Legal perspectives on consent in disputes about futile care

Cameron L Stewart
Med J Aust 2013; 198 (4): . || 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 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.

  • Centre for Health Governance, Law and Ethics, Sydney Law School, Sydney, NSW.


Competing interests:

No relevant disclosures.

  • 1. Stewart C. Law and cancer at the end of life: the problem of nomoigenic harms and the five desiderata of death law. Public Health 2011; 125: 905-918.
  • 2. Lawrence S, Willmott L, Milligan E, et al. Autonomy versus futility? Barriers to good clinical practice in end-of-life care: a Queensland case. Med J Aust 2012; 196: 404-405. <MJA full text>
  • 3. Stewart CL. A defence of the requirement to seek consent to withhold and withdraw futile treatments. Med J Aust 2012; 196: 406-408. <MJA full text>
  • 4. Koczwara B. What is futile and who decides? The clinician’s dilemma. Med J Aust 2013; 198: 221-222.
  • 5. Wilkinson DJC.Futile treatment: the ethicist’s perspective. Med J Aust 2013; 198: 223-224.
  • 6. Skene L. Withholding and withdrawing treatment in South Australia when patients, parents or guardians insist that treatment must be continued. Adelaide Law Rev 2003; 24: 161-185.


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