Futility assessments, which are unavoidable in end-of-life settings, need to be procedurally fair. This necessitates communication between health professionals and substitute decisionmakers regarding the decision to define treatments as futile.
The common law test for whether treatment should be withheld or withdrawn is the best interests test. A futile treatment is not in any patient’s best interests.
While it is rare for the law to disagree with a futility determination made by health professionals, if a determination has been made without consultation and fails to reflect the patient’s best interests, the courts will overturn it.
The best regulatory regimes provide for a balance between the powers of health professionals and substitute decisionmakers to make decisions for incompetent patients, and for clear and efficient dispute resolution.
The Queensland law and its requirement for consent to withhold or withdraw futile treatment represents a good model of futility determination, with clear powers given to substitute decisionmakers and health professionals. Disputes concerning the treatment of incompetent patients automatically trigger the appointment of the adult guardian as the decisionmaker, and there are avenues for appeal.
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