- Intractable disputes about withholding and withdrawing life-sustaining treatment from adults who lack capacity are rare but challenging. Judicial resolution may be needed in some of these cases.
- A central concept for judicial (and clinical) decision making in this area is a patient's “best interests”. Yet what this term means is contested.
- There is an emerging Supreme Court jurisprudence that sheds light on when life-sustaining treatment will, or will not, be judged to be in a patient's best interests.
- Treatment that is either futile or overly burdensome is not in a patient's best interests. Although courts will consider patient and family wishes, they have generally deferred to the views of medical practitioners about treatment decisions.
What should doctors do if they cannot reach agreement with a family about life-sustaining treatment for an adult who lacks decision-making capacity? Effective conflict-resolution strategies generally resolve these disputes and intractable conflict is rare.1-3 But when such disputes occur, they are stressful for clinicians, families and patients. Health professionals can experience moral distress, with significant personal and professional impact.1,4 In such cases, or where there are concerns about the lawfulness of proposed conduct, medical practitioners or their hospitals may need to seek a court or tribunal opinion.1,5,6 Concerned family members may themselves seek a judicial intervention.
Although all Australian states and territories have adult guardianship tribunals,7 Supreme Courts retain an important role in this field. They have jurisdiction to resolve end-of-life disputes, and their decisions provide authoritative guidance for guardianship tribunals and clinicians in their deliberations. Supreme Courts apply the test of whether the proposed treatment is in the patient's “best interests”, and this term (or analogous concepts) is also one of the criteria applied by guardianship tribunals.7 Yet, what “best interests” means is contested.8,9 In this article, we identify six key themes from the developing body of Supreme Court jurisprudence about life-sustaining treatment decisions for adults who lack capacity (Box 1).
Supreme Court case law concerning end-of-life decisions
We are aware of only 16 Supreme Court decisions in Australia that concern the withholding or withdrawal of life-sustaining treatment from an adult who lacks capacity. Of these decisions, the issue of the patient's best interests was directly relevant in eight cases (Box 2). The other eight cases focused on other issues, such as the validity of an advance directive and interpretation of guardianship legislation.
To determine trends in judicial reasoning, we thematically analyse the eight cases involving a determination of best interests. Most of these cases involved proposed withdrawal of treatment. The law generally treats withholding and withdrawing treatment as equivalent.10 However, situations involving withdrawal are possibly more likely to lead to family conflict, because decisions to stop treating, as opposed to not offering treatment, are more prone to be construed by families as more causally connected to death.11
Theme 1: Futile treatment is not in a patient's best interests
The concept of “futility” is contested.12,13 We do not add to that debate here, but instead highlight the link made in judgments between futility and best interests. In three of the eight decisions (Melo, Herrington and Messiha), the Supreme Court explicitly stated that where treatment is futile, it would not be in the patient's best interests to commence or continue with it. In Melo and Herrington, the court did not explain why the treatment was futile. Instead, the medical practitioners' assessments of futility were relied on to inform the best interests assessment. In Messiha, it was held that treatment would be futile because continuation of life-sustaining measures would confer no real prospect of recovery.
Two other cases also clarify the role of futility in these deliberations. In Justice Health, the court stated that active treatment was futile because it would “achieve no more than a short prolongation of life without quality” and therefore did not need to be provided. By contrast, in JT, the court found that treatment was not futile (the patient was not dying) and so it would not authorise non-treatment.
The courts have expressed the view that futile treatment will not be in a patient's best interests.14 But what justifies labelling treatment as futile? Courts have generally relied heavily on medical determinations of futility. Despite ongoing debate regarding this concept, medical opinion is important to judicial determinations.
Theme 2: Overly burdensome treatment is not in a patient's best interests
In the end-of-life setting, decisions may be made to commence or continue invasive forms of treatment such as assisted ventilation or to progress to palliative treatment. Supreme Courts have held that life-sustaining treatment that creates excessive burdens for a patient, relative to possible benefits, is not in the patient's best interests (Slaveski). This includes considering potential pain or indignity that the patient may suffer through receiving treatment (Herrington). Treatment may still be burdensome even where the patient is unconscious and unaware of these burdens (Messiha).
Theme 3: Quality of life is relevant
Quality-of-life considerations have not been explicitly acknowledged by the Supreme Court as relevant to patients' best interests, apart from the brief mention in Justice Health noted above. Nevertheless, in the remaining seven cases, we contend that quality of life has been relevant when assessing the patient's best interests. This has at least occurred implicitly through an examination of a person's prognosis as part of a best interests assessment.
To illustrate, in the four cases where treatment was withheld or withdrawn, the patients had profound brain injury with no prospect, or very little prospect, of neurological recovery (Slaveski, Melo, Herrington and Messiha). By contrast, the three remaining cases where life-sustaining treatment was commenced or continued involved patients in better neurological states (Northridge, JT and Astill). Although not couched in terms of quality of life, the capacity to engage meaningfully with the world seems to be relevant. It appears that, at least indirectly, judges consider how the proposed treatment will affect quality of life.
Theme 4: The views and wishes of the patient (and perhaps family) are relevant but not determinative
When assessing a patient's best interests, Supreme Courts have given some consideration to the views and wishes of the patient and family members. This was given at least some attention in three cases, although such views were not influential on the courts' final conclusions.
In Astill, a woman's “no blood” advance directive failed because it did not comply with formalities required by Queensland legislation. The court still considered her views but concluded that there was no evidence to suggest that they remained current when the case was heard. Further blood transfusions were authorised despite the previous directive. In Herrington, the court considered the views expressed by the patient (which were communicated to the court by the patient's partner), stating that she would have wanted continued treatment. Ultimately, however, treatment was universally regarded by the medical evidence as futile and was not provided. In JT, the court acknowledged the patient's views as a relevant factor, but they were disregarded because they were “the product of delusional and irrational thought”.
The cases also demonstrate several ways that the views and wishes of family members can be considered in the best interests assessment. First, family can provide information relating to the patient's values or wishes about proposed treatment (Herrington and Astill). Second, family members may have their own views about the patient's best interests. In Astill, the judge observed that he had taken into account views expressed by all family members when determining the patient's welfare. The other seven cases did not formally acknowledge the views of family members as being directly relevant to the best interests assessment; however, some made reference to family views and preferences (Slaveski, Melo, Herrington, Messiha and Northridge). Finally, family members have expressed views to the court about the patient's level of responsiveness and awareness of their surroundings. Thus, in some cases, the family challenged the medical prognosis to suggest that the patient had responded or engaged in a way that indicated an improved state. In all such cases, the court preferred the views of the medical team, concluding that continued treatment was not in the patient's best interests (Melo, Herrington and Messiha).
Theme 5: The interests of others are not relevant
Supreme Courts have not regarded the interests of others (aside from the potential relevance of the views of the family members outlined above) as being relevant to the best interests assessment. For example, in Northridge, the court observed that “the exercise of the parens patriae jurisdiction [the court's inherent jurisdiction that allows it to make decisions concerning people who lack capacity] should not be for the benefit of others … including a health care system that is intent on saving on costs”. Similarly, in JT, the potential distress to health professionals from providing forced treatment did not influence the assessment of what was in the patient's best interests.
Theme 6: Judicial deference to the medical profession
Supreme Courts have usually deferred to medical opinion when assessing best interests. In some instances (eg, Melo and Herrington), the courts did not question the conclusion reached by medical practitioners that treatment was futile; however, as emphasised in Messiha, the final assessment rests with the court. In Northridge, medical decision making was found not to be clinically justified, and the New South Wales Supreme Court was critical of the medical opinion provided.
Supreme Court jurisprudence in Australia on end-of-life treatment is still developing, but there is enough case law to provide useful guidance about assessing a patient's best interests. This guidance is significant both for future Supreme Court decisions and those made by guardianship tribunals. Although only a minority of cases require judicial intervention, legal considerations remain relevant for the larger group of difficult decisions that occur each day, because medical decisions are made in the “shadow of the law”.15 Our analysis highlights the themes that emerge from judicial decisions. Although every situation has unique circumstances, these factors may be useful for medical practitioners contemplating withdrawing or withholding treatment from incompetent adult patients.
A best interests assessment not to treat can be justified at law if there is a clear basis for deciding treatment is futile (despite this term's subjectivity) (theme 1), or if the patient is extremely unlikely to recover consciousness (theme 3). Treatments that are particularly invasive or burdensome relative to their benefits will also not be in a patient's best interests (theme 2). Decisions should take account of patient views, where known (theme 4), and those of family members. However, the interests of an overstretched health system are not relevant (theme 5). Finally, where a medical view concludes treatment should not be provided, this is likely to be supported by the court, but it should be corroborated, for example, with a second opinion (theme 6).
1 Six key themes from Supreme Court jurisprudence of “best interests” for decisions about life-sustaining treatment for adults who lack capacity
- Futile medical treatment is not in a patient's best interests.
- Treatment that is overly burdensome is not in a patient's best interests, even if the patient is unconscious or unaware of treatment burdens.
- Courts have generally not engaged expressly in quality-of-life assessments, but they remain relevant for determining best interests when considering the patient's medical condition and prognosis.
- A patient's wishes and values (gleaned when the patient was competent) are relevant to, but do not determine, his or her best interests. Family members' views may also be relevant where they are reflecting a patient's wishes, and perhaps also when reflecting their own wishes, but these views are not conclusive in determining a patient's best interests.
- The interests of other people and organisations (including the wider health system) are generally not relevant when determining a patient's best interests.
- Courts have generally deferred to medical practitioners' opinions about treatment decisions, even when the patient's family has strongly opposed them.
2 Supreme Court cases on best interests and life-sustaining treatment for adults who lack capacity
Application of Justice Health; Re a Patient (2011) 80 NSWLR 354;  NSWSC 432 (Justice Health)
The New South Wales Supreme Court declared that life-sustaining treatment for a prisoner with end-stage lung cancer, who lacked capacity and was expected to live for only a matter of days or weeks, was futile and need not be given.
Slaveski v Austin Health  VSC 493 (Slaveski)
The Victorian Supreme Court held that continuing artificial ventilation for a 71-year-old man in a coma from a catastrophic stroke was burdensome and not in the man's best interests. The medical team did not need to provide treatment despite family requests.
Australian Capital Territory v JT (2009) 4 ACTLR 68;  ACTSC 105 (JT)
The ACT Supreme Court held that artificial nutrition and hydration was not futile for a 69-year-old man with a psychiatric illness manifesting in religious obsessions which led to extreme fasting. The court declined to make the declaration sought by the government that it would be lawful to stop this treatment.
Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197;  NTSC 71 (Melo)
The Northern Territory Supreme Court held that treatment for a 29-year-old man with catastrophic injuries sustained in a motor vehicle accident, including high-level fractures of the cervical spinal cord and brain damage, was futile. Despite family requests, the court did not require continued treatment.
In the Matter of Herrington; Re King  VSC 151 (Herrington)
The Victorian Supreme Court declined to order that active treatment (including the administration of fluids) be continued for a woman with hypoxic brain damage who had been in a vegetative state for 6 months. It held that the medical team should progress with palliative care despite family request for more active treatment.
Queensland v Astill (unreported, Supreme Court of Queensland, Muir J, 18 January 2006) (Astill)
The Queensland Supreme Court ordered blood transfusions be given to a woman injured in a motor vehicle accident despite her possessing a “no blood” card. This card did not comply with formalities of Queensland legislation and so did not operate. Treatment was ordered to promote the patient's welfare.
Messiha v South East Health  NSWSC 1061 (Messiha)
The NSW Supreme Court held that active treatment for a 75-year-old man, who suffered severe brain damage after he collapsed at home and his brain was deprived of oxygen for 25 minutes, was futile, burdensome and intrusive and should not be continued. The court did not accept the family's view that treatment was in the patient's best interests.
Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549;  NSWSC 1241 (Northridge)
The NSW Supreme Court reinstated active treatment for a man with brain damage following a drug overdose. The court held that the diagnosis that he was in a “chronic vegetative state” and the decision to withdraw treatment were premature, contrary to the hospital's own guidance, and not in the patient's best interests.
Provenance: Not commissioned; externally peer reviewed.
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