End of Life Law in Australia

What powers does the Supreme Court have to withhold or withdraw life-sustaining 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  • authorise medical treatment, including life-sustaining measures, be provided, withheld or withdrawn; and/or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.