Factsheet: Withholding and Withdrawing Life-Sustaining Medical Treatment
Decisions to withhold or withdraw life-sustaining medical treatment can be difficult. Sometimes they are made by the person themselves (if they have capacity), and sometimes they are made on behalf of the person (if they no longer have capacity). This factsheet explains the key legal principles about withholding and withdrawing life-sustaining treatment.
Clarifying the law
This factsheet explains:
- what is 'life-sustaining treatment'
- when a decision to withhold or withdraw life-sustaining can be made
- who can make the decision
- when the decision must be followed
What is life-sustaining treatment?
Life-sustaining treatment is treatment that is needed to prolong a person's life. Examples include cardiopulmonary resuscitation, artificial hydration and nutrition, artificial ventilation, and in some circumtances, antibiotics and blood transfusions.
When is it lawful to withhold or withdraw treatment?
A decision to withhold or withdraw treatment is a common feature of medical practice when a person is approaching the end of life. The law that governs this practice will differ depending on whether the person has capacity to make treatment decisions.
Where the person has capacity
A person with capacity may refuse any medical treatment, even if it is needed to keep the person alive. It is lawful for a health professional to withhold or withdraw treatment from a person with capacity who has refused that treatment. In fact, a health professional who provides treatment contrary to a refusal will have committed an assault on the person.
Where the person does not have capacity
The law is more complex when a person does not have capacity to make a treatment decision. However, a decision to withhold or withdraw life-sustaining treatment can still be lawful in some cases. These include:
- when the person has an Advance Care Directive which refuses that treatment.
- when providing the treatment would not be in the person’s best interests. This is sometimes referred to as treatment that is ‘futile’ or non-beneficial. An example of this kind of treatment may be the artificial nutrition or hydration of a person in the final stages of Alzheimer’s disease who can no longer swallow.
- a decision made by the person’s substitute decision-maker to withhold or withdraw treatment. The law on this is not the same throughout Australia. It is important to consult the guardianship and medical treatment legislation in your state and territory to determine when a substitute decision-maker can make this kind of decision.
Find out more about the law on withholding and withdrawing treatment in your state or territory at End of Life Law in Australia.
Decision-making about life-sustaining treatment is discussed further in the Legal Toolkit factsheets ‘Advance Care Directives’ and ‘Substitute Decision-making’.
In some cultures end of life decision-making is a collective process, involving the individual, their family and community. Be mindful that some people may wish to include their extended family and community members in treatment decision-making and future planning discussions. Sometimes interpreters may be required. Learn more at CareSearch.
Does a decision to withhold or withdraw treatment have to be followed?
Generally a health professional must follow a decision to withhold or withdraw treatment made:
- by a person who has capacity,
- in a valid Advance Care Directive (made when the person had capacity), or
- by a person’s substitute decision-maker.
If they do not, a health professional could be liable under the criminal or civil law, and subject to disciplinary sanction.
However, generally a health professional does not have to provide treatment that they consider is of no benefit, not in the person’s best interests, or futile, even when it is demanded by a person or their substitute decision-maker.
The position is different in Queensland when the person does not have capacity and their substitute decision-maker is wanting treatment. For more information on the Queensland law, please refer to End of Life Law in Australia. These issues are also discussed further in the Legal Toolkit factsheet ‘Futile or non-beneficial treatment’.
Disputes about withholding or withdrawing treatment
These kinds of decisions can be very challenging. Sometimes disputes arise between the person, health professionals, families and substitute decision-makers about whether treatment should be withheld or withdrawn.
Find out more about how to resolve disputes in this kind of situation in your state or territory at End of Life Law in Australia.
- A decision to withhold or withdraw life-sustaining treatment is a common feature of medical practice when caring for people who are approaching the end of life.
- A person who has capacity can lawfully refuse treatment even if that treatment is needed to keep them alive. Such a refusal should be followed. The same is generally the case if the person’s refusal is contained in an Advance Care Directive that was completed when they had capacity.
- If the person does not have capacity, their substitute decision-maker can, in some cases, decide to withhold or withdraw treatment. The law on this is more complex and will depend on the guardianship and medical treatment legislation in each state and territory.
- A health professional may be liable under the criminal or civil law if they do not comply with a request to withhold or withdraw treatment.
- A health professional generally has no duty to provide futile treatment, even if it is demanded by a person, their family or substitute decision-makers.