Cutting the Gordian Knot of Futility: A Case for Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment

Jocelyn Downie


In Australia and New Zealand, courts, hospitals, health care professionals, patients, and their families and friends are wrestling with gut‐wrenching conflicts that can arise when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should. Occasionally, details of specific cases spill over into the media, engaging the public in the often‐heated debate. Talk of ‘unrealistic expectations’, ‘false hope’, and ‘futility’ abounds and tests for defensible withholding or withdrawal of treatment, such as ‘a reasonable prospect of returning a patient to a meaningful quality of life’ and ‘accepted medical practice’, are proposed.

In this paper, we will attempt to take a step back from the drama and vitriol and suggest an approach to law and policy reform grounded in identification of core values, careful conceptual analysis, and a dose of humility and pragmatism. To that end, we reflect on the core values that do (or should) underpin a regulatory framework for deciding on whether potentially life‐sustaining treatment should be withheld or withdrawn. These values and the ways to balance these values against each other are drawn from legislation, the common law and conventions and treaties that have been ratified by Australia and New Zealand. We then summarise the legal context in Australia and New Zealand within which the ethical debate about the unilateral withholding and withdrawal of potentially life‐sustaining treatment is situated; and we undertake a critique of that law as against the core values that we have articulated. Finally, we offer a proposal for how the law might be reformed such that it will more closely align with the core values it is supposed to serve by shifting the decision‐making authority from doctors to patients and substitute decision‐makers. These proposals would be suitable for adults with and without decision‐making capacity, as well as for children. We hope that in the end this field might move from friction to accord and, ultimately, to better care for both the living and the dying.

We note finally that this paper focuses on the unilateral withholding and withdrawal of potentially life‐sustaining treatment. This is where a doctor withholds or withdraws treatment without consent from a patient or patient’s substitute decision‐maker (‘sdm’)2 (where the patient lacks capacity), or authorization from a court or tribunal, or by operation of a statute or justifiable government or institutional policy. In other words, where a doctor withholds or withdraws treatment on his or her own authority.

co-authors: Linday Wilmott, Ben White


Health Law; Law and Policy

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