The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 1 (New South Wales)

Abstract

This is the first article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in New South Wales. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in New South Wales.

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This is the author’s version of a work that was submitted/accepted for pub-
lication in the following source:
White, Benjamin P.,Willmott, Lindy,Trowse, Pip, Parker, Malcolm, &
Cartwright, Colleen (2011) The legal role of medical professionals in deci-
sions to withhold or withdraw life-sustaining treatment : Part 1 (New South
Wales). Journal of Law and Medicine,18(3), pp. 498-522.
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1
The legal role of medical professionals in decisions to withhold
or withdraw life-sustaining treatment: Part 1 (New South
Wales)
Ben White, Lindy Willmott, Pip Trowse, Malcolm Parker and Colleen Cartwright
This is the first article in a series of three that examines the legal role of
medical professionals in decisions to withhold or withdraw life-sustaining
treatment from adults who lack capacity. This article considers the position
in New South Wales. A review of the law in this State reveals that medical
professionals play significant legal roles in these decisions. However, the
law is problematic in a number of respects and this is likely to impede
medical professionals’ legal knowledge in this area. The article examines
the level of training medical professionals receive on issues such as
advance directives and substitute decision-making, and the available
empirical evidence as to the state of medical professionals’ knowledge of
the law at the end of life. It concludes that there are gaps in legal knowledge
and that law reform is needed in New South Wales.
INTRODUCTION
Decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity have
complex ethical and clinical dimensions. The various Australian legal frameworks that govern such
decisions are also complex and, in places, uncertain. This can make ascertaining the state of the law
challenging; yet knowledge of the law in this area matters. Given the significant legal role that
medical professionals play in such decisions, it is particularly important for them to know the law in
this area. Without such knowledge, there is a risk of unlawful decision-making, the consequences of
which can be significant for patients, families and the medical professionals themselves.
<DIV>A SERIES OF THREE ARTICLES
This article is the first in a series of three on the topic of withholding and withdrawing life-sustaining
treatment from adults who lack capacity. The authors make four claims in this series. The first is that,
in addition to the involvement of medical professionals in the clinical assessment of the patient and
BenWhite,LLB(Hons)(QUT),DPhil(Oxon),AssociateProfessor,HealthLawResearchProgram,FacultyofLaw,Queensland
UniversityofTechnology;LindyWillmott,BCom,LLB(Hons)(UQ),LLM(Cantab),Professor,HealthLawResearchProgram,
FacultyofLaw,QueenslandUniversityofTechnology;part‐timememberoftheQueenslandCivilandAdministrativeTribunal;
PipTrowse,LLB(QUT),LLM(HealthLaw)(QUT),AssociateLecturer,HealthLawResearchProgram,FacultyofLaw,
QueenslandUniversityofTechnology;MalcolmParker,MBBS(UQ),MLitt(Hons)(UNE),MHealth&MedLaw(UMelb),MD
(UQ),AssociateProfessorofMedicalEthics,UniversityofQueensland;President,AustralasianAssociationofBioethicsand
HealthLaw;ColleenCartwright,BSocWk(Hons)(UQ),MPH(UQ),PhD(UQ),Professor,AgedServices,SouthernCross
University.
Theviewsexpressedinthisarticlearetheauthors’ownandnotthoseoftheorganisationstowhichtheybelong.Theauthors
wishtothankDrMalcolmSmithandShih‐NingThen,whoprovidedresearchassistanceforthisarticle,andGraemeSmith
(ThePublicGuardian,NewSouthWales),EstherCho(LegalOfficer,NewSouthWalesGuardianshipTribunal)andMichelle
Howard(Member,QueenslandCivilandAdministrativeTribunal)fortheircommentsonanearlierversionofthisarticle.Any
errors,ofcourse,remaintheresponsibilityoftheauthors.TheauthorsalsoacknowledgefundingfromtheAustralian
ResearchCouncil’sLinkageProjectScheme(LP0990329)andfromtheproject’ssevenpartnerorganisations:QueenslandCivil
andAdministrativeTribunal,OfficeoftheAdultGuardian(Qld),OfficeofthePublicAdvocate(Qld),NewSouthWales
GuardianshipTribunal,NewSouthWalesTrusteeandGuardian(ThePublicGuardian),VictorianCivilandAdministrative
TribunalandOfficeofthePublicAdvocate(Vic).
Correspondenceto:bp.white@qut.edu.au.

her or his treatment options, they play a significant legal role in the decision-making process. At
times, the treating medical professional may be the legal decision-maker who determines whether
treatment should be provided or not. He or she may also play important legal roles in terms of how
the law is applied, eg through an assessment of a patient’s capacity or by determining who is entitled
to be a substitute decision-maker. Finally, a medical professional’s legal roles include a gatekeeping
function to ensure appropriate treatment decisions are being made.
The second claim is that it is important that medical professionals know the law in this area. They
have important legal roles to play so knowing the law is integral to their being able to fulfil these
roles. A lack of knowledge can lead to non-compliance with the law which, as flagged above and
explored in more detail below, may have adverse consequences for all involved.
The third claim of the series is that there are significant gaps in what medical professionals know of
the law in this area. Only sparse evidence is available but that which exists suggests that medical
professionals’ legal knowledge is inadequate. As part of this inquiry, the extent to which law in this
area is taught in medical schools and other formal training is considered.
The fourth and final claim is that the current state of the law is likely to impede medical
professionals’ knowledge. The law in this area is complex and sometimes uncertain or inconsistent.
Further, the legal position in relation to some issues, although certain, conflicts with good medical
practice. Finally, some judicial and other interpretations of the law have led to outcomes that might be
regarded as unusual or counterintuitive. These features of the law make it challenging for medical
professionals (and others) to ascertain the legal requirements in any given situation. This series of
articles examines the law in three jurisdictions (one in each article): New South Wales, Queensland
and Victoria. These three jurisdictions have been chosen primarily because they have been the subject
of the most judicial and quasi-judicial decision-making in Australia in this field.1
This series of articles ultimately reaches two conclusions. The first is that law reform is needed.
While the ease with which the law can be stated and known is not the sole criterion for reform, it is
relevant when designing a legal framework. This is particularly so if it is expected that a group of
legally untrained people such as medical professionals will need to know and apply the law. Although
enhancing medical professionals’ legal knowledge is a complex issue, improving the state of the law
is likely to help.
The second conclusion is that more and better education of medical professionals is needed. These are
important decisions and ways need to be found to support medical professionals involved in them to
be aware of the legal framework. Consideration should be given to enhancing medical schools’
engagement with these issues and also to the ongoing training available to medical professionals after
university.
<DIV>THE FIRST ARTICLE
The first article in this series is comprised of five parts. After the introduction in the first part, the
second part sets the scene for the series as a whole and begins by establishing why medical
professionals’ knowledge of the law in this area matters. Of particular significance is that compliance
1InNewSouthWales,seeegHunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88;KrommydasvSydney
WestAreaHealthService[2006]NSWSC901;MessihavSouthEastHealth[2004]NSWSC1061;NorthridgevCentralSydney
AreaHealthService(2000)50NSWLR549;WKvPublicGuardian(No2)[2006]NSWADT121;BAH[2007]NSWGT1(this
decisionwaspreviouslyknownasReAG[2007]NSWGT1);FIvPublicGuardian[2008]NSWADT263;LEandLFvPublic
Guardian[2009]NSWADT78;QAN[2008]NSWGT19.
InQueensland,seeegQueenslandvAstill(unrep,SupCt,Qld,MuirJ,18January2006);ReBridges[2001]1QdR574;ReSAJ
[2007]QGAAT62;ReMHE[2006]QGAAT9;ReHG[2006]QGAAT26;ReMC[2003]QGAAT13;ReTM[2002]QGAAT1;Re
RWG[2000]QGAAT2;RePVM[2000]QGAAT1.
InVictoria,seeegQumsiehvPilgrim(2000)21(4)LegRepSL3d(29October1999,11February2000);Qumsiehv
GuardianshipandAdministrationBoard[1998]VSCA45;QumsiehvGuardianshipandAdministrationBoard(unrep,SupCt,
Vic,BeachJ,7May1998);SlaveskivAustinHealth[2010]VSC493;ReHerrington[2007]VSC151;ReBWV;ExparteGardner
(2003)7VR487;BK(Guardianship)[2007]VCAT332;Korp(Guardianship)[2005]VCAT779;EK(Guardianship)[2005]VCAT
2520;PublicAdvocatevRCS(Guardianship)[2004]VCAT1880.

with the law can be difficult in the absence of knowledge of it, and a failure to know and comply with
the law can have serious consequences. The medical and legal factors that affect how these decisions
are made are then examined. In the medical context, there are a range of situations where decisions to
withhold or withdraw life-sustaining treatment can arise. One is where it is medically appropriate for
treatment to be offered, although this category covers a spectrum of situations, as explained in this
part. The other two medical situations are where the provision of the treatment is futile and where a
decision to withhold or withdraw needs to be made in an emergency. The legal context involves
considering how the law will apply in each of these three situations. The authors outline the relevant
decision-making framework, which is primarily established by the guardianship legislation and has
similar features across all three jurisdictions. The purpose of this part is to establish this wider
foundation which will be drawn upon in this article and the two that follow.
The third part of the article then examines the law in New South Wales. It reviews the guardianship
legislation and the Supreme Court’s parens patriae jurisdiction as they apply to the three medical
situations noted above. Of particular significance for this article, with its focus on legal knowledge of
medical professionals, is to identify their relevant legal roles within those frameworks. This part also
outlines the key problems in the law in this area.
The fourth part considers the limited empirical evidence available in New South Wales as to what
medical professionals know of the law in this area. The authors are aware of only one study that has
specifically examined this question, and it revealed deficiencies in medical professionals’
understanding of the relevant legal decision-making framework. The extent to which medical
professionals receive formal training on this topic both at and after medical school is also considered.
The article concludes by calling for law reform in New South Wales. Wider conclusions that span the
series of articles, eg in relation to the need for more and better medical education, are considered in
the third article.
<DIV>TERMINOLOGY
One of the unsatisfactory consequences of States having different legislative regimes is the use of
different terms for similar concepts. The key terminology in New South Wales, Queensland and
Victoria for this series of articles is set out in Table 1, along with the generic term that is used when
each concept is referred to generally.
Table 1 Key terminology, by State
Generic term New South Wales Queensland Victoria
Adult (who now lacks capacity) Patient, person under
guardianship, person in need
of a guardian, or appointor
Adult or principal Patient, represented
person, donor or
appointor
Advance directive Advance directive
(recognised at common law
only)
Advance health
directive Refusal of treatment
certificate
Guardian (namely, a decision-
maker appointed by the tribunal) Guardian Guardian Guardian
Agent (namely, a decision-maker
appointed by the adult) Enduring guardian Attorney Agent or enduring
guardian
Default decision-maker* Person responsible Statutory health
attorney Person responsible
* The term “person responsible” in New South Wales and Victoria is broader in scope than just a
default decision-maker and this is discussed further in this article and in the third article.
Generally, when the law in a specific State is being examined, the relevant terminology of the
jurisdiction is used. The one exception to this is references to the “adult”. Given that there are a range

of different terms across the three States, an adult patient who lacks capacity from whom treatment
may be withdrawn or withheld is referred to as the “adult”.2 The term “substitute decision-maker” is
used as a generic term to cover all individuals who are authorised to make decisions on behalf of an
adult.
MEDICAL PROFESSIONALS’ LEGAL ROLE AND THE CONTEXT OF DECISIONS
TO WITHHOLD OR WITHDRAW LIFE-SUSTAINING TREATMENT
The purpose of this part of the article is to establish the foundation for the series of three articles.
Before considering the medical context and the broad legal framework in which decisions to withhold
or withdraw life-sustaining treatment from adults who lack capacity occur, the threshold issue of why
medical professionals’ knowledge of the law matters is considered.
<DIV>WHY MEDICAL PROFESSIONALS’ KNOWLEDGE OF THE LAW MATTERS
Medical professionals play a significant role in end-of-life decisions. They manage the patient’s care
and treatment and this includes providing information and advice about treatment options, risks and
prognosis. But medical professionals also play significant legal roles. These are discussed in more
detail over the course of this series of articles but critical legal functions include:
 the assessment of capacity;
 the identification of possible decision-makers (which can include the medical professional
herself or himself); and
 determining whether a possible decision-maker possesses the legal power to make the
relevant decision.
To fulfil these legal roles adequately, medical professionals need to know the law. Without
knowledge of the relevant legal framework, compliance with the law by the medical professional may
be difficult. Although it is possible, and often likely, that compliance with good medical practice and
ethical obligations will also lead to legal compliance, this cannot be assumed. Indeed, as this series of
articles shows, legal compliance will not always follow from adhering to sound medical and ethical
practice because, at times, the law departs from such practice.3
Broadly speaking, a failure to comply with the law can occur in two ways in this area. Significant
consequences for patients can flow from unlawful decisions in relation to both. The first situation is
where life-sustaining treatment is unlawfully withheld or withdrawn. This could arise, eg, where the
legal criteria for not providing treatment are not satisfied. It could also arise where the legal authority
relied upon to not provide treatment is flawed because the purported decision-maker lacks legal
authority. For patients, the outcome of such decisions is that, at least as a matter of law, their lives are
being ended wrongly.
The second situation is where life-sustaining treatment is provided unlawfully. This can occur where
treatment is provided despite a lawful refusal of treatment through an advance directive or by a
substitute decision-maker. Again, this has significant implications for patients in that it may infringe
their legal rights, including their right to bodily integrity.4 The provision of such treatment can also
cause patients to survive with a poor quality of life, a situation that they had sought to avoid.5
The unlawful provision or withholding and withdrawing of life-sustaining treatment also has
significant consequences for medical professionals. There is potential for criminal responsibility to be
2Despitetheuseoftheterm“adult”,itisnotedthatinNewSouthWales,theGuardianshipAct1987(NSW)appliesinsome
respectstopersonsaged16yearsandolder.However,thisarticleonlyaddressesthelawsofarasitrelatestoadults.
3Non‐compliancewiththelawmayalsooccurwheremedicalpracticeisshapedbylegallyinaccurateguidelinesorpolicy:
ParkerMetal,“TwoStepsForward,OneStepBack:AdvanceCarePlanning,AustralianRegulatoryFrameworksandtheAMA”
(2007)37(9)InternalMedicineJournal637at637‐643.
4Parkeretal,n3at640.
5GilliganTandRaffinTA,“WhoseDeathIsIt,Anyway?”(1996)125(2)AnnalsofInternalMedicine137.

imposed for murder or manslaughter (where treatment is withheld or withdrawn inappropriately)6 or
for assault (where treatment is provided without appropriate consent or authorisation).7 And a lack of
knowledge of the law will not excuse a medical professional from criminal responsibility.8 Claims of
civil liability may also flow from such actions, along with disciplinary or coronial proceedings.9
In addition to issues of legal compliance, a lack of knowledge of the law may also lead to conflict at
the end of life. This may occur where medical professionals and family or friends have different
understandings of the law and what it requires in any given situation. A lack of legal knowledge by
medical professionals can also mean that conflicts that do arise are not resolved as expeditiously as
possible.10 A recent New South Wales Health report, Conflict Resolution in End of Life Settings,
noted the significant adverse consequences that conflict has for patients, family and the health
professionals involved, as well as the burden on the health system as a whole.11
The foregoing discussion shows why knowledge of the law in this area matters by pointing to a range
of adverse consequences that can arise where medical professionals’ legal knowledge is lacking. But
also contributing to the significance of this issue is that decisions to withhold and withdraw life-
sustaining treatment are part of mainstream medical practice.12 The authors estimate that over 30,000
adult deaths occur each year across New South Wales, Queensland and Victoria (and almost 40,000
deaths nationally) following a medical decision to withhold or withdraw life-sustaining treatment.13
There would also be many thousands of decisions where this area of law was engaged but death did
not occur, eg where a decision to withhold or withdraw treatment was contemplated but ultimately
not made. It is important that medical professionals know the law in this area not only because a
failure to do so can have adverse consequences, but also because the need for this legal knowledge
arises frequently in practice.
The authors acknowledge the argument that, in some cases, an unlawful decision may produce the
most desirable outcome (however and by whom this is defined) for the patient. The argument
continues that absolute priority should be the care of the patient and that law can sometimes impede
best practice. The authors accept that this argument has force, but consider that it is accompanied by
serious and unacceptable risks. This view implies selective compliance with law by medical
6WillmottL,WhiteBandThenS‐N,“WithholdingandWithdrawingLife‐sustainingMedicalTreatment”inWhiteB,McDonald
FandWillmottL(eds),HealthLawinAustralia(ThomsonReuters,Sydney,2010)at[13.20].
7Secretary,DepartmentofHealthandCommunityServices(NT)vJWBandSMB(Marion’sCase)(1992)175CLR218at232
(MasonCJ,Dawson,TooheyandGaudronJJ);HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[40].
Notealsothatthevariousguardianshipandotherlegislationcreatesspecificoffencesforprovidingtreatmentwithout
appropriateconsentorauthorisation:GuardianshipAct1987(NSW),s35;GuardianshipandAdministrationAct2000(Qld),s
79;MedicalTreatmentAct1988(Vic),s6.SeealsoGuardianshipandAdministrationAct1986(Vic),s41andanumberof
otherprovisionsinPt4A,contraventionofwhichareoffencespursuanttothegeneralpenaltyprovisionins80.
8BronittSandMcSherryB,PrinciplesofCriminalLaw(3rded,ThomsonReuters,2010)at[3.310].
9Inrelationtocoronialproceedings,seeInquestintotheDeathofPauloMelo[2008]NTMC080andInquestintotheDeathof
JuneWoo(unrep,Coroner’sCourt,Qld,StateCoronerBarnesSM,1June2009).Ineachcase,itwasconcludedthatthe
treatingteamgaveappropriatecare,althoughintheWoodecision,BarnesSMnoted(p23)thatafailuretoinitiallyobtain
therelevantconsentasrequiredunderQueensland’sguardianshiplegislationmayhavehad“significantlegalconsequences”
ifMrsWoohaddiedbeforeconsentwaslaterobtained..SeeParkerM,“FutileChoices:WooingDoctorstoAcknowledgethe
LawinQueensland”in“BioethicalIssues”(2010)18JLM32.
10Inseekingtoreduceconflictattheendoflife,ithasbeenrecommendedthatmedicalprofessionals’knowledgeofthelaw
inthisareabeenhanced:NewSouthWalesHealth,ConflictResolutioninEndofLifeSettings(CRELS):FinalCRELSProject
WorkingGroupReport(2010)pp31‐32.
11NewSouthWalesHealth,n10,p9.
12SeeWhiteB,WillmottLandAllenJ,“WithholdingandWithdrawingLife‐sustainingTreatment:CriminalResponsibilityfor
EstablishedMedicalPractice?”(2010)17JLM849.
13KuhseHetal,“End‐of‐lifeDecisionsinAustralianMedicalPractice”(1997)166MJA191;AustralianBureauofStatistics,
Deaths,Australia(2009).ThisconclusionisbasedonthepercentageofallAustraliandeathsthatoccurfollowingadecisionto
withholdorwithdrawlife‐sustainingtreatment(28.6%)coupledwiththenumberofadultdeaths(personsaged20andover)
eachyearacrossNewSouthWales,QueenslandandVictoria(andnationally).Itisnotedthattheabovefiguresinclude
decisionsinrelationtobothadultswithandwithoutcapacityasitisnotpossiblefromthesesourcestodeterminehowoften
thesedecisionsaremadeinrelationtoadultswholackcapacity.

professionals or others based on their own assessment of what the best outcome is for that patient. As
noted above, how this is defined and by whom is not uncontested. Such an approach also denies
adults lacking capacity, who are a vulnerable cohort of persons, the protection of legal safeguards. It
is significant that most of these legal protections are located in the various pieces of State
guardianship legislation. That legislation, which is the product of Parliament, is said to reflect our
community values through our elected representatives. Excusing non-compliance with the chosen
legal framework sits awkwardly with our notions of the rule of law. The authors consider that the
appropriate response to these concerns is to reform the law; indeed, how that might be done is an
issue grappled with in this series of articles.
<DIV>CONTEXT OF DECISION-MAKING: MEDICAL CONTEXT AND LEGAL DECISION-
MAKING MECHANISMS
Having outlined why medical professionals’ knowledge of the law matters, the authors consider now
the context in which decisions to withhold or withdraw life-sustaining treatment occur. This context
provides a foundation for all three articles and is referred to throughout this series. What the law
requires in relation to such decisions depends on two variables:
 the medical context, including the condition of the adult; and
 the relevant legal decision-making mechanism that applies.
<subdiv>Medical context
The authors have identified three categories of situations that arise at the end of life where the
medical context has implications for how the law will apply:
 where the medical professional considers offering life-sustaining treatment to be medically
appropriate;
 where the medical professional considers life-sustaining treatment to be futile; and
 where an urgent decision about whether or not to provide life-sustaining treatment is
required.
<group>Category 1: Medical professional considers offering life-sustaining treatment
to be medically appropriate
Category 1 applies to cases where a medical professional will offer life-sustaining treatment to an
adult because he or she considers it to be medically appropriate. This category covers a wide
spectrum of situations. At one end of the spectrum, a medical professional might not only offer
treatment but strongly recommend that the treatment be given. At the other end of the spectrum,
although of the view that offering the treatment may still be medically appropriate, a medical
professional may nevertheless recommend that it not be accepted perhaps because of wider non-
medical considerations. Cases will also arise that fall somewhere in the middle. For example, an
adult’s condition may be such that a medical professional considers accepting the offered life-
sustaining treatment as a reasonable course of action, but also regards as reasonable a decision not to
accept that treatment. Depending on a medical professional’s values, an illustration of this situation
may be Example A.
<blockquote>
Example A
Mrs V is 83 and lives in an aged care facility. She has had diabetes for many years, which has been well
controlled. The nursing staff detect evidence of gangrene developing in the toes of one foot. After
examining Mrs V, the medical professional who visits advises Mrs V that this is an eventually life-
threatening condition, which will progress without treatment. At this early stage, treatment would consist of
a minimal amputation procedure. Failure to act now would necessitate a larger and more risky procedure in
the future. Mrs V must decide between going to hospital for the procedure, or remaining in the nursing
home with regular nursing attention to the gangrenous foot. She elects to remain where she feels safe and
cared for, in spite of being aware of the risks of this choice. The gangrene inevitably spreads, until her entire
leg to the mid-thigh is black and has an offensive odour. At this point, Mrs V develops a fever, and becomes
somewhat delirious, certainly past the point of having decision-making capacity. The medical professional

is not certain, but suspects that the gangrenous tissue is the likely source of infection. Another decision must
be made.
</blockquote>
The treatment decision that needs to be made now that Mrs V has lost capacity is whether potentially
life-sustaining treatment (namely the amputation) should be provided, or that treatment be withheld
and Mrs V receive palliative care.
<group>Category 2: Medical professional considers life-sustaining treatment to be
futile
In some cases, a medical professional may believe, on a considered clinical basis, that life-sustaining
treatment is not medically appropriate and so should be regarded as futile.
<blockquote>
Example B
Mr J is in the final stages of terminal cancer and is being given palliative care in a hospital. The effects of
his illness and some of his medications are such that he is no longer able to make health care decisions for
himself. The treating team meets to decide if Mr J should be resuscitated if he suffers a cardiac arrest, a
distinct possibility given his medical condition. Attempts to resuscitate him may be successful in that his
heart may start beating again. However, it is more likely that Mr J will not respond to the treatment and,
even if he does, he is unlikely to retain consciousness and will be in a compromised medical condition until
death, which is likely to occur within days. Further, there are likely to be burdens associated with this kind
of treatment. Mr J, already emaciated, may suffer extensive soft tissue bruising or broken ribs, with the
associated discomfort or pain, from the vigorous efforts to restart his heart.
</blockquote>
If the treating team regards this treatment as futile, they may consider that it should not be provided.
It is noted that the meaning of “futile” or “futility” is contested (the same could be said of the term
“medically appropriate” used above) and there have been calls for greater clarification as to what is
meant by these terms.14 Nevertheless, for the purposes of this series of articles, treatment will be
regarded as futile when there is a medical consensus to this effect.
<group>Category 3: Urgent decision about life-sustaining treatment is required
In some cases, a decision about whether to provide life-sustaining treatment must be made as a matter
of urgency.
<blockquote>
Example C
Mrs F is an elderly woman who is seriously ill and is being cared for at home. She collapses at home and
her daughter calls the local medical practice. Mrs F’s regular medical professional is unavailable and a new
medical professional attends the emergency. “I’m sorry, I shouldn’t have called you, but I panicked,” says
the daughter, as the medical professional rushes through the front door. “Mum said that if anything like this
happened, not to do anything.” Unless the medical professional mechanically supports Mrs F’s breathing
and circulation, she will die.
</blockquote>
There is not sufficient time for the medical professional to establish whether the views expressed by
the daughter actually reflect her mother’s wishes, whether an advance directive exists, or an order
appointing a decision-maker or dictating treatment has been made by a guardianship tribunal or any
other body. An immediate treatment decision needs to be made. Expressly excluded from this
category are those decisions that are urgent but where legal decision-making arrangements are in
place, known about and capable of being utilised.
<subdiv>Relevant legal decision-making mechanism
14SeeegKerridgeIetal,“DefiningMedicalFutilityinEthics,LawandClinicalPractice:AnExerciseinFutility?”(1997)4JLM
235;RapoportJetal,“CanFutilitybeDefinedNumerically?”(1998)26(11)CriticalCareMedicine1781at1782;NevinsMA,
“It'sTimetoGetSeriousAboutDefiningFutility”(1994)9(1)TrendsHealthCareLawEthics31at32,36;SchneidermanLJet
al,“MedicalFutility:ItsMeaningandEthicalImplications”(1990)112(12)AnnalsofInternalMedicine949.

The second factor that affects how the law applies to a particular situation is which of the seven
possible decision-making mechanisms discussed below are relevant. Who the decision-maker is, or
what the decision-making mechanism is, in a given situation will depend on the particular
circumstances of the case.
<group>The adult has completed an advance directive
At common law and pursuant to legislation in Queensland and Victoria, an adult is able to give a
direction about treatment in the future which operates after he or she loses capacity to make the
relevant decision. At common law, such a direction will generally be binding on a medical
professional and will act as consent to receive treatment or as a lawful refusal of life-sustaining
treatment. The extent to which such a direction will be binding under the statutory frameworks in
Queensland and Victoria depends on compliance with the various legislative conditions.
<group>A person has been appointed by the tribunal to make health care decisions
on the adult’s behalf
The guardianship legislation in all three jurisdictions provides for the appointment by a tribunal of a
person to make health decisions on behalf of the adult. That tribunal will be the Guardianship
Tribunal (in New South Wales), the Queensland Civil and Administrative Tribunal or the Victorian
Civil and Administrative Tribunal. Depending on the nature of that appointment (and the relevant
jurisdiction), that authority can extend to making a decision about whether treatment should be
withheld or withdrawn. Indeed, sometimes such appointments are made in specific contemplation of a
forthcoming end-of-life decision. The criteria upon which such a decision is made and the safeguards
that operate will generally be different from those that exist where the adult’s decision is incorporated
in an advance directive.
<group>The adult has appointed an agent to make health care decisions on the
adult’s behalf
New South Wales, Queensland and Victoria allow an adult who has capacity to appoint a person to
make health care decisions, if the adult later loses capacity. Depending on the jurisdiction, this person
will be an “enduring guardian”, “attorney”, or “agent”. Whether or not that authority will extend to
decisions about withholding or withdrawing life-sustaining treatment depends on the powers that are
conferred on the agent. Again, the legislation prescribes the criteria which should govern such a
decision and any safeguards that apply.
<group>A person is nominated by the legislation as health care decision-maker
(“default decision-maker”)
The completion of an advance directive or the appointment by an adult of someone to make health
care decisions on her or his behalf is not commonplace.15 It is also comparatively rare that a tribunal
appoints a person to make health care decisions on behalf of an adult. In response to that, the
legislation in all three jurisdictions establishes a default position under which a person who is close to
the adult is nominated by the legislation to make decisions about health care. The extent of such a
person’s power differs between the three jurisdictions so this “default decision-maker” does not
always have the power to refuse life-sustaining treatment.
<group>Decision by a statutory official
A statutory official may, depending on the jurisdiction, be appointed or nominated in some or all of
the above roles to make decisions about health care. The relevant statutory officials are the Public
Guardian, the Adult Guardian and the Public Advocate in New South Wales, Queensland and
Victoria respectively.
In addition, the Queensland legislation provides for the Adult Guardian to resolve difficult situations
that might occur within the decision-making framework. For example, in some cases where the
15PrendergastTJ,“AdvanceCarePlanning:Pitfalls,Progress,Promise”(2001)29(2)CriticalCareMedicineN34;BezzinaAJ,
“PrevalenceofAdvanceCareDirectivesinAgedCareFacilitiesoftheNorthernIllawarra”(2009)21(5)EmergencyMedicine
Australasia379;NairBetal,“AdvanceCarePlanninginResidentialCare”(2000)30(3)AustralianandNewZealandJournalof
Medicine339.

substitute decision-maker is not complying with the relevant criteria, the Adult Guardian may have
power to become the decision-maker, even in relation to a decision about withholding or withdrawing
life-sustaining treatment.
<group>Order of the tribunal
In some cases, often where there is some conflict about the decision to be made, the relevant tribunal
may be called upon either to make a decision about whether treatment should be withheld or
withdrawn, or to appoint a person to make such a decision.
<group>Order of the Supreme Court exercising its parens patriae jurisdiction
The Supreme Court, pursuant to its parens patriae jurisdiction, may decide whether life-sustaining
treatment should be withdrawn or withheld from an adult who lacks capacity. In these cases, the court
must determine the best interests or welfare of the adult involved.
THE LAW IN NEW SOUTH WALES
The authors consider now how the foundation established above applies to the law in New South
Wales. Particular consideration is given to the role that is played by the medical professional in each
decision-making situation.
<DIV>GUARDIANSHIP LAW IN NEW SOUTH WALES
<subdiv>The legal framework: An overview
The relevant legislation in New South Wales is the Guardianship Act 1987 (NSW).16 It facilitates the
appointment of a guardian and an enduring guardian to make decisions about health care or to consent
to medical or dental treatment. Whether such a decision-maker is able to refuse life-sustaining
treatment will depend on the scope of her or his appointment. The legislation also facilitates a “person
responsible” consenting to “medical treatment” for an adult who lacks capacity. “Medical treatment”
is defined to mean:17
<blockquote>
medical treatment (including any medical or surgical procedure, operation or examination and any
prophylactic, palliative or rehabilitative care) normally carried out by or under the supervision of a medical
practitioner …
</blockquote>
The Guardianship Act 1987 (NSW) does not prescribe a statutory regime for an adult making an
advance directive and the common law will continue to apply in this regard.18 An adult who still has
capacity, therefore, can make decisions about withholding or withdrawing life-sustaining treatment in
an advance directive that will operate if he or she later loses capacity.
The law governing substitute decision-making in New South Wales has been reviewed recently in the
Legislative Council’s Standing Committee on Social Issues report Substitute Decision-making for
People Lacking Capacity. The report considered a range of issues relevant to this article, including
how capacity is defined, medical consent and end-of-life decision-making.19 Of significance is that
the Committee recommended that the law that governs advance directives and end-of-life decision-
making generally be referred to the New South Wales Law Reform Commission for its
consideration.20
<subdiv>Capacity
16Notethatalthoughadvancedirectivesatcommonlaw(asopposedtothoserecognisedbystatute)mightberegardedas
fallingoutside“guardianshiplaw”,theyarediscussedbelowunderthisheadingforeaseofreference.
17GuardianshipAct1987(NSW),s33(1)(a).
18HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88.
19NewSouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,SubstituteDecision‐makingfor
PeopleLackingCapacity(2010)Chs4,12.
20NewSouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19at[12.82]‐[12.83].

As this article deals with withholding and withdrawing life-sustaining treatment from adults who lack
capacity, determining that capacity is a threshold issue. The starting point is to note that there is a
presumption at common law that an adult has capacity21 and that this presumption has not been
disturbed by the guardianship legislation.22
Part 5 of the Guardianship Act 1987 (NSW), which deals with substituted consent to medical and
dental treatment, applies when an adult is “incapable of giving consent”.23 This occurs if the adult:24
<blockquote>
(a) is incapable of understanding the general nature and effect of the proposed treatment; or
(b) is incapable of indicating whether or not he or she consents or does not consent to the treatment being
carried out.
</blockquote>
However, as will be seen below, Pt 5 applies only to consent to treatment and so does not extend to
withholding and withdrawing life-sustaining treatment.25 Perhaps the more important definition in this
context is, therefore, whether an adult is “in need of a guardian”. This is the threshold for the tribunal
to appoint a guardian26 and the point at which the appointment of an enduring guardian can have
effect27 and both of these decision-makers, if appointed with the relevant functions, can have power to
withhold or withdraw treatment. A person is in need of a guardian when he or she, “because of a
disability, is totally or partially incapable of managing his or her person”.28 A person will have a
“disability” for the purposes of this Act when he or she is “restricted in one or more major life
activities to such an extent that he or she requires supervision or social habilitation” and this arises by
virtue of one of the listed impairments which include being intellectually, physically, psychologically
or sensorily disabled, or being of advanced age.29 The possible tensions between these different
statutory conceptions of capacity have been noted.30
Finally, because advance directives are dealt with under the common law in New South Wales,
presumably the common law definition of capacity will apply as to when the adult cannot make her or
his own decisions and so the directive becomes operative. In Hunter and New England Area Health
Service v A (2009) 74 NSWLR 88 at [25], McDougall J described the test at common law for when an
adult will be found to lack capacity as where the adult:
<blockquote>
(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the
consequences of the decision; or
(2) is unable to use and weigh the information as part of the process of making the decision.
</blockquote>
<group>Role of medical professional
21HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[23].
22ReTAC[2010]NSWGT23at[11].
23GuardianshipAct1987(NSW),s34(1)(b).
24GuardianshipAct1987(NSW),s33(2).
25Note,however,thatthepowertoconsentcarrieswithitthepowertowithholdthatconsent.Thisisdiscussedfurther
belowat15‐16.
26GuardianshipAct1987(NSW),s14(1).
27GuardianshipAct1987(NSW),s6A(1)(a).
28GuardianshipAct1987(NSW),s3.Astowhatthisphrasemeansandsomeofitsproblems,seeNewSouthWales
Parliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19,Ch4.
29GuardianshipAct1987(NSW),s3(2).
30HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[39].

A medical professional will need to assess whether an adult has capacity to make her or his own
decisions about health care, and in this context, whether that capacity extends to decisions to withhold
or withdraw life-sustaining treatment. If not, then the guardianship legislation applies, and the
medical professional will need to know the relevant statutory definition of capacity and determine
whether it is met (except where the tribunal has appointed a guardian, and therefore a determination
of incapacity has already been made). The medical professional will also need to be aware of the
common law definition of capacity if there is an advance directive which is purporting to refuse life-
sustaining treatment.
<subdiv>Category 1: Medical professional considers offering life-sustaining
treatment to be medically appropriate
The remainder of this Part revisits, from the perspective of the law in New South Wales, the three
categories of medical context which were outlined above. Each category is considered in turn along
with the applicable legal decision-making mechanisms.
<group>The adult has completed an advance directive
Statutory advance directives are not provided for by the Guardianship Act 1987 (NSW).31 This means
that recognition of advance directives falls to the common law. Given the state of authority in other
common law jurisdictions,32 it was assumed that advance directives would be recognised by the
Australian common law and this was confirmed by the recent decision of the New South Wales
Supreme Court in Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. This
case involved a Jehovah’s Witness, Mr A, being kept alive by mechanical ventilation and kidney
dialysis. In the course of his treatment, the New England Area Health Service became aware of a
document prepared (but not signed) by Mr A which indicated that he wished to refuse kidney dialysis.
Proceedings were commenced by the Area Health Service seeking declarations, including one that the
document was a valid advance directive. McDougall J concluded (at [40]) that it was such a directive
and that the dialysis could therefore not be provided.
The common law will recognise an advance directive as binding if it is valid and applicable to the
relevant circumstances.33 An advance directive will be valid if two conditions are met. First, the adult
must have been competent at the time the directive was given, and there is a presumption that he or
she was.34 Secondly, the adult must have been free of undue influence at the time the directive was
made.35 Suggestions that there is a third requirement for validity,36 namely that a person has to receive
sufficient information before completing the advance directive, were rejected in Hunter and New
England Area Health Service v A (at [28]-[30], [40] (McDougall J)).37
An advance directive will be applicable if it was intended by the adult to operate in the circumstances
that have later arisen.38 Commentators have identified four categories of situation from the limited
31AlthoughnotethesuggestionthattheActprovidesforsomelimitedrecognitionofadvancedirectivesbywayofthe
“objection”provisions:HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[39].
32SeeegMalettevShulman(1990)67DLR(4th)321;ReT(Adult:RefusalofTreatment)[1993]Fam95;ReC[1994]1WLR
290;HEvAHospitalNHSTrust[2003]2FLR408;WHealthcareNHSTrustvH[2005]1WLR834.
33SeeegMalettevShulman(1990)67DLR(4th)321;AiredaleNHSTrustvBland[1993]AC789at864(LordGoff);ReT(Adult:
RefusalofTreatment)[1993]Fam95at103(LordDonaldsonMR);ReC(Adult:RefusalofMedicalTreatment)[1994]1WLR
290at294‐295(ThorpeJ);HEvAHospitalNHSTrust[2003]2FLR408at414‐415(MunbyJ);WHealthcareNHSTrustvH
[2005]1WLR834at[15](BrookeLJ);HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[40]
(McDougallJ).Foramoredetaileddiscussionofwhenanadvancedirectivewillbevalidandapplicable,seeWillmottL,White
BandMathewsB,“Law,AutonomyandAdvanceDirectives”(2010)18JLM366.
34HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[26],[40](McDougallJ).
35HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[26],[40](McDougallJ);ReT(Adult:Refusalof
Treatment)[1993]Fam95at121(StaughtonLJ).
36SeeegKennedyIandGrubbA,MedicalLaw(3rded,2000)pp2037‐2038.
37CompareBrightwaterCareGroup(Inc)vRossiter[2009]WASC229at[49](MartinCJ).NotealsoHLtdvJ[2010]SASC176
at[37]‐[44](KourakisJ).
38HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[26],[40](McDougallJ);ReT(Adult:Refusalof
Treatment)[1993]Fam95at114(LordDonaldsonMR).

case law where a directive may not reveal such an intention, and they include where circumstances
have changed or where the directive is uncertain or ambiguous.39
<subgroup>Role of medical professional
Where an adult has completed an advance directive, the medical professional needs to assess its
validity and applicability. He or she will need to consider whether the completion of the directive was
subject to undue influence or occurred when the adult lacked capacity (but noting the presumption
that he or she did have capacity). The medical professional will also need to consider whether the
terms of the directive were intended to apply to the current circumstances. This would include
consideration of the terms of the directive and whether there is anything that should prevent it from
being followed, such as a change in the adult’s circumstances since the directive was completed. If
the advance directive is valid and applicable, the medical professional will need to accept that refusal
of treatment. If there is “genuine and reasonable doubt” as to these matters, then the medical
professional may need to apply to the courts for a determination.40
<group>A person has been appointed by the Guardianship Tribunal to make health
care decisions on the adult’s behalf
The Guardianship Tribunal may appoint a plenary or limited guardian for an adult who lacks
capacity.41 The tribunal must not make a plenary order if a limited guardianship order would be
sufficient.42 If the tribunal does make a plenary order, the guardian will be conferred with “all the
functions of a guardian of that person that a guardian has at law or in equity”.43 This power is broad
enough to include a power to refuse life-sustaining treatment.44
If a limited order is made, the guardian will be given specified functions. Such functions can include
deciding the health care that the adult is to receive, or giving consent to the carrying out of medical or
dental treatment for the adult. An important issue for the purpose of this article is whether a person
who is given a limited appointment with the functions of “health care” or “medical and dental
consent” will have power to refuse life-sustaining treatment. As will be seen below, of relevance to
this issue is Pt 5 of the Guardianship Act 1987 (NSW), which facilitates consent being given by a
person responsible for medical and dental treatment to be provided to the adult. “Person responsible”
is defined to include the adult’s guardian if the order appointing the guardian provides for her or him
to exercise the function of giving consent to the carrying out of medical or dental treatment for the
adult.45
The powers of a guardian conferred with functions in relation to health care and medical and dental
consent have been considered in a series of three important decisions. It is beyond the scope of this
article to consider these decisions in any detail. However, it is important to outline the different
approach taken in each case. The first was a decision of the New South Wales Administrative
Decisions Tribunal, WK v Public Guardian (No 2) [2006] NSWADT 121. The tribunal held that the
functions conferred on the guardian to make decisions about health care and to consent to medical
and dental treatment were insufficient to allow the guardian, in this case the Public Guardian, to agree
to the withdrawal of dialysis as part of a broader treatment plan for a 73-year-old man who had end-
stage kidney disease and was suffering from dementia. This decision was criticised and concerns were
expressed about the decision-making gap that would follow from this decision if the best medical
39ThesecategoriesarediscussedingreaterdetailinWillmottL,WhiteBandHowardM,“RefusingAdvanceRefusals:
AdvanceDirectivesandLife‐sustainingMedicalTreatment”(2006)30MULR211at222‐224.
40HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[40].
41GuardianshipAct1987(NSW),ss14,16.
42GuardianshipAct1987(NSW),s15(4).
43GuardianshipAct1987(NSW),s21(1)(b).
44SeethewideinterpretationgiventothisterminFIvPublicGuardian[2008]NSWADT263at[47].
45GuardianshipAct1987(NSW),s33A(a).“Personresponsible”alsoincludesanenduringguardianappointedbytheadult.
Thisappointmentisconsideredinmoredetailbelowat15‐16.

practice in a particular case is to withdraw or withhold active treatment measures and to provide
appropriate palliative care.46
In a subsequent case (BAH [2007] NSWGT 1),47 and notwithstanding the above decision of the
Administrative Decisions Tribunal, the Guardianship Tribunal took a different view and held that the
medical consent function allowed a guardian to refuse medical treatment. The Tribunal decided that
the guardian in this case was able to consent to a palliative care plan which included a decision to
withhold cardio-pulmonary resuscitation and to withdraw dialysis.
The third in this series of cases is the decision of the New South Wales Administrative Decisions
Tribunal in FI v Public Guardian [2008] NSWADT 263. This decision also considered the powers
conferred on the Public Guardian who had functions in relation to health care and to consent to
medical and dental treatment. A different approach was taken by the tribunal in this case. It held that
the power to consent to medical and dental treatment that is conferred by Pt 5 of the Act did not
extend to authorising the withholding or withdrawing of treatment from an adult. Part 5 contemplated
only the giving of consent to “proactive medical interventions” (at [40]). The tribunal held, however,
that the power of a guardian to make health decisions was sufficient to allow decisions to be made to
withdraw or withhold life-sustaining treatment.
The approach taken in FI v Public Guardian has been adopted by both the Guardianship Tribunal and
the Administrative Decisions Tribunal in subsequent cases.48 As a result, it appears now established
that a limited guardian with a function in relation to health care, as well as a plenary guardian, will
have power to refuse life-sustaining treatment. By contrast, a guardian with a function only in relation
to consent to medical or dental treatment will not have such power. Such a guardian will, however, be
able to withhold her or his consent to treatment and this may result in the treatment not being given.
This distinction between withholding consent to treatment and refusing that treatment is discussed
further below in the context of the person responsible as a default decision-maker.49
<subgroup>Criteria applicable to the decision
The Administrative Decisions Tribunal in FI v Public Guardian gave some guidance as to what
factors a guardian should consider in exercising a function in relation to health care. The tribunal
expressed the view that a specified function in a limited guardianship order “should be interpreted in
accordance with what is permitted by law or in equity in relation to the kind of conduct that is the
subject of the specified function” (at [47]). In the context of a decision about health care, it was
observed that the duties imposed on medical professionals under the general law to provide treatment
“rest on consideration of what is in the patient’s best interests for the purpose of preservation of life”
(at [46]). The tribunal further observed, however, that the duty does not require treatments that are
“therapeutically ineffective, or are extraordinary, excessively burdensome, intrusive or futile” (at
[46]).
As well as these factors under the general law that were regarded as relevant by the tribunal, the
guardianship legislation also requires those exercising functions to observe the general principles
listed in the Act, including giving paramount consideration to the welfare and interests of the adult.50
<subgroup>Role of medical professional
The role of the medical professional is to identify the relevant decision-maker. In this context, that
decision-maker is a guardian. The medical professional will then need to ascertain what functions
have been conferred upon the guardian and know that the requisite function needed to refuse life-
sustaining treatment is one in relation to health care.
46Forconcernsabouttheimplicationsofthisdecision,seeStewartC,“ProblemswithSubstituteMedicalDecision‐makingin
NSW”(2006)3JournalofBioethicalInquiry127;BowenTandSaxtonA,“TheNSWGuardianshipAct–HowFarCanItGo?”
(2006)15(1)AustralianHealthLawBulletin1;GilesDandTownsendR,“End‐of‐lifeDecisionsandtheNSWGuardianshipAct:
ASquarePeginaRoundHole?TheLawandClinicalPractice”(2006)15(1)AustralianHealthLawBulletin4.
47ThisdecisionwaspreviouslyknownasReAG[2007]NSWGT1.
48QAN[2008]NSWGT19;LEandLFvPublicGuardian[2009]NSWADT78.
49Seebelowat15‐16.
50GuardianshipAct1987(NSW),s4.

If a guardian refuses the provision of life-sustaining treatment to the adult in circumstances where the
medical professional considers such treatment should be provided, the medical professional may
apply to the Guardianship Tribunal for consent to provide the treatment.51 He or she may also seek a
review by the tribunal of the guardian’s appointment.52
<group>The adult has appointed an enduring guardian to make health care decisions
on the adult’s behalf
The Guardianship Act 1987 (NSW) allows an adult to appoint a person as her or his guardian
pursuant to a written instrument.53 The appointee is known as an “enduring guardian” and the
appointment only operates during the time that the adult is in need of a guardian.54 The enduring
guardian will have the functions that are conferred by the instrument. Such functions will include
“deciding the health care that the adult is to receive”,55 or giving consent under Pt 5 to the carrying
out of medical or dental treatment on the adult56 unless the instrument limits or excludes these
functions.57
Applying the reasoning of the Administrative Decisions Tribunal in FI v Public Guardian, it appears
that a function in relation to making decisions about health care is required to withhold or withdraw
life-sustaining treatment. A function merely to consent to medical treatment would not authorise an
enduring guardian to make such a decision.58
<subgroup>Criteria applicable to the decision
The criteria that must be taken into account by an enduring guardian when making a decision about
withholding or withdrawing life-sustaining treatment are the same as for a guardian appointed by the
Guardianship Tribunal as set out above, and include consideration of the adult’s best interests for the
purpose of preservation of life, and the general principles listed in the Guardianship Act 1987
(NSW).59
<subgroup>Role of medical professional
Again, the medical professional’s role is the same as considered earlier where the decision-maker is a
guardian appointed by the Guardianship Tribunal. The medical professional will need to identify the
enduring guardian as the relevant decision-maker, determine the functions conferred by the adult and
understand the difference between a function in relation to health care and one in relation to consent.
The medical professional will also need to know that he or she may apply to the Guardianship
Tribunal for consent to provide the treatment if concerned that an inappropriate decision is being
made.60 The enduring guardian’s appointment may also be reviewed by the tribunal61 or the Supreme
Court.62
<group>A person is nominated by the legislation as person responsible (“default
decision-maker”)
51GuardianshipAct1987(NSW),s42(1).
52GuardianshipAct1987(NSW),ss25,25B,25C.
53GuardianshipAct1987(NSW),s6.
54GuardianshipAct1987(NSW),s6A.
55GuardianshipAct1987(NSW),s6E(1)(b).
56GuardianshipAct1987(NSW),s6E(1)(d).
57GuardianshipAct1987(NSW),s6E(2).
58Anenduringguardianmay,however,withholdthatconsent,theeffectofwhichisconsideredbelowwhenexaminingthe
powersofapersonresponsible.
59Seeaboveat13.
60GuardianshipAct1987(NSW),s42(1).
61GuardianshipAct1987(NSW),ss6J,6K.
62GuardianshipAct1987(NSW),s6L.

The Guardianship Act 1987 (NSW) empowers a “person responsible” to give consent for certain
medical treatment under Pt 5 of the Act.63 A “person responsible” is defined to include a guardian or
enduring guardian with consent functions but in the absence of such appointees, the default decision-
maker will be the first of the following:64
 the spouse of the adult, including same-sex or de facto spouse (if the relationship is close and
continuing and the spouse is not under a guardianship order);
 a person who has the care of the adult; and
 a close friend or relative of the adult.
Although a default decision-maker, as a person responsible, may consent to medical treatment,
applying the reasoning of FI v Public Guardian, such a decision-maker does not have a function in
relation to health care and so could not refuse life-sustaining treatment. A person responsible could,
however, withhold consent to that treatment.
<subgroup>Criteria applicable to the decision
In making a decision about whether to consent to treatment or withhold that consent, the person
responsible must have regard to information about the proposed treatment provided by the medical
professional, any views of the adult, the need to ensure the adult is not deprived of necessary medical
treatment but that any treatment carried out is done so for the purpose of promoting and maintaining
the adult’s health and wellbeing, and the general principles.65
<subgroup>Role of medical professional
The distinction drawn in FI v Public Guardian between being able to make decisions about health
care and being able to consent to medical treatment was discussed above. Although this distinction
has been settled only relatively recently, it appears that a power to consent to medical treatment,
although falling short of allowing a substitute decision-maker to refuse treatment, would carry with it
the ability to withhold consent to treatment.66 The below discussion considers the implications of
withholding consent. Because ‘person responsible’ is defined to include guardians and enduring
guardians (both of whom may be appointed without the wider health care function), this section
applies to all substitute decision-makers whose power is limited to consent or the withholding of that
consent.
The medical professional’s role begins by identifying the person responsible in the hierarchy from
whom they may request consent.67 He or she will have to be aware that a person responsible is not
able to refuse life-sustaining treatment, but that the person responsible may withhold consent to the
adult receiving treatment. The medical professional’s response to such a withholding of consent may
depend on her or his view of how desirable or necessary the provision of treatment is. The wide
spectrum of medical situations that fall within the ambit of the Category 1 medical contexts was
explained earlier.68 If the medical professional believes that treatment should be provided to the adult,
he or she will need to obtain consent or authorisation elsewhere, most likely from the tribunal as
discussed below.69 On the other hand, if the situation fell towards the other end of the spectrum where
the medical professional thought it preferable, or at least acceptable, that treatment not be given, he or
she may accept the person responsible’s decision to withhold consent to treatment and so not treat. A
63GuardianshipAct1987(NSW),s36(1)(a).SeealsoGuardianshipAct1987(NSW),s37(2)‐(3)inrelationtotheprovisionof
“minortreatment”wherethereisnopersonresponsibleorthepersonresponsibleisnotcontactable,ableorwillingtomake
adecisioninresponsetoarequestforconsent.
64GuardianshipAct1987(NSW),s33A.
65GuardianshipAct1987(NSW),ss4,32,40(3).
66ThisisconsistentwiththeapproachtakeninVictoriawhichdifferentiatesbetweenthepowertowithholdconsentto
treatmentandthepowertorefusethattreatment:seeWillmottL,WhiteB,ParkerMandCartwrightC,“TheLegalRoleof
MedicalProfessionalsinDecisionstoWithholdorWithdrawLife‐sustainingTreatment:Part3(Victoria)”(2011)18JLM
(forthcoming).
67GuardianshipAct1987(NSW),s40(1).
68Seeaboveat6‐7.
69SeeGuardianshipAct1987(NSW),ss42(1),44andat16‐17below.

medical professional will need to be aware of these two options when confronted with a withholding
of consent and be aware that he or she exercises some discretion in how to respond.
A medical professional will also need to know that the power to withhold consent to treatment can
impact upon withdrawing treatment and withholding treatment differently. To provide treatment, a
medical professional requires consent or some other authorisation. This means that if consent is
withheld, and other consent or authorisation is not obtained, a person responsible can prevent
treatment from being started. However, once consent or authorisation is obtained for the provision of
ongoing treatment, further consent or authorisation is not necessary. This means that a person
responsible cannot prevent treatment from continuing simply by withholding consent if there is
already justification for providing the treatment. To require that treatment be withdrawn, a substitute
decision-maker needs the power to refuse treatment. Accordingly, a medical professional will need to
be aware of how a power to withhold consent may operate differently where the question is whether
treatment should be withheld as opposed to withdrawn.
<group>Decision by the Public Guardian
The Guardianship Act 1987 (NSW) creates the statutory office of the Public Guardian.70 The Public
Guardian may be appointed by the Guardianship Tribunal as a guardian for an adult and the functions
that may be conferred were considered above.
Unlike in Queensland, the Public Guardian does not have power to intervene and make the decision
herself or himself to resolve a disagreement within a family or between family and the treating team
as to the appropriate course, or where decisions are being made inappropriately.71 The Public
Guardian does, however, have a limited ability to make a decision as guardian if the appointed
guardian dies and there are no surviving or alternative guardians.72 This power will subsist until the
guardianship order is reviewed.
<subgroup>Criteria applicable to the decision
The criteria that the Public Guardian must consider in exercising her or his functions are the same as
apply to other guardians, and were considered above.73 These include consideration of the adult’s best
interests for the purpose of preservation of life and the general principles listed in the Act.
<subgroup>Role of medical professional
The role of the medical professional where a decision to withhold or withdraw treatment is made by
the Public Guardian is the same as described earlier in that the medical professional must identify the
decision-maker and the relevant functions conferred.74 However, in addition to being able to approach
the Guardianship Tribunal as discussed above, review of a decision by the Public Guardian may be
undertaken by the Administrative Decisions Tribunal.75
<group>Order of the Guardianship Tribunal
The Guardianship Tribunal is conferred with power to consent to the carrying out of medical
treatment on an adult who lacks capacity.76 Prior to FI v Public Guardian, it was possible to argue
that this power was sufficiently wide to include a power to withhold or withdraw life-sustaining
treatment. Such an interpretation does not now seem tenable, and it appears unlikely that the tribunal
has power to withhold or withdraw such treatment. However, as with the person responsible, the
tribunal may withhold consent to treatment. It is suggested that a decision by the tribunal to withhold
its consent will in effect operate as a refusal of treatment.
70GuardianshipAct1987(NSW),s77.
71SeeWillmottL,WhiteB,ParkerMandCartwrightC,“TheLegalRoleofMedicalProfessionalsinDecisionstoWithholdor
WithdrawLife‐sustainingTreatment:Part2(Queensland)”(2011)18JLMXXXat2.3.5.
72GuardianshipAct1987(NSW),s22A(1)(c).
73Seeaboveat13.
74Seeaboveat13‐14.
75GuardianshipAct1987(NSW),s80A;GuardianshipRegulation2010(NSW),reg17.
76GuardianshipAct1987(NSW),ss36(1)(b),44.

It is also noted that a guardian or enduring guardian may apply to the tribunal for directions as to how
functions are to be exercised.77
<subgroup>Criteria applicable to the decision
In considering an application for consent to medical treatment, the tribunal must have regard to:
 the views of the adult, the medical professional and any persons responsible;
 information about the nature of the proposed treatment;
 the need to ensure the adult is not deprived of necessary medical treatment and that any
treatment carried out is done so for the purpose of promoting and maintaining the adult’s
health and wellbeing; and
 the general principles.78
Further, the tribunal must not consent to the treatment unless satisfied it is the most appropriate form
of treatment for promoting and maintaining the adult’s health and well-being.79
<subgroup>Role of medical professional
The medical professional will need to know about the jurisdiction and powers of the tribunal, and that
it is possible to bring a matter before it where there is a dispute or disagreement about a proposed
treatment decision.
<subdiv>Category 2: Medical professional considers life-sustaining treatment
to be futile
At common law, a medical professional is under no duty to treat an adult where “no benefit at all
would be conferred”.80 Treatment that is futile is not in a person’s best interests and so need not be
provided. The statutory regime in New South Wales does not alter the common law regarding the
provision of futile treatment. There is no obligation on medical professionals to provide futile
treatment, even where it is requested by a substitute decision-maker or by an advance directive.
Accordingly, there is no obligation to obtain consent to the withholding or withdrawing of such
treatment, though, as a matter of practice, consent may be obtained.
However, disputes can, and have,81 arisen as to assessments of futility and they are open to challenge
by those close to the adult who believe that the continuation of treatment is in the adult’s best
interests. Such a challenge could be brought before the Guardianship Tribunal, which has power to
consent to the treatment, or the Supreme Court in its parens patriae jurisdiction (discussed below).
<group>Role of medical professional
The medical professional is the initial decision-maker in this context, and must therefore be aware
that the law does not require provision of futile treatment. However, as noted above, this decision can
be challenged. Medical professionals need to be aware of avenues for legal review to the
Guardianship Tribunal and the Supreme Court.
<subdiv>Category 3: Urgent decision about life-sustaining treatment is
required
In New South Wales, medical treatment may be provided without consent under the Guardianship
Act 1987 (NSW) if the medical professional considers the treatment is necessary, as a matter of
urgency, to save the adult’s life, or to prevent serious damage to the adult’s health, or to prevent the
77GuardianshipAct1987(NSW),s28.
78GuardianshipAct1987(NSW),ss4,32,42(2),44(2).ForanillustrationofhowtheGuardianshipTribunalappliesthese
criteria,seeNKQ[2008]NSWGT21.
79GuardianshipAct1987(NSW),s45(1).
80AiredaleNHSTrustvBland[1993]AC789at858‐859(LordKeith),at869(LordGoff),at884‐885(LordBrowne‐Wilkinson),
at898(LordMustill).SeealsoAucklandAreaHealthBoardvAttorney‐General[1993]1NZLR235at251;andMessihavSouth
EastHealth[2004]NSWSC1061.
81SeeeginNewSouthWales,NorthridgevCentralSydneyAreaHealthService(2000)50NSWLR549;MessihavSouthEast
Health[2004]NSWSC1061.

adult from suffering or continuing to suffer significant pain or distress.82 No provision is made for
withdrawing or withholding treatment on an urgent basis. However, as discussed above, if treatment
is considered to be futile, at common law, the medical professional is under no obligation to provide
it, so it can be withdrawn or withheld without obtaining consent.83
<group>Role of medical professional
The medical professional in the urgent situation is the sole legal decision-maker because there is not
time to consider other legal decision-making mechanisms.
If the treatment is not assessed as futile, the medical professional has authority under the legislation to
provide treatment without consent, but not to withhold or withdraw it. However, if the medical
professional assesses the treatment as being futile, he or she is under no obligation to provide such
treatment (even if it is an emergency situation) and it can be lawfully withheld at common law.84
<DIV>ORDER OF THE SUPREME COURT EXERCISING ITS PARENS PATRIAE
JURISDICTION
In addition to the guardianship legislation discussed above, decisions for adults who lack capacity can
also be made by the Supreme Court in its parens patriae jurisdiction. This jurisdiction is capable of
applying to all three categories of medical context discussed above. In practice, however, given how
situations requiring an urgent decision are defined, it is unlikely that the court’s involvement would
be sought in the Category 3 context.
The scope and nature of this jurisdiction is discussed in more depth in the second article in this series.
For the purpose of this article, it is sufficient to note that the jurisdiction continues to exist despite
enactment of the guardianship legislation85 and that the test applied by the Supreme Court is “the
protection of the best interest of the health and welfare of the person the subject of its exercise”.86
<subdiv>Role of medical professional
The role of the medical professional is that he or she (or the relevant hospital) may engage the legal
system by bringing an application before the Supreme Court.
<DIV>CONCLUSIONS ON THE LAW
<subdiv>Some problems with the law in New South Wales
From the foregoing analysis of the law that governs withholding and withdrawing life-sustaining
treatment from adults who lack capacity, it is clear that there are some problems with the law as it
currently stands. This section draws together some of the key problems identified from the above
discussion that are likely to be impediments to medical professionals knowing the law. It is noted that
this section does not seek to review comprehensively all of the problems with New South Wales law
in this area, only those relevant to the focus of this article (medical professionals’ knowledge of the
law). This section also does not consider the issue of the complexity of the law generally as this is
examined in the third article in the series.
<group>Distinction between health care functions and consent to treatment functions
82GuardianshipAct1987(NSW),s37(1).McDougallJnotedtheexistenceatcommonlawofthe“emergencyprinciple”orthe
“principleofnecessity”andthatthiscouldjustifytreatmentwithoutconsent:HunterandNewEnglandAreaHealthServicev
A(2009)74NSWLR88at[31]‐[34],[40].HisHonourdidnot,however,considerhowthisprincipleorprinciplesmightoperate
inlightofs37(1)oftheGuardianshipAct1987(NSW).
83Seeaboveat17.
84Seeaboveat17.
85GuardianshipAct1987(NSW),ss8,31,31G;NorthridgevCentralSydneyAreaHealthService(2000)50NSWLR549at553.
86NorthridgevCentralSydneyAreaHealthService(2000)50NSWLR549at554andSlaveskivAustinHealth[2010]VSC493
at[34] referringtothecriterionasdiscussedbytheHighCourtinSecretary,DepartmentofHealthandCommunityServices
(NT)vJWBandSMB(Marion’sCase)(1992)175CLR218at240,249,252,270‐273,295,300,316.Therearemanyother
formulationsofthiscriterion.SeeegReHerrington[2007]VSC151at[22];MelovSuperintendentofRoyalDarwinHospital
(2007)21NTLR197at[25];MessihavSouthEastHealth[2004]NSWSC1061at[25].

Following the decision of FI v Public Guardian [2008] NSWADT 263, the power to refuse life-
sustaining treatment arises only for decision-makers empowered with health care functions and not
for those whose power extends only to consenting to treatment.
One result of this is that a default decision-maker can never have power to refuse life-sustaining
treatment. A default decision-maker, as a person responsible, only has power to consent or to
withhold consent. It is suggested that not granting this power to this cohort of decision-makers leaves
an undesirable gap in the law. This means that where such a decision might be required, it may be
necessary to engage the formal guardianship system (which is inconsistent with the least restrictive
approach), and apply to the tribunal either for its consent (or withholding of that consent) or for the
appointment of a guardian.
This is also problematic in terms of medical professionals’ knowledge of the law in that they will
need to know that the person responsible, who is normally relied upon to give consent, does not have
the wider power to refuse treatment. The Conflict Resolution in End of Life Settings report suggested
there is confusion amongst medical professionals as to the scope of the person responsible’s power.87
A further problem is that the interpretation adopted by FI v Public Guardian means that some
guardians and enduring guardians will have power to refuse life-sustaining treatment, but others will
not. Again, the scope of that power will depend on whether they have been appointed with a health
care function or only a consent function. This distinction presents problems in that, again, medical
professionals are required to know that this difference exists and to check the scope of power for
these decision-makers.88
Finally, another problem is that medical professionals will need to know that the power to withhold
consent operates differently in practice depending on whether treatment has already been instituted or
not. As discussed above, merely withholding consent cannot stop ongoing treatment for which there
is already lawful justification but it may be effective in preventing treatment from being commenced
in the first place. This requires a nuanced understanding of the law and how it works in practice
which is unlikely to be known by medical professionals.
<group>Multiple and uncertain definitions of capacity
Another problem identified in terms of knowing the law is the multiple definitions that can be
relevant to assessing the adult’s capacity. As noted above, there is the definition used in Pt 5 of the
legislation, a definition that applies to guardians and enduring guardians (that a person is “in need of a
guardian”) and a third definition of capacity that is applied at common law (for advance directives).
The term “in need of a guardian” (which is perhaps the most significant definition in the end-of-life
context) has also been critiqued as being uncertain.89 The state of the law regarding capacity is likely
to present challenges for medical professionals seeking to know and comply with the law.
<group>No statutory recognition of advance directives
New South Wales is one of only two States in Australia that has not given advance directives
legislative recognition.90 It has been suggested that continued reliance on the common law could lead
to some uncertainty.91 The current authors consider that, at least so far as medical professionals’
knowledge of the law is concerned, relying on common law is undesirable. Recognition of advance
directives and when they will be binding in statute is likely to make ascertaining the law easier.
Indeed, one of the stated rationales for legislative action in other Australian jurisdictions has been to
try to achieve greater certainty and clarity.92 Further, although the Hunter decision has made clear that
87NewSouthWalesHealth,n10,pp20,24‐25.SeealsoNewSouthWalesParliament,LegislativeCouncil,Standing
CommitteeonSocialIssues,n19at[12.74].
88Thisdistinctionisalsolikelytobeconfusingforothersinvolvedinthesedecisions,includingeg,adultsseekingtoappoint
enduringguardians.Itisunlikelythatanadultwouldbeawareofthisdistinctioninmakingsuchanappointment,absent
competentlegaladvice.
89NewSouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19at[4.8]‐[4.20].
90TasmaniaistheotherAustralianjurisdictionwhichhasnotrecognisedadvancedirectivesinstatute.
91NewSouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19at[12.65]‐[12.68].
92SeeWillmottL,“AdvanceDirectivesandthePromotionofAutonomy:AComparativeAustralianStatutoryAnalysis”(2010)
17JLM556.Itmayalsobethattheenactmentoflegislationwillavoidsomeoftheproblemsthathavebeenidentifiedwith

advance directives will be recognised at common law in Australia, it is unclear how such recognition
fits with the provisions of the Guardianship Act 1987 (NSW). Although not purporting to address this
issue comprehensively, McDougall J in Hunter observed in relation to Pt 5 of the Act that “to some
extent and for some purposes, the Guardianship Act may give recognition to advance care
directives”.93
<subdiv>Legal role of medical professionals
In addition to the conclusion that the law is problematic, the analysis of the law in New South Wales
also supports the conclusion that medical professionals play a significant legal role in these decisions.
The specific roles were discussed above but the significant legal roles played by medical
professionals can be characterised in the following three ways.
<group>Medical professional as legal decision-maker
The first of these roles is where the medical professional is the legal decision-maker. This will occur
where the medical professional has assessed that life-sustaining treatment is futile. In such cases,
there is no obligation to treat and a medical professional can therefore legally decide to withhold or
withdraw life-sustaining treatment. Likewise, a medical professional in an emergency setting is
empowered to make decisions in certain circumstances.
<group>Medical professional making decisions about how to apply the law
The second role arises where the medical professional is not the legal decision-maker but has a formal
legal role as to how the relevant law is applied to the situation at hand. In this context, there are three
aspects of the decision-making process that are legally significant for medical professionals, and
about which an understanding of sometimes complex legal issues is essential.
The first aspect is that the medical professional must be aware that he or she needs to assess whether
the adult has the capacity to make the treatment decision. This assessment can be made competently
only if the medical professional has an understanding of the legal meaning of “capacity”.94
The second aspect arises only if the medical professional has made an assessment that the adult lacks
capacity. If this is the case, the medical professional must then determine the appropriate decision-
making mechanism (if he or she is not the decision-maker). This determination requires an
understanding of advance directives and possible substitute decision-makers.
The final (and related) legally significant aspect of the decision-making process is whether a
substitute decision-maker in fact has power to make the decision to withhold or withdraw life-
sustaining treatment. Concerns about whether certain categories of decision-makers have this power
were discussed above. There is also, as part of determining the legal power to make a decision, the
question of whether an advance directive is capable of being relied upon. In this case, the role of a
medical professional includes the need to determine whether the directive is valid and applicable.
<group>Medical professional as legal gatekeeper
The third legal role played by a medical professional is that of gatekeeper. Various legal avenues for
review are enlivened if there are concerns about a health care decision made under an advance
directive or by a substitute decision-maker. For example, a medical professional who is concerned
about a treatment decision that has been made by a person responsible may make an application to the
Guardianship Tribunal to obtain consent to the treatment or, where relevant, to review the
appointment of a guardian or enduring guardian. If the treatment decision is made by the Public
Guardian, the medical professional may be able to seek a review of that decision by the
Administrative Decisions Tribunal. Being able to take such steps assumes knowledge that these
theapplicationofcommonlawprinciples:seeegWillmottL,“AdvanceDirectivesRefusingTreatmentasanExpressionof
Autonomy:DotheCourtsPractiseWhatTheyPreach?”(2009)38(4)CommonLawWorldReview295.
93HunterandNewEnglandAreaHealthServicevA(2009)74NSWLR88at[39].Theuncertaintyraisedbythiscommentis
alsonotedbyNewSouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19at[12.79].
94Forcommentontheextenttowhichmedicalprofessionalsarefamiliarwiththislegaltest,orhaveinplacetheappropriate
proceduresandprotocolsformakingthisassessment,seeAppelbaumP,“AssessmentofPatient’CompetencetoConsentto
Treatment”(2007)357(18)NEJM1834.

avenues to obtain consent or for review are available. Indeed, it has been suggested that the treating
team (or their hospital), rather than the adult’s family or friends, should take responsibility for
bringing any disputes to the courts (or relevant tribunal). In Re B (Adult: Refusal of Medical
Treatment) [2002] 2 All ER 449 at [98]-[99], Butler-Sloss LJ was critical of the relevant health
service trust for its failure to initiate legal proceedings to resolve an entrenched dispute, and that it fell
instead to the adult herself to seek legal redress. A final gatekeeping role arises when a substitute
decision-maker withholds consent to treatment (rather than refusing treatment). Here a medical
professional may choose to accept that withholding of consent and not treat, or choose to seek consent
or authorisation to treat elsewhere.
MEDICAL PROFESSIONALS’ KNOWLEDGE OF THEIR LEGAL ROLE
The preceding section established that medical professionals play significant legal roles in decisions
to withhold and withdraw life-sustaining treatment. The authors also identified above the grave
adverse consequences that can flow where there is a lack of knowledge of the law in this area. Having
demonstrated the importance of this knowledge, the following question is addressed: what do medical
professionals know of the law that governs these decisions? In doing so, the authors examine what
formal training medical professionals receive on this topic and any available empirical evidence in
New South Wales as to the state of their knowledge of the law.
<DIV>WHAT ARE MEDICAL PROFESSIONALS TAUGHT ABOUT THIS AREA OF LAW?
Although medical professionals may acquire knowledge about the law from a range of sources
(including, eg, professional guidelines),95 the focus of this section is on what formal teaching is
provided in medical school as this represents a minimum level of training that all medical
professionals will receive. There is also some discussion of training opportunities that might arise
after medical school.
During the last 20 years, medical programs in Australia have undergone dramatic changes in numbers
of programs and students, entry processes, structure, content and pedagogy. One significant
curriculum development has been the integration of teaching in medical ethics, law and professional
issues in all programs. The Australian Medical Council expects Australasian medical graduates to
have knowledge and understanding of the principles of ethics related to health care and the legal
responsibilities of the medical profession, and to demonstrate an appreciation of the complexity of
ethical issues related to human life and death.96
In 2001, a working group of the Association of Teachers of Ethics and Law in Australian and New
Zealand Medical Schools published “An Ethics Core Curriculum for Australasian Medical Schools”
in the Medical Journal of Australia.97 Although they were not specified as legal topics but were
included under the title “Ethics in Practice”, the following areas of relevance to this series of articles
were included as core knowledge areas:
 determining capacity;
 consent to and refusal of treatment;
 informed decision-making;
 legal aspects of the duty of care;
 surrogate decision-making;
 futility/limiting treatment;
 withdrawing treatment; and
 end-of-life decisions and causation of death.
95Forexample,NewSouthWalesHealth,GuidelinesforEnd‐of‐LifeCareandDecision‐making(2005);NewSouthWales
Health,UsingAdvanceCareDirectives(2004).
96AustralianMedicalCouncil,AssessmentandAccreditationofMedicalSchools:StandardsandProcedures(2009),
http://www.amc.org.au/images/Medschool/standards.pdfviewed1November2010.
97AWorkingGroup,onBehalfoftheAssociationofTeachersofEthicsandLawinAustralianandNewZealandMedical
Schools(ATEAM),“AnEthicsCoreCurriculumforAustralasianMedicalSchools”(2001)175(4)MJA205.

Despite these expectations and proposals, it is not easy to gauge the extent to which the areas of
medical law pertinent to withholding and withdrawing life-sustaining treatment from adults who lack
capacity are taught in both medical programs and junior medical professional training. An informal
survey conducted by the authors via personal communication with colleagues in 2010 yielded three
responses from the seven medical schools in New South Wales. The authors asked about coverage of
decision-making capacity and capacity determination, ethical and legal aspects of withdrawing and
withholding treatment (patients with and without capacity), substitute decision-making and
guardianship, and advance care planning. Of the three responding schools, one covered the areas
“over the course”, but in some detail in three sessions in Year 3; the second taught all areas by
lectures and student group presentations, with a particular focus on relevant legislation in the
Australian Capital Territory and New South Wales, and assessed them via multiple-choice questions,
short answers and mini-case exams; and the third provided lectures linked to a case on
dementia/delirium in Year 2 (capacity, substitute decision-making, guardianship), and teaching in the
oncology-palliative care rotation in Year 4 (ethical and legal aspects of withdrawing and withholding
treatment from patients with and without capacity, advance care planning). The authors believe that it
is likely that the non-respondent schools have at least some teaching in the same areas.
State postgraduate medical councils accredit training institutions (mainly hospitals) for junior medical
professionals, and the Confederation of Postgraduate Medical Councils has developed the Australian
Curriculum Framework for Junior Doctors.98 The framework includes the topics end-of-life care,
medicine and the law, and ethical practice, but these have not been populated with resources or
references, despite the fact that the framework was launched in 2006. It should be noted that many
other sections of the framework also remain relatively unpopulated with resources, and that the
framework is not a training program per se, but more a list of aspirational curricular statements. These
statements are somewhat vague and general, such as “Liaises with legal & statutory authorities”;
“Ensures relevant family/carers are included appropriately in meetings and decision-making”; and
“Arranges appropriate support for dying patients”. There is no evidence we are aware of that any
systematic teaching occurs in New South Wales (or in Queensland or Victoria), and there are few, if
any, required core units in any areas of medical law, let alone the areas of interest here, at the
specialist college stages of training.
Continuing medical education programs for medical professionals in private practice sometimes
include medico-legal matters, but since the majority of these programs are supported by
pharmaceutical companies, most content pertains to clinical management. Setting aside the critiques
of how pharmaceutical companies utilise continuing education to persuade medical professionals to
use their products, education sessions on clinical management are undoubtedly valuable for medical
professionals in maintaining their knowledge and skills. But clinical management clearly involves
considerable knowledge of and guidance by the law in an increasing number of areas, including those
under discussion here. Medical defence organisations and professional medical associations likewise
provide sporadic medico-legal education for members. It can be fairly said, on the basis of one of the
authors’ long experience with these organisations, that these programs often focus on risk
management issues and legal changes that threaten the profession, rather than the legal aspects of
routine clinical management.
The above discussion reveals that current Australian medical students will receive some training on
the law and medical professionals’ role in end-of-life decision-making, and that qualified medical
professionals may undertake some continuing medical education programs from professional medical
associations and/or medical defence organisations. However, such postgraduate training is neither
mandatory nor systematic and so relies on the interest of the medical professional to participate.
These observations support a broad generational difference in relevant education.99 Medical
98ConfederationofPostgraduateMedicalCouncils,AustraliaCurriculumFrameworkforJuniorDoctors(2009),
http://curriculum.cpmec.org.au/viewed1November2010.
99MilesSHetal,“MedicalEthicsEducation:ComingofAge”(1989)64AcademicMedicine705;MattickKandBlighJ,
“TeachingandAssessingMedicalEthics:WhereAreWeNow?”(2006)32(3)JournalofMedicalEthics181;MusickDW,
“TeachingMedicalEthics:AReviewoftheLiteraturefromNorthAmericanMedicalSchoolswithEmphasisonEducation”

professionals older than say, 40, are likely to have received little, if any, formal education concerning
the focal issues of this series of articles at the postgraduate level, or during their undergraduate
medical training. The position is different, however, for junior medical professionals, specialty
trainees and junior consultants who have graduated over the past decade or so, as they will have had
some exposure to the field of ethics and law generally, and end-of-life decision-making more
specifically, in their undergraduate training.
<DIV>WHAT DO MEDICAL PROFESSIONALS KNOW OF THIS AREA OF LAW?
Given the state of formal training on the law in this area and the complexity of the law, it might be
expected that medical professionals’ legal knowledge will be inadequate. There is strong anecdotal
evidence to this effect. For example, the Conflict Resolution in End of Life Settings report found that
“there is persistently inadequate understanding amongst health professionals about the role of “Person
Responsible” in so far as who decides, and what is permissible in [end of life] substitute decision-
making”.100
In terms of empirical evidence, the authors are aware of only one study that has specifically sought to
determine what medical professionals know of this area of law.101 In 2009, one of the authors
conducted a survey of New South Wales medical professionals to assess their level of knowledge and
understanding of advance care planning (including in relation to enduring guardians, persons
responsible, and advance directives).102 Only 30% of the 260 respondents had ever received
educational material about advance directives; of these, 25% had received the material through their
local Divisions of General Practice, 19% from New South Wales Health, 8% from their workplace
and 31% from a combination of the above.
Prior to receiving the questionnaire, a majority of respondents had heard of advance directives,
enduring guardians and persons responsible and approximately half of the respondents reported
having experience with at least one of these decision-making mechanisms. However, experience and
knowledge did not necessarily equate. When asked: “If one of your patients has given someone
Enduring Power of Attorney, do you think that the person appointed has authority to make health care
decisions?”, 23% of respondents thought that it did and 30% were unsure. Less than half (47%)
understood that an enduring power of attorney appointment in New South Wales does not allow the
appointee to make health care decisions, only financial decisions.
In order to ground the theoretical questions, respondents were presented with a scenario which
involved an 87-year-old non-competent woman, Georgina, in a residential aged care facility. She had
two children, Theo, the elder, and a daughter, Maria, who had been caring for her mother at home and
who had been appointed attorney by her mother under an enduring power of attorney. The patient
never completed an advance directive and her children disagreed about her treatment. Respondents
were told:
<blockquote>
Theo says that he should have the right to make decisions about what treatment Georgina does or does not
receive because he is the eldest [sic] and therefore her next-of-kin. Maria says that she has been managing
(1999)2(3)Medicine,HealthCareandPhilosophy239;GoldieJ,“ReviewofEthicsCurriculainUndergraduateMedical
Education”(2000)34(2)MedicalEducation108.ThisisalsoconsistentwiththefindingofDarvallandothersthataccurate
knowledgeoftheVictorianlawinthisareadecreasedwiththemedicalprofessional’sage:seeDarvallL,McMahonMand
PitermanL,“Medico‐legalKnowledgeofGeneralPractitioners:Disjunctions,ErrorsandUncertainties”(2001)9JLM167at
181,whichisdiscussedfurtherinthethirdarticleinthisseries:seeWillmott,White,ParkerandCartwright,n66.
100NewSouthWalesHealth,n10,p25.
101Therehavebeenotherstudiesthatlookedatrelatedissues.Forexample,CorkeetalsurveyedAustralianintensivecare
doctorstoevaluatehowpotentialend‐of‐lifetreatmentdecisionsmightbeinfluencedbyasubstitutedecision‐makeroran
advancedirective:CorkeCetal,“TheInfluenceofMedicalEnduringPowerofAttorneyandAdvanceDirectivesonDecision‐
makingbyAustralianIntensiveCareMedicalProfessionals”(2009)11(2)CriticalCareandResuscitation122.Theresultsof
thisstudyrevealnon‐compliancewiththelawalthoughwhetherthisisduetoalackofknowledgeisnotspecifically
addressed.
102CartwrightCetal,NSWMedicalPractitioners’KnowledgeofandAttitudestoAdvanceCarePlanning:ReporttoNSW
Health(November2009).

all her mother’s affairs, paying bills and doing her banking and that because her mother gave her enduring
power of attorney to do that, she should have the right to make the decisions.
</blockquote>
Respondents were then asked: “Who do you think has the legal right to make health care decisions for
Georgina?” and “Why?”
While 54% of respondents correctly nominated Maria as the person with authority to make
Georgina’s decisions, when asked why this was so, 50% of those who nominated Maria said it was
because she held Georgina’s enduring power of attorney. Only 35% (or 19% of the whole sample)
correctly recognised that Maria would be the person responsible under the Guardianship Act 1987
(NSW) because she had been Georgina’s carer (and Georgina no longer had a spouse). The study
concluded that there is a “significant gap” in the legal knowledge of medical professionals in this area
and that further education is required.103
CONCLUSION
This is the first in a series of three articles looking at medical professionals’ knowledge of the law
governing withholding and withdrawing life-sustaining treatment in New South Wales, Queensland
and Victoria. One of the goals of the present article was to establish the foundation for the series as a
whole and this was the focus of the second part of the article. It was devoted to arguing why medical
professionals’ knowledge of the law in this area matters and to outlining the general context of
decision-making. The matters considered in this part are drawn upon by the two articles that follow.
The remainder of this article considered the position in New South Wales. It examined the law in this
State and concluded that it has problems that will impede medical professionals’ legal knowledge. It
also concluded that the law in New South Wales provides for medical professionals to play significant
legal roles in these decisions. It then considered what medical professionals know of this law. Formal
training appears to be delivered primarily through medical school, although it has been only relatively
recently that this issue seems to have been given greater weight. Training after medical school is more
sporadic. The authors also considered an empirical study which specifically examined, and found
deficits in, medical professionals’ knowledge of this area of law.
This article, at least in relation to New South Wales, has therefore demonstrated the four claims
outlined in the introduction, namely:
 medical professionals play significant legal roles in decisions to withhold and withdraw life-
sustaining treatment;
 so it is important that medical professionals know the law in this area;
 but there are significant deficits in relevant legal knowledge by medical professionals; and
 the state of the law is such that it is likely to impede medical professionals knowing the law.
In relation to the last two points, particular evidence linking the state of the law to the level of
medical professionals’ knowledge is found in the Conflict Resolution in End of Life Settings report.104
It indicates that a lack of clarity in the law is having an adverse impact upon the legal knowledge of
medical professionals in this area.
This series of articles also reaches two conclusions, namely that law reform is needed and that
medical professionals need more and better education on this topic. Conclusions in relation to medical
training apply to all three jurisdictions and so are considered in the final article. There are also general
claims that can be made about law reform, such as those in relation to complexity of the law, which
will also be made at that time. At this point, however, it is possible to make some observations about
law reform in relation to the three problems identified above that are specific to New South Wales
law. In doing so, it is stressed that the focus of this article is on addressing medical professionals’
knowledge of the law and not on advocating for desirable law reform on a broader, systematic basis.
103Cartwrightetal,n102,pp23‐26.
104NewSouthWalesHealth,n10,pp20,24‐25.

In relation to the distinction made between substitute decision-makers having the health care function
and having only the consent function, the range of problems this causes were noted above. Of
particular relevance is that this distinction is likely to be confusing for medical professionals and the
anecdotal evidence discussed above supports this conclusion. Perhaps the most persuasive argument
in favour of a distinction which confers more limited power on a default decision-maker relates to the
possibility of inappropriate decision-making by someone who has not been specifically entrusted by
the Guardianship Tribunal or the adult with power to refuse life-sustaining treatment. However, in
Queensland, default decision-makers automatically have this power and the authors are unaware of
these concerns being problematic under that regime. It is also pertinent to note that there are a number
of safeguards that protect adults from inappropriate decision-making. A significant safeguard
considered in this article is the gatekeeping role played by medical professionals. A medical
professional has a range of avenues to challenge a decision if he or she is concerned about it.
Accordingly, the authors favour removing the distinction between the health care function and the
consent function so that all substitute decision-makers have power to withhold or withdraw life-
sustaining treatment.105 In support of this, the authors note the observation by the Office of the Public
Guardian that it was never intended that such a distinction be made.106
The article also pointed to the three possible definitions for determining whether an adult has capacity
(with two of them being contained in the same piece of legislation). This is obviously undesirable and
confusing. It is suggested that a single definition for capacity be adopted in the Guardianship Act
1987 (NSW). The authors favour that definition giving effect to the functional approach to capacity.
This reflects the least restrictive approach favoured by modern guardianship law and is a position that
one of the authors has argued for elsewhere.107
Another problem identified in this article is the failure to recognise advance directives in statute. New
South Wales is one of only two jurisdictions in Australia that relies on the common law in this regard.
The authors consider that a statutory advance directive framework would improve the clarity of the
law, which would assist medical professionals and others seeking to know the law.108 One of the
authors has argued elsewhere that the enactment of appropriately drafted legislation would also have
the desirable effect of enhancing the role and recognition of advance directives as an expression of
autonomy.109
This concludes the review of the law that governs withholding and withdrawing life-sustaining
treatment from adults who lack capacity, and medical professionals’ knowledge of that law, in New
South Wales. The position in Queensland is considered in the second article of this series.110
105ThisisalsotheoutcomefavouredbyOfficeofPublicGuardian,SubmissiontoInquiryintoSubstituteDecision‐makingfor
PeopleLackingCapacity(2009)p20.TheStandingCommitteeonSocialIssuesrecommendedthatthisissuebeclarifiedbut
declinedtomakeaspecificrecommendationastohowthisshouldbedone:NewSouthWalesParliament,LegislativeCouncil,
StandingCommitteeonSocialIssues,n19at[12.77].Instead,itrecommendedthatthewiderissueofend‐of‐lifedecision‐
makingbereferredtotheNewSouthWalesLawReformCommissionforitsconsideration(at[12.83]).
106OfficeofPublicGuardian,n105,p20.
107DevereuxJandParkerM,“CompetencyIssuesforYoungPersonsandOlderPersons”inFreckeltonIandPetersenK(eds),
DisputesandDilemmasinHealthLaw(FederationPress,Sydney,2006)pp54,57‐58.ThisisalsothepositionadoptedinNew
SouthWalesParliament,LegislativeCouncil,StandingCommitteeonSocialIssues,n19at[4.52]‐[4.57],Recommendation1.
108TheStandingCommitteeonSocialIssuesnotedsomeuncertaintyastothecurrentstatusofadvancedirectivesat
commonlawandrecommendedthatthisissue(alongwiththewiderissueofend‐of‐lifedecision‐makinggenerally)be
referredtotheNewSouthWalesLawReformCommissionforitsconsideration:NewSouthWalesParliament,Legislative
Council,StandingCommitteeonSocialIssues,n19at[12.79]‐[12.83].
109SeeWillmott,n92.
110Willmott,White,ParkerandCartwright,n71.