Legal aspects of withdrawal therapy

Abstract

The ability of intensive care to replace or support vital organ function has resulted in some patients surviving for long periods of time without improvement or a terminal event. In patients with no realistic chance of survival, decisions to withdraw or withhold life-sustaining therapies are commonly made. Withdrawal of life support at the patient’s request is lawful at common law and, in some states of Australia, by legal statute. In the intensive care setting though, it is more common for therapy to be withdrawn because the therapy is of no perceived benefit or not in the patient’s best interests. However, in Australia there is little case law and very little legislation to direct the decision of whether to withdraw life-sustaining therapy on the grounds of futility or the patient’s best interests. The legislation that does exist in Australia, as well as law from other jurisdictions, largely places responsibility for the decision to withdraw therapy on the doctor in charge of the patient’s care. However much weight is frequently placed on the wishes of the family. Disagreements between family and clinicians over decisions to withdraw therapy are unusual and generally resolve over time. However if disagreement persists, it may be advisable to apply to the courts for a declaratory judgement, given the tenuous legal basis of withdrawal of life-sustaining therapy in Australia and the uncertainty over the courts’ view of the role of the patient’s family in the decision-making process.