makers must take into account when making decisions. However, there are three broad approaches used in substitute decision-making:
- The best interests test, which involves a substitute decision-maker deciding what decision would be in the person’s best interests.
- Substituted judgment, where a substitute decision-maker must determine, from the person’s views, wishes and conduct when they had capacity, what decision they would have made if they were now able to make it.
- Supported decision-making, where a person is supported to make their own decisions.
The substituted judgment test is regarded as being more in line with modern guardianship law, however the best interests test is also relevant in determining what the person would have wanted. The approach adopted will differ depending on the law of the State and Territory in which the person resides. Increasingly a supported decision-making approach is becoming part of how these decisions are made.
If health care or medical treatment is provided to the person who lacks capacity without the consent of a substitute decision-maker or the Supreme Court, the health professional may be committing an offence and may be prosecuted.
What is supported decision-making?
A significant development in guardianship law is the United Nations Convention on the Rights of Persons with Disabilities, ratified by Australia in July 2008. Article 12 of the Convention mentions the concept of supported decision-making. This process involves providing support so that a person, such as an adult with a cognitive impairment, can make their own decisions with assistance rather than a substitute decision-maker making the decision on the person’s behalf.
It is unclear at present what counts as supported decision-making, but examples might include providing information to the person so that they can make a decision, communicating decisions made by the person to health professionals, or participating in the decision-making process with them.
In Victoria, the Medical Treatment Planning and Decisions Act 2016 (Vic), which commenced on 12 March 2018, recognises supported decision-making by enabling a person with decision-making capacity to appoint a 'support person' to:
- support the person to make, communicate and give effect to the person’s medical treatment decisions, when the person has decision-making capacity; and
- represent the person’s interests in relation to medical treatment, including when the person lacks capacity for medical treatment decision-making.
Further information about supported decision-making in Victoria is available on the Stopping treatment (Victoria) webpage.
Other Australian states and territories are yet to introduce legislation which specifically addresses supported decision-making, and as a result there is uncertainty about how supported decision-making will work in the context of medical decision-making at the end of life in those jurisdictions. Questions have been raised about potential legal and practical difficulties associated with supported decision-making and the need for further consideration of these before law reform occurs. Nevertheless, supported decision-making is gaining increasing interest and is likely to form part of other Australian guardianship and medical treatment regimes in the future.
Law by Australian State and Territory
For further information on the laws relating to guardianship and withholding and withdrawing life-sustaining treatment in each State and Territory, select from the list below. These laws relate primarily to adults with impaired decision-making capacity.
- Australian Capital Territory
- New South Wales
- Northern Territory
- South Australia
- Western Australia
Common law (judge-made law) for adults who lack capacity
When can life-sustaining treatment be withheld or withdrawn from an adult who lacks capacity?
There are two situations under common law where it is lawful for life-sustaining treatment to be withheld or withdrawn from an adult who lacks decision-making capacity:
- Where the provision of treatment is not in the patient’s best interest (such as in the case of Airedale NHS Trust v Bland). This decision can be made by the patient’s treating doctors, or the Supreme Court, using its parens patriae jurisdiction.
- Where there is an Advance Directive containing a direction refusing life-sustaining treatment.
At common law family members have no legal decision-making power in relation to the medical treatment of their loved ones. However, in some circumstances family members might be substitute decision-makers under guardianship legislation. This is discussed further on the State and Territory webpages relating to withholding and withdrawing treatment.
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 who lack capacity. This is known as the Court’s parens patriae jurisdiction. It provides the Supreme Court with a 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. Unless the application is extremely urgent or the guardianship legislation is not appropriate to determine the case, the guardianship legislation is generally referred to first.
The Supreme Court has power to:
- authorise medical treatment, including life-sustaining measures, be provided, withheld or withdrawn; and/or
- provide consent on behalf of a person who lacks capacity.
The Court will decide whether, in all the circumstances, the treatment is in the patient’s best interests.
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 patient’s family or friends want continued. In some cases the Supreme Court can also decline to interfere with the decision reached by health professionals.
When is it in a patient’s best interests to withhold or withdraw life-sustaining treatment?
The landmark English case of Airedale NHS Trust v Bland provides an example of when it might be in a patient’s best interests to withhold or withdraw life-sustaining treatment.
Bland was a 17 year old man who was injured in the Hillsborough disaster when he was crushed in a football stadium. His brain was deprived of oxygen which resulted in a permanent, catastrophic injury. He was diagnosed as being in a persistent vegetative state (post-coma unresponsiveness). As a result he could not see, hear or feel anything, could not communicate, and did not have any cognitive function. However, his heart kept beating and he was able to breathe and undertake digestion.
Bland was kept alive by artificial nutrition and hydration for over three years before the hospital authority (with the support of his treating doctors and family) approached the court for declarations that the ongoing medical treatment cease, except treatment needed to make him comfortable. If the declarations were granted, Bland would die.
In relation to best interests, the court decided that a doctor only owes a duty to provide treatment to a patient if it is in his or her best interests. Treatment that is futile cannot be in a patient’s best interests, and doctors do not have a duty to provide that treatment. In those cases, the withholding and withdrawing of treatment is lawful.
The court concluded that there can be situations where providing life-sustaining treatment will no longer be in a patient’s best interests. In the case of Bland, the court said it is not appropriate to prolong a patient’s life when the treatment has no therapeutic purpose, such as where it is futile because the patient is unconscious and has no chance of improving.
This case illustrates that a patient’s health professionals are able to withhold or withdraw treatment that does not benefit the patient, or is not in his or her best interests.
Some Australian cases have also considered the issue of best interests. See for example Messiha v South East Health and Northridge v Central Sydney Area Health Service. Some observations from these cases are:
- That it is not in a patient’s best interests to receive treatment that is futile.
- In deciding what is in a patient’s best interests, the courts will consider the extent to which the treatment is burdensome or intrusive, or whether it would be causing the patient unwarranted pain or indignity.
Withholding and withdrawing life-sustaining treatment from adults who have capacity
Brightwater Care Group v Rossiter  WASC 229
Mr Rossiter was a quadriplegic who was kept alive by receiving artificial hydration and nutrition through a tube into his stomach. He had capacity and decided he no longer wanted to receive this treatment. He asked the facility that was caring for him to withdraw the tube. The Supreme Court was asked for declarations about the rights and obligations of the facility and the patient.
The Court decided that as Rossiter had capacity he was entitled to decide the treatment he wished to receive or refuse. The Court noted that the principle of autonomy prevailed over the sanctity of life, and decided that the duty of the facility to provide Rossiter with the necessaries of life did not apply given he was a competent person refusing treatment. A declaration was made that the facility caring for Rossiter could lawfully withdraw the treatment if Rossiter requested it.
H Ltd v J & Anor  SASC 176
J was a 74 year old woman who suffered from post-polio syndrome and Type 1 diabetes. She resided in a high care unit of an aged care facility run by H Ltd. She spent her waking hours in a wheelchair and required assistance for all of her basic toileting and hygiene needs. J’s quality of life was unacceptable to her, and she advised H Ltd that she had decided to end her life by ceasing to take any food, water or insulin. H Ltd asked the court whether it would be lawful to comply with J’s decision.
The court reviewed the Rossiter decision, and concluded that H Ltd had no legal duty to provide sustenance to J.
Re JS  NSWSC 302
JS was a 27 year old man who had been a quadriplegic since an accident when he was seven. Since that time JS needed full ventilator support through a tracheotomy. His health had deteriorated significantly over the last two years to the extent that JS regarded his quality of life as adversely affected. JS decided he did not want to reach his 28th birthday. He requested his mechanical ventilation be withdrawn. The hospital sought orders from the Supreme Court that it would be lawful to do so.
The Court agreed that the hospital could comply with JS’ request, and decided it would be unlawful for a doctor to provide medical assistance if it was refused by a competent adult. The Court also noted that JS’ actions in refusing medical assistance, even knowing that death would result, did not constitute suicide. Therefore, the doctors involved with his medical care would not commit the criminal offence of aiding or abetting suicide.
Withholding and withdrawing life-sustaining treatment from adults who lack capacity
Auckland Area Health Board v Attorney-General  1 NZLR 235
A man suffered from Guillain-Barre syndrome which left him paralysed and unable to communicate at all (this is sometimes called ‘locked-in syndrome’). He had lived this way for a year, required artificial ventilation to survive, and his condition was irreversible. The man’s doctors (with the support of his family and the hospital’s ethics committee) sought a declaration that it would be lawful to stop providing treatment.
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. The court concluded that the treatment in this case, where the patient was surviving only because of artificial life support, and with no prospect of recovery, could not be considered a necessary of life. Even if there was a duty to provide that treatment, there was a lawful excuse for doctors if withholding the treatment was in accordance with good medical practice. Therefore, the court granted the declaration that it was lawful to withdraw the ventilation.
Messiha v South East Health  NSWSC 1061
Messiha, a 75 year old man, suffered a cardiac arrest which deprived his brain of oxygen. He was admitted to intensive care, unconscious and in a deep coma. He received mechanical ventilation and artificial nutrition and hydration. Messiha needed to have his mouth, nose and throat suctioned, his eyes taped down to prevent corneal ulcers, and he was doubly incontinent. His treating doctor planned to withdraw treatment and provide end of life care including pain and symptom management. Messiha’s family applied to the Court to prevent the withdrawal of treatment, but were unsuccessful.
The Court accepted evidence from three doctors that continued treatment was not justified on medical grounds. It did not agree with the family that Messiha’s best interests required treatment to continue. The doctors’ unanimous opinion was that there was no prospect of a significant recovery, and the treatment was futile except to briefly prolong Messiha’s life. The Court also considered the treatment to be burdensome and intrusive.
Northridge v Central Sydney Area Health Service  NSWSC 1241
A man was admitted to hospital in an unconscious state. He had suffered brain damage after a cardiac arrest caused by a heroin overdose. Six days after admission his treating doctors decided to cease antibiotics and artificial nutrition, and not to resuscitate him should he suffer a cardiac arrest. The patient’s sister applied to the Supreme Court seeking an order that the patient be provided life-sustaining treatment.
The Court was critical of the decision to withdraw treatment, and concluded that the decision was made prematurely. Of significance was expert medical opinion critical of the approach taken by the patient’s treating doctors.
This case illustrates that though doctors are entitled to withhold or withdraw treatment that is not in a patient’s best interests, the Supreme Court can prevent the withdrawal of treatment where it may jeopardise the life, good health or welfare of an unconscious person.
Re T (Adult: Refusal of Treatment)  Fam 95
T did not want to receive blood products as she was a Jehovah’s Witness. She refused blood products following the birth of her child. In conversations about her medical situation, T had assumed that there were other products that would be a satisfactory substitute for blood should a transfusion be necessary. This was not the case, and T needed a blood transfusion to save her life. The court found that the refusal of blood products had been given by T on the basis that alternative treatment was available. The court therefore decided that her refusal of the blood products did not apply to the medical situation that had ultimately arisen.
Withholding and withdrawing life-sustaining treatment
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Willmott, Lindy, White, Ben, & Smith, Malcolm K. (2014). “Best interests” and withholding and withdrawing life-sustaining treatment from an adult who lacks capacity in the parens patriae jurisdiction. Journal of Law and Medicine, 21(4), pp. 920-941.
Willmott, Lindy, White, Ben, Parker, Malcolm, & Cartwright, Colleen. (2011). The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 3 (Victoria). Journal of Law and Medicine, 18(4), pp. 773-797.
Willmott, Lindy, White, Ben, Parker, Malcolm, & Cartwright, Colleen. (2011). The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 2 (Queensland). Journal of Law and Medicine, 18(3), pp. 523-544.
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Willmott, Lindy, White, Ben, & Cooper, Donna M. (2006). The Schiavo decision: Emotional, but legally controversial? Bond Law Review, 18(1), pp. 132-159.
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White, Ben & Willmott, Lindy. (2005). Rethinking life-sustaining measures: Questions for Queensland. QUT, Brisbane, Qld.
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Substitute decision-making and guardianship
McGee, Andrew. (2014). Best interests determinations and substituted judgement: Personhood and precedent autonomy. In Charles Foster, Jonathan Herring, & Israel Doron (Eds.), The Law and Ethics of Dementia (pp. 135-147). Oxford: Hart Publishing.
White, Ben, Willmott, Lindy, & Then, Shih-Ning. (2014). Adults who lack capacity: Substitute decision-making. In Ben White, Fiona McDonald, & Lindy Willmott (Eds.), Health Law in Australia (2nd ed.) (pp. 193-253). Pyrmont, NSW: Thomson Reuters.
Then, Shih-Ning, Patrick, Hilary, & Smith, Nicola. (2014). Reinforcing guardianship regimes through assisted decision-making: A Scottish perspective. The Juridical Review, 2014(4), pp. 263-279.
Then, Shih-Ning. (2013). Evolution and innovation in guardianship laws: Assisted decision-making. Sydney Law Review, 35, pp. 133-166.