Where the decision to withdraw treatment from an incompetent patient is made by practitioners on the grounds that treatment is futile and not in the best interests of the patient, family members do not always agree. There are Australian cases where such decisions have been tested. For example, in 2004 75-year-old Mr Messiha was admitted to hospital with severe brain hypoxia following a cardiac arrest. He had a history of severe lung disease and cardiac problems. Two days after his admission the hospital staff raised the possibility of withdrawing mechanical ventilation on the basis that there had been no improvement in his condition and there was no realistic prospect of recovery. Mr Messiha’s family members disagreed and sought an order from the New South Wales Supreme Court to prevent the hospital staff from withdrawing treatment. The court declined to order continuance of the treatment and Mr Justice Howie commented that:

In Herrington’s case⁴ in 2007, an application was made to the Victorian Supreme Court by John Herrington seeking orders that medical treatment be given to his partner, Rosalie King. Ms King had been in a persistent vegetative state (PVS) for 4 months and was being hydrated and fed via a percutaneous endoscopic gastrostomy tube (PEG). The medical staff wished to cease feeding due to the danger of her vomiting and aspirating. The medical staff met with Mr Herrington and Ms King’s family to discuss the change in treatment plan. Ms King’s parents and partner, Mr Herrington, provided evidence in relation to Aboriginal culture which believes a sick person should be cared for and not left to die, and Ms King’s beliefs that, if she could express an opinion, she would not agree with the ceasing of the PEG feeding. In addition, Mr Harrington believed that he had spent more time with Ms King than the medical staff and he firmly held to the view that she might improve if treatment continued. He also requested an independent assessment.

Mr Justice Williams indicated that he had taken into account all of the evidence put before the court. The medical evidence was of the universal opinion that treatment would be futile and could possibly hasten Ms King’s inevitable death. The judge stated:

In the Northern Territory in Melo v Superintendent of Royal Darwin Hospital (2007) ⁶ the parents of a severely brain injured man sought an injunction to prevent the hospital withdrawing mechanical ventilation and the court provided further insight into relevant considerations. The court has jurisdiction to protect the right of an unconscious person to receive ordinary, reasonable and appropriate medical treatment, sustenance and support, as opposed to extraordinary, excessively burdensome, intrusive or futile treatment. What constitutes appropriate medical treatment in a given case is a medical matter in the first instance. However, where there is doubt or serious dispute in this regard, the court has the power to act to protect the life and welfare of the unconscious person. In this case the medical evidence indicated that there was not the slightest possibility that there was anything that could be done and the parents’ request was refused.

Most states and territories have passed specific legislation which incorporate the appointment of a medical power of attorney and/or an advance directive. It is important to remember that this area of the law is an extension of the law of consent which fundamentally recognises the autonomy of the individual. The aim of establishing mechanisms to specify treatment wishes, or providing for the appointment of an agent, allows the patient to choose who will make decisions and what type of treatment decisions will be made on his or her behalf should he or she be incapacitated. For example, a patient who wishes a spouse to make decisions relating to medical treatment when the patient loses competence, or the Jehovah Witness patient who will not accept a blood transfusion as part of the treatment plan. Research demonstrates that medical practitioners working in acute care settings are not expecting patients to refuse therapy, or are unclear about the legal standing of relatives’ input, when treatment decisions need to be made, with resultant dilemmas. ⁸ This requires knowledge of the existing legal frameworks.

Not every Australian jurisdiction has enacted legislation to deal with refusal of medical treatment, medical powers of attorney or advance directives. The following provides an overview of the differing requirements established in each state and territory.

The Medical Treatment Act 1988 applies to competent adults and establishes two key mechanisms. The first mechanism, in Schedule 1 of the Act, allows a person to refuse treatment using a refusal of treatment certificate. The features related to this mechanism require the person to identify the ‘specific’ area of treatment (such as antibiotics or blood) he or she intends to refuse or, more broadly, treatment in ‘general’ may be refused. The patient’s refusal of treatment should relate to treatment of a ‘current condition’ (diagnosis) that must be identified by a medical practitioner. The common law principles of consent have been incorporated into the certificate. Therefore, the patient’s decision to refuse treatment must be made voluntarily and the patient must be competent, that is, of sound mind, and at least 18 years of age. The certificate requires the signature of two witnesses. One must be that of a medical practitioner and both witnesses must be satisfied that the aforementioned criteria are met. The Act is intended to allow individuals to clarify their wishes in relation to treatment and includes a section making it an offence for medical practitioners to continue to provide treatment once the certificate is signed. The sanction under the Act for non-compliance amounts to a fine. This penalty has never been invoked, and where a medical practitioner is acting in good faith, without the knowledge of the certificate, the conduct will not be subject to the fine.

The second mechanism allows a competent adult (the donor) to appoint an agent using a medical power of attorney (called an enduring power of attorney medical treatment; Schedule 2 of the Act). Two witnesses are required to sign this document; one must be eligible to witness a statutory declaration. It is important to note that neither witness should be named as the attorney, this must be a different individual. ⁹ To assist the agent in understanding the donor’s views about possible medical treatment the Office of the Public Advocate suggests that donors write this information down and give it to the appointed agent. The agent’s power extends to providing consent to treatment and refusing or withdrawing consent to medical treatment. (Schedule 3 of the Act allows an agent or guardian to refuse treatment on behalf of the incompetent patient.) The agent can only refuse treatment if the treatment would cause the donor unreasonable distress or the agent believes, on reasonable grounds, that the donor would not want the treatment to continue. A competent donor can cancel a medical enduring power of attorney at any time. If there is reason to believe that the agent is not making decisions as the donor intended or is abusing his or her power, the Guardianship and Administration Board may revoke or suspend the power of attorney.

The Natural Death Act 1988 in the Northern Territory allows legally competent adults who have a terminal illness to refuse ‘extraordinary’ measures. ‘Extraordinary’ treatment or procedures include medical or surgical measures which prolong life by supplanting or maintaining the operation of bodily functions that are temporarily or permanently incapable of independent operation. The regulations set out the prescribed format required to document an individual’s wishes. The individual may refuse ‘extraordinary’ treatment and procedures generally or specify the particular ‘extraordinary’ treatment and procedures he or she wishes to refuse. Two witnesses must sign the certificate; neither may be the medical practitioner responsible for the treatment of that person. The Act specifies that the withdrawal of, or the non-application of, the ‘extraordinary’ measures to a person with a terminal illness does not constitute a cause of death when made in accordance with a direction of the patient.

The Consent to Medical Treatment and Palliative Care Act 1995 allows legally competent adults to provide advance directives. The directions must relate to treatment given where the patient suffers a terminal illness or is in a permanent vegetative state, and where the patient is incapable of making decisions. The directive is required to conform to a prescribed format (Schedule 2 of the Act) and must be witnessed by an authorised person. The patient directions should define those circumstances or conditions regarding acceptable or non-acceptable medical treatment.