Ethics and law
Ethics
Volume 198 - Issue 4

Legal perspectives on consent in disputes about futile care

Author:  Cameron L Stewart

Med J Aust 2013; 198 (4): 225-226. || doi: 10.5694/mja12.10789
Published online: 4 March 2013
Futility disputes highlight some important legal principles concerning the right to refuse treatment, advance directives and the role of substitute decisionmakersThe need for legal resolution of futility disputes is a rare occurrence in Australia and the jurisprudence is still emerging.1 The legal approach to futility disputes differs in each state jurisdiction, and a full analysis of the Australian law is beyond the scope of this ...
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Futility disputes highlight some important legal principles concerning the right to refuse treatment, advance directives and the role of substitute decisionmakers

The need for legal resolution of futility disputes is a rare occurrence in Australia and the jurisprudence is still emerging.1 The legal approach to futility disputes differs in each state jurisdiction, and a full analysis of the Australian law is beyond the scope of this article. Most recent discussions have focused on the law in Queensland and New South Wales,2,3 so for this hypothetical I will outline the relevant South Australian law, given the SA connections of the other authors of this set of articles.4,5 However, this discussion has clear relevance to other jurisdictions in Australia.

Five established legal principles in South Australia
Adult patients are presumed to be mentally competent

Australian law presumes that all adults are mentally competent. But this presumption can be rebutted. In Re MB (Medical Treatment) [1997] 2 FLR 426 it was said that a person lacks capacity if he or she is unable to comprehend and retain treatment information or is unable to use information, weigh it and make a choice. In the case described by Koczwara,4 John’s decisions to refuse tube feeding and chemotherapy were made competently. His capacity had not been disproved.

Patients can refuse life-sustaining treatment

In H Ltd v J [2010] SASC 176, J was a 73-year-old woman who was suffering from post-polio syndrome and diabetes. She was partially paralysed and confined to a wheelchair. She resided in a nursing home owned by H Ltd. J decided to end her life by refusing to eat and drink. She also refused insulin. J made an advance directive in accordance with the SA legislation and refused artificial nutrition and hydration. The nursing home approached the court for directions as to the lawfulness of J’s decision. Kourakis J found that there was no common law duty imposed on J to eat and drink. Consequently, it was not suicide for her to die from self-starvation, and there was no duty on the part of the nursing home to force-feed her or give her insulin.

Patients can make advance directives

Patients can make advance decisions to refuse treatment. These decisions are commonly referred to as “advance directives”, but in SA they are officially known as “anticipatory refusals” or “anticipatory directions”. In SA, such decisions are regulated by the Consent to Medical Treatment and Palliative Care Act 1995. A direction becomes operative when the patient is incompetent and in the terminal phase of a terminal illness. The SA Parliament is currently considering a new Advance Directives Act that will recognise decisions to refuse treatment recorded in a standard form, without the requirement that the patient be in the terminal phase of a terminal illness.

John did not make an anticipatory direction. The best time to have completed this would have been after he decided to refuse tube feeding and agreed to stop chemotherapy. A discussion was already taking place about his care, and this would have been an ideal time to record his wishes concerning life-sustaining treatments. A direction may have prevented the later conflict over his care.

Patients can appoint substitute decisionmakers

In SA, a substitute decisionmaker can be arranged in two ways. “Medical agents” can be appointed with powers to make decisions about medical treatment that appear to include power to refuse treatment (Consent to Medical Treatment and Palliative Care Act, s. 8). Medical agents must act in accordance with any lawful conditions and directions contained in the medical power of attorney document and they must generally act in the best interests of the patient. They cannot refuse natural administration of food and water, palliative care or treatment which would return the grantor to capacity (s. 8). Alternatively, John could have appointed an “enduring guardian”. Enduring guardians have all the powers of a guardian in law and equity and can consent to or refuse medical treatment for the person.

The new Advance Directives Act, if passed, will replace the medical agent and enduring guardian processes with an advance directive that allows for the appointment of a substitute decisionmaker. The substitute decisionmaker must follow directions as written by the patient, and, in the absence of a direction, must endeavour to make a decision that the patient would have made in the circumstances had he or she been competent.

From the facts in John’s case, it would appear that neither form of decisionmaker was appointed. It is important to enquire whether a patient has any agents or guardians, preferably on admission. A conversation about whether John would have liked to appoint a medical agent or enduring guardian could have occurred at the time he refused enteral feeding. This again may have reduced the chance of conflict occurring later.

Intervention by tribunals may be necessary in cases of dispute

In the absence of a direction, a medical agent or an enduring guardian, we are left with the professional opinions of the health care team and the role of relatives under the Guardianship and Administration Act 1993 (SA). Under s. 59 of that Act, relatives can give consent to treatment, but there is no express power to refuse treatment. Nevertheless, s. 17(2) of the Consent to Medical Treatment and Palliative Care Act states:

A medical practitioner responsible for the treatment or care of a patient in the terminal phase of a terminal illness, or a person participating in the treatment or care of the patient under the medical practitioner’s supervision, is, in the absence of an express direction by the patient or the patient’s representative to the contrary, under no duty to use, or to continue to use, life sustaining measures in treating the patient if the effect of doing so would be merely to prolong life in a moribund state without any real prospect of recovery or in a persistent vegetative state. [my emphasis]

The section has clearly been written to enable health care professionals to omit treatment that is futile. The differing professional opinions about John’s prognosis made it initially difficult to apply this section to John’s situation. Later, when opinions coalesced and united, the section clearly applied.

Section 17(2) also indicates that, to have the protection of the section, one needs the consent of the patient or the patient’s representative. “Patient representative” is defined to include “relatives”. Under the Guardianship and Administration Act, both John’s wife and son would qualify as a “relative”, but nothing is said about what to do when disputes between relatives occur.

If the new Act is passed it will replace the current arrangements with a “person responsible”, who will ordinarily be a relative, carer or friend of the patient. The person responsible will be given the power to refuse treatments in situations where he or she reasonably believes that the patient would have refused treatment had he or she been competent.

Given the difference of opinion between John’s wife and son, resort to the Guardianship Board was appropriate. The Public Advocate, as John’s guardian, had the power to refuse treatment, which resolved the legal uncertainty. Perhaps more importantly, the Public Advocate’s appointment seems to have acted like a circuit breaker and enabled all the parties to reach a consensus about the best way forward for John. That decision clearly fell under s. 17 of the Consent to Medical Treatment and Palliative Care Act. That section also provides protection to health care professionals when it states that treatment discontinuation decisions, made in accordance with s. 17(2), do not constitute a legal cause of John’s death.

Conclusion

Perhaps what is surprising is that futility concepts may play a subsidiary role to issues of consent. Some have argued that consent to withhold or withdraw futile treatment should not be necessary, as futile treatment cannot be demanded and such treatment is never in a patient’s best interests.6 These are undoubtedly true positions. However, they belie the fact that futility assessment is difficult and requires consideration of medical and social factors in the assessment of the patient’s best interests. A procedural approach to futility assessment, involving the treatment team and substitute decisionmakers, is the best way forward for an assessment, and this necessitates a good-faith attempt at reaching consensus.3 Consensus may be difficult to achieve, in which case resort to guardianship bodies or the Supreme Court may prove necessary.

Advance care planning provides a way to avoid conflicts in end-of-life care. The creation of a direction or the appointment of an agent or enduring guardian may reduce the likelihood of conflict and provide greater certainty to the health care team.

Author

  • Cameron L Stewart BEc, LLB(Hons), PhD1
  • 1. Centre for Health Governance, Law and Ethics, Sydney Law School, Sydney, NSW.

Correspondence: cameron.stewart@usyd.edu.au

Competing interests

No relevant disclosures.

References

Provenance: Commissioned; externally peer reviewed.

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