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Withholding and Withdrawing Treatment in South Australia When Patients, Parents or Guardians Insist that Treatment Must Be Continued

The Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17(2) appears to prevent doctors from withholding or withdrawing treatment if patients or their representatives object, and to preclude court review. Patients would then have an unprecedented legal right to have medical treatment continued, however poor their condition and prognosis. One may question whether the Parliament intended to make such a radical change to the common law. In many reported cases, English judges have authorised withholding of futile or burdensome treatment, despite family objections and a Victorian court has recently sanctioned even the withdrawal of life-sustaining treatment. The author argues that s 17(2) is ambiguous and should be interpreted in a more limited way, to conform with common law. Though it is possible that South Australian courts might adopt a different and more radical interpretation of the provision, health care providers in that State probably face little legal risk if there is a unanimous, carefully considered, fully documented medical opinion, fully involving the family. However, for legal protection, a hospital could apply to the Family Court of Australia if the patient is a child (the Court would probably have jurisdiction despite the High Court's recent limitation of the Family Court's welfare jurisdiction, and could override the State Act). The Family Law Act applies only if the patient is a child. There is no equivalent federal legislation that would enable a federal court to intervene and possibly override State legislation if the patient is an adult, however 'disabled'. For adult patients, the Supreme Court or the Guardianship Board would be the only options and, if the State Act is literally interpreted, even they would seem to have no power to intervene. For that reason, the Act should be amended to allow court review if relatives object to treatment decisions.