Decisions regarding the withholding or withdrawing of treatment from patients who cannot decide for themselves involve consideration of confronting questions about when a person should be allowed to die. When doctors and families disagree, legal and ethical questions arise and the courts may be asked to intervene. These issues have been highlighted recently, particularly in the UK, where intense media scrutiny over the courts’ decisions has fuelled a divide in public opinion over when treatment can be considered 'futile'. Like the high profile legal battle surrounding baby Charlie Gard in 2017,1 the recent case of Archie Battersbee2 illustrates the heavy burden on a Court when determining a dispute over whether to withdraw the life-sustaining treatment of a child.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 30 No 8.
Introduction
In the Battersbee decisions, the courts were required to consider what was in a 12-year-old boy’s 'best interests', after he suffered profound and extensive brain damage following a hanging incident. While Justice Arbuthnot of the England and Wales High Court of Justice ('High Court') had initially made a declaration that Archie was 'brain stem dead' and ordered that his life support be withdrawn on that basis, his parents were successful in appealing that decision in the Court of Appeal, which found that the brain death testing was inconclusive and such a declaration was wrongfully made.3
The matter was remitted to Justice Hayden of the High Court, to instead decide whether the continuation of life-sustaining treatment was in Archie’s best interests. Subsequently, a string of appeals driven by Archie’s parents, including to the European Court of Human Rights, failed and Archie’s life support was ultimately withdrawn. Ultimately the appeals did not disturb the ruling by Justice Hayden that it would not be in Archie’s best interest to continue treatment. In that key judgment, Justice Hayden gave compassionate consideration to Archie’s situation including his wishes as expressed by his parents.4
Ultimately, his Honour concluded that the treatment was futile and compromised Archie’s dignity, autonomy and was wholly inimical to his welfare.5 Justice Hayden concluded that it served only to protract his death, while being unable to prolong life, and therefore it could not be in his best interests to continue treatment.6
The approach taken by Australian courts in deciding the issues that present in cases akin to the Battersbee decisions is considered in this article, with reference to the 'best interest' test and the judicial approach to futility assessments. An analysis of the Australian common law approach is undertaken, with reference to the key cases that guide the common themes applicable to decisions to withhold or withdraw treatment. Finally, the article notes the anomalous position in Queensland for adults without capacity, where doctors are compelled by the statutory framework to seek the consent of a substitute decision-maker to withdraw life-sustaining treatment. This position operates in contrast with the rest of Australia’s statutory guardianship regimes, as well as the common law position that doctors are under no obligation to provide futile treatment.7
The legal landscape
The common law in the UK and Australia recognises that a healthcare provider’s legal duties do not extend to the provision of treatment deemed not to be in the patient’s 'best interests'.8 The authoritative principles from the English and Australian decisions considering the withdrawal of life-sustaining treatment confirm that providing 'futile' treatment will not be in the patient’s best interests.9 'Futile' treatment is generally understood to be treatment that confers no benefit on the person.10
Jurisdiction to make a 'best interests' determination
In Australia, the Supreme Courts of each state have jurisdiction to make decisions in the best interests of those who cannot decide for themselves. This is known as the parens patriae jurisdiction, and its scope is wide ranging and far reaching.11
Accordingly, while decisions concerning a child’s treatment will ordinarily be made by those with parental responsibility, where there is a dispute between a child’s doctors and parents the Supreme Court may be asked to determine the issue. The Family Court is also able to adjudicate these disputes exercising its welfare jurisdiction under the Family Law Act 1975 (Cth). Both courts are guided by the same determinative question of what is in the 'best interests' of the child.12
Adults without capacity are also captured by the Supreme Courts’ parens patriae jurisdiction. This has been recognised in the context of the withdrawal of treatment from a critically ill adult patient in Northridge v Central Sydney Area Health Service at [24] where Justice O’Keefe stated:
Guardianship legislation
For adults an alternative pathway exists under the guardianship legislative framework in each state. In Queensland, for example, the legislation expressly acknowledges the retention of the Supreme Court’s parents patriae jurisdiction13 in relation to the question of withholding or withdrawal of treatment. Although the legislation confers jurisdiction on the Tribunal and Public Guardian14 to resolve these matters,15 the parens patriae jurisdiction remains.
While the position in other Australian states is similar, Queensland is unique in one respect as discussed later in this article.
Best interests and futility
In resolving disputes about the withholding and withdrawal of life-sustaining treatment, the courts are guided by the overarching question of the 'best interests' of the patient.16 However, these assessments raise complex ethical, moral and legal questions in ascribing meaning to concepts such as 'futility' and 'best interests'.
The Airedale decision
The landmark English decision of Airedale NHS Trust v Bland was the first time the English courts were required to determine the circumstances in which futile life-sustaining treatment could be lawfully withdrawn.17 This decision has continued to inform judicial reasoning in Australian cases for its elucidation of the principle that in determining a patient’s best interests 'it is the futility of the treatment which justifies its termination'.18
In this case, the hospital applied to the court for declarations that it would be lawful to discontinue all life-sustaining treatment for Anthony Bland, a 21-year-old patient who had been in a persistent vegetative state for 3½ years and whom they believed should be allowed to die with dignity. The application was supported by Mr Bland’s parents and the unanimous medical opinion of the doctors caring for him.
Mr Bland had suffered catastrophic and irreversible brain injuries in an incident known as the 'Hillsborough disaster' involving a football stadium collapse in 1989, when he was 17 years old. As a result of his injuries, Mr Bland had remained persistently unresponsive, and although he was able to breathe unaided, he was unable to move, communicate, see, speak or hear and required artificial and mechanical feeding to remain alive.19
The United Kingdom House of Lords held that the treatment keeping Mr Bland alive could be lawfully ceased. In the court’s reasoning, the most significant consideration was that responsible and competent medical opinion supported the withdrawal of life-sustaining treatment on the basis that the continuance of such treatment was futile and could not confer any benefit on Mr Bland.20 The expert medical opinion involved consideration of the seriousness of Mr Bland’s condition and the limited likelihood of recovery, as well as the lack of therapeutic, medical or other benefit from the treatment that he was being given.21
In determining that the withdrawal of treatment was lawful, the House of Lords was careful to characterise the decision to withdraw as an omission, as distinct from an act. It noted that a doctor only has a duty to act in providing treatment that is in a patient’s best interests. If treatment were futile, as it was in Mr Bland’s case, it could not be in his best interests and accordingly there was no longer a duty on the doctor to provide that treatment.
Auckland Area Health Board decision
In its reasons in Airedale, the House of Lords referred to decisions from other jurisdictions. These included the High Court of New Zealand decision Auckland Area Health Board v Attorney General, where the issue had just recently been confronted. In that case, Thomas J delivered a comprehensive judgment reflecting on the complexity of the issues, where he ultimately resolved that:
Having considered In re J (A Minor) Justice Thomas continued, at p 252:
Common themes in Australian decisions
The decisions and reasoning in Auckland and particularly Airedale have continued to inform the application of the best interests test in Australian Superior Court decisions.23 The commonly identified themes borne out of the case analyses are useful in understanding the approach the courts will take.
Academic analysis of Australian jurisprudence of best interests’ assessments has identified several key themes which emerge in judgments considering the withdrawal of life-sustaining treatment.24 These themes do not differ greatly from the comprehensive articulation of relevant considerations in Airedale.
The first is that courts are likely to agree with an assessment not to treat if there is clear medical evidence that treatment is 'futile',25 or alternatively that the person is very unlikely to return to consciousness. The courts will also consider that treatment which is overly burdensome or invasive in contrast with its benefit will not be in a person’s best interests,26 even where the person is unaware of the burden.27 The judgements will often give consideration to the views of the person and their family as relevant, but not determinative, factors.28 Finally, the interests of others in an overstretched health system would not be relevant for a best interests assessment,29 and the judiciary has been critical of this being raised by hospitals as a relevant factor.30
Significantly, an analysis of the reported decisions consistently found that the courts rarely depart from medical opinion that treatment should not be provided.31
The Messiha decision
The Australian case Messiha v South East Health32 represents a useful illustration of the issues which arise when doctors and family members disagree, requiring the court’s intervention to determine what the patient’s best interests are.
In that case, an application was brought by Mr Messiha’s family who sought to restrain the hospital from withdrawing his life-sustaining treatment. Mr Messiha had suffered an asystolic cardiac arrest and had, since his admission weeks before, been unconscious requiring intensive and invasive treatment to keep him alive. There was unanimous medical consensus that there was no real prospect of recovery to any significant degree. The family disagreed and reported that they had observed improvement, asserting that treatment should continue.
In considering each party’s views, Howie J at [28] applied the best interests test, placing particular reliance on the futility of the treatment:
In this decision and other Australian cases that have followed the same reasoning,33 the courts have declined to interfere with the medical decision to withdraw treatment, concluding that the continuation of futile treatment is not in the best interests of the patient.
Commenting on the appropriateness of the intervention of the Court in such a determination, Howie J noted (at [25]):
Although the courts will, in a majority of cases, accept the medical evidence and opinion as they relate to the futility of treatment, this is not always the case as the decision discussed below illustrates.
The Northridge decision
The New South Wales Supreme Court decision of Northridge34 is a notable example of the rare occasion where a court will depart from medical opinion and order that life-sustaining treatment should continue. In this case, treating doctors sought to withdraw treatment six days after a 37-year-old man was admitted to the ICU following a heroin overdose. The NSW Supreme Court was highly critical of this decision on the basis that a doctor had diagnosed him as being in a 'chronic vegetative state' and proposed withdrawing treatment after only 4 days, without properly consulting his next of kin.
The Court intervened and ordered active treatment be reinstated, based on expert medical opinions (independent of the hospital) which indicated that the diagnosis was premature and inappropriate.
It was clear in this case that the treating doctor departed from existing hospital policy which required the involvement and consultation with a person’s family in taking a decision to withhold or withdraw treatment. The decision illustrates that the courts will not hesitate to utilise their inherent powers to protect the health and welfare of an incapacitated person where the medical decision to withdraw treatment is seen to be premature or inappropriate.
The withdrawal of treatment in children
End of life decisions involving children can be particularly distressing for families and treatment providers. The judicial approach to determining a child’s best interests in withdrawing or withholding treatment involves a balancing of relevant considerations, in the same way as for an adult. Those considerations include the prospects of treatment curing or improving the child’s health, medical opinion of treating doctors and independent experts and the beliefs and wishes of the child’s parents (and the child if relevant).35
In cases of infants with severe and profound impairments, courts may be asked to consider 'quality of life' questions, which are inherently controversial owing to the subjectivity which surrounds such value assessments.36 In TS & DS v Sydney Children’s Hospitals Network (Mohammed’s Case), Justice Garling confronted quality of life considerations in questions of the best interests of a severely disabled baby.
Mohammed’s case
In Mohammed’s Case, the parents of a 9-month-old disputed the decision by doctors that it was in his best interests to withhold mechanical ventilation as he became progressively more ill, and that he ought to be allowed to die. Justice Garling considered that a key question in determining whether the treatment should be withheld was whether the benefits of the treatment would outweigh the risks and discomforts.37
In determining that the risks and discomforts outweighed the benefits, Justice Garling noted that all that could be achieved by allowing the treatment was a temporary benefit with no cure, and to do so would subject him to pain and discomfort for the remainder of his life.38 Justice Garling explicitly refused to make an assessment of Mohammed’s quality of life, citing that any such assessment 'necessarily reflects the individual values of the assessor'.39
The Hospital v S
A more recent Australian case involving children is the case of The Hospital v S (a minor), which echoed the earlier discussed sentiments in Messiha. In this case, the hospital sought orders authorising it to withdraw life-sustaining treatment from S, a 3-year-old boy who was struck by a motor vehicle. The treating doctors had reached a firm consensus that S had no conscious awareness, that his injuries were terminal without artificial, mechanical life-sustaining treatment, and that all further treatment would be futile.40
S’s parents opposed the discontinuation of treatment and refused to provide their consent for withdrawal. In addressing the issues of best interests and futility, Robb J pertinently summarised the present view of the NSW Supreme Court:
The Court referred also to the following passage from Airedale:
The Court held that the overwhelming force of medical evidence justified the conclusion that it was in S’s best interests that the treatment be withdrawn.43
Tafida’s case
The outcome in the UK decision of Raqeeb v Barts NHS Foundation Trust44 ('Tafida’s case') is notable regarding the weight placed on the religious and cultural values of the child’s family, over considerations of the futility of sustained treatment. In this case, the United Kingdom High Court of Justice gave considerable weight to the views of the parents of 5-year-old Tafida, who suffered permanent brain damage from a ruptured artery in her brain. She was minimally responsive and required mechanical ventilation to keep her alive. Her doctors considered that Tafida would not recover, and would be permanently dependant on ventilation, and necessarily, intensive care treatment. Their opinion was that it was not in Tafida’s best interests to continue with invasive treatment, and that she should be allowed to die.
Her parents disagreed and applied to the Court to have Tafida transferred to a paediatric hospital in Italy, who had offered to take over her care and support long-term ventilation. The English hospital opposed her transfer, on the grounds that it was not in her best interests to be transferred. The Court considered the submissions from her parents that Tafida had some understanding of her cultural and religious identity, and that causing her death would be inconsistent with her family’s deeply held beliefs.
The Court ultimately found that it would be in Tafida’s best interests for life-sustaining treatment to continue, and allowed the orders sought to have her care transferred to an Italian hospital. A key finding in reaching that conclusion was that the burden of her treatment was considered to be low, when weighted against religious and cultural background which valued the sanctity of life as of the highest importance. The judge’s reasoning was notable for its consideration of her parents’ wishes, noting that they were loving, dedicated and had a detailed care plan which could allow her to eventually return home.45
The anomaly for adults in Queensland
While at common law treatment providers are not obliged by law to provide futile treatment, there is an exception in Queensland. Where an adult lacks decision-making capacity, decisions are made on that adult’s behalf pursuant to statutory guardianship frameworks. In Queensland, the guardianship framework comprises the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld). Referred to collectively as the 'guardianship legislation', this framework governs decision-making by and for adults with impaired decision-making capacity,46 according to a statutory hierarchy of decision-makers.47
Where there is no valid advanced health directive or enduring power of attorney, the next of kin48 can become the legal substitute decision-maker, referred to as the statutory health attorney.49 This will ordinarily be a family member. If there is no available or appropriate statutory health attorney, the Adult Guardian will be appointed as the adult’s decision-maker.50
Queensland’s guardianship legislation requires that consent be obtained for all healthcare provided to an adult with impaired capacity, with the exception of urgent, minor, or uncontroversial healthcare.51 Importantly, 'healthcare' is defined to include the withholding or withdrawing of a life-sustaining measure.52 The operative effect of these statutory provisions is that consent of a substitute decision maker is required for the lawful withdrawal of life-sustaining treatment from an adult with impaired capacity, even if that treatment is regarded by doctors as futile or inconsistent with good medical practice.
The legislative requirements, including that the consent is documented in the clinical records,53 make clear that this requirement was expressly contemplated and intended by the legislature.54 This creates a situation where a substitute decision-maker can potentially demand that futile treatment continue.
Although there is no explicit explanation for the imposition of the consent requirement within the legislation or its accompanying instruments,55 academics have hypothesised that the parliamentary intent in this drafting was to impose additional safeguards for policy reasons, given the serious implications of the decision to withhold or withdraw treatment from a person with impaired capacity.56 Concerns have, however, been raised because the legislation does not treat futile treatment differently from other treatment57 and may impose a burden on substitute decision-makers by making them feel responsible for the decision to end the life of their relative.58
This sentiment was echoed by Coroner Barnes in Inquest into the death of June Woo who suggested that disputes which arise owing to the unwillingness to make a decision in this regard could be understood as an expression of grief.59
Criteria that must be applied to the decision
The guardianship framework requires that a substitute decision-maker apply the 'Health Care Principles' and 'General Principles' prescribed by the legislation when making a decision to withhold or withdraw treatment.60
The Health Care Principles (HCP) have recently been amended,61 and at the time of writing have not yet been considered by the courts or tribunals. The amending HCP provide that power for a health matter should be exercised in the way least restrictive of the adults’ rights62 and only if the Substitute Decision-Maker (SDM) takes into account several factors including:
- the benefits versus of the burdens of health care,63 and
- the effect of the proposed healthcare on the adult’s dignity and autonomy,64 and
- consent or refusal of healthcare considers the principles of respect for inherent dignity and worth.65
Significantly, since the amendments, the HCP no longer explicitly refer to the 'best interests' of the adult in making a decision.66 While the above factors reflect some of the considerations noted by the courts when considering best interests, this amendment means that the statutory approach no longer directly aligns with the common law which is ultimately determined by the 'best interests' of the person.
If a SDM does not provide their consent to withdraw treatment, there are several avenues available to the parties to resolve a dispute that have been retained by the framework, including by application to the Tribunal or Public Guardian,67 or by redress outside of the statutory regime in the Supreme Court’s parens patriae jurisdiction where the best interests test will be applied.68 However, the life-sustaining treatment cannot lawfully be withdrawn or stopped without the consent of the SDM,69 and therefore, must continue until there is an order of a Court or Tribunal authorising the withdrawal.
This can be seen to create a difficult ethical position for the treating clinicians who must maintain treatment which they consider to be futile in the interim,70 and in circumstances where there is no common law duty to provide 'futile treatment' to a patient. It also means that, from a practical perspective, a health care provider is required to bring the matter before a court if it wishes to lawfully discontinue 'futile treatment'. This differs to other jurisdictions, where, while any party may seek court or tribunal orders regarding the discontinuation of 'futile treatment' for certainty, it is not strictly necessary for a healthcare provider to do so where treatment is clearly futile..
Conclusion
A review of UK and Australian decisions concerning the withholding and withdrawal of life-sustaining treatment reveals that courts will consider intrusive, burdensome treatment which is unlikely to confer benefit to be futile and against a patient’s best interests. Courts attempt to take an objective approach in assessing the benefits and burdens of treatment to a patient, although it may be unavoidable that the balancing approach bears an outcome that reflects the individual values of the assessor.
While the courts rarely depart from unanimous medical opinion, notable decisions such as Northridge have highlighted that doctors are fallible and capable of reaching premature conclusions. The consent requirement created by Queensland’s statutory regime for adults is perhaps intended as a safeguard for this fallibility, albeit posing issues of inconsistency for decision-makers.
The recent Battersbee decisions are a further reminder of the difficulties courts face when asked to intervene and consider whether life sustaining treatment is in a person’s best interests. The intense media interest and multiple court proceedings has prompted calls for consideration of alternative, and less adversarial, options for resolving disputes of this nature.71
1 Great Ormond Street Hospital for Children NHS Foundation Trust v Yates and others
[2017] EWHC 972 (Fam); [2018] 1 All ER 569; 157 BMLR 1 (Fam).
2 Barts Health NHS Trust v Dance & Ors [2022] EWHC 1435 (Fam).
3 Barts Health NHS Trust v Dance & Ors [2022] EWFC 80 [2] Hayden J.
4 Barts Health NHS Trust v Dance & Ors [2022] EWFC 80 at [25], [26] Hayden J.
5 Above, at [46].
6 Above, at [45], [46].
7 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241; BC200008272 at [554]; Messiha v South East Health [2004] NSWSC 1061; BC200407600 at [28].
8 Airedale National Health Service Trust v Bland [1993] AC 789; 1 All ER 821; 2 WLR 316; Crim LR 877; confirmed in Messiha v South East Health [2004] NSWSC 1061; BC200407600 ('Messiha') [28].
9 See, for example, Airedale (above); confirmed in Messiha at [28].
10 Airedale,
above n 8, [1993] AC 789 at 858–59 per Lord Keith.
11 Wellesley v Wellesley (1828) 4 ER 1078 at 1080–81 per Lord Redesdale.
12 Dept of Health and Community Services (NT) v JWB and SMB (Marion’s case)
(1992) 175 CLR 218; 106 ALR 385; [1992] HCA 15; Marion, In re (No 2) (1992) 17 Fam LR 336; (1994) FLC 92-448. See also: Family Law Act 1975 (Cth) s 67ZC.
13 Guardianship and Administration Act 2000 (Qld) s 240.
14 Guardianship and Administration Act 2000 (Qld) s 43.
15 Guardianship and Administration Act 2000 (Qld) s 79 which provides that it would not be an offence to withhold or withdraw treatment with the necessary authorisation.
16 L Willmott et al 'Withholding and Withdrawing Life-sustaining Treatment in a Patient’s Best Interests: Australian Judicial Deliberations' (2014) 201(9) Medical Journal of Australia 545.
17 Airedale National Health Service Trust v Bland [1993] 1 All ER 821; AC 789; 2 WLR 316; Crim LR 877.
18 Above.
19 Airedale NHS Trust v Bland [1993] 1 All ER 821 at 834–35.
20 Above, at 848.
21 Above, at 825, 826, 848.
22 Auckland Area Health Board v Attorney-General (NZ) [1993] 1 NZLR 235 at 250; (1992) 8 CRNZ 634; 5 PRNZ 119. It is of interest to note that Lord Browne-Wilkinson suggested in Airedale
at 883 that continuing such treatment would be unlawful and an assault. This has not been affirmed by any subsequent English or Australian authorities
23 See, for eg, Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71; BC200711267; In the Application by Herrington; Re King
[2007] VSC 151; BC200703616; Messiha v South East Health [2004] NSWSC 1061; BC200407600.
24 L Willmott et al 'Withholding and Withdrawing Life-sustaining Treatment in a Patient’s Best Interests: Australian Judicial Deliberations' (2014) 201(9) Medical Journal of Australia 545.
25 Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71; BC200711267.
26 In the Matter of Herrington; Re King [2007] VSC 151; Slaveski v Austin Health [2010] VSC 493.
27 Messiha v South East Health [2004] NSWSC 1061 at [22]–[24].
28 Australian Capital Territory v JT (2009) 4 ACTLR 68; 232 FLR 322; [2009] ACTSC 105; BC200907782.
29 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241; BC200008272.
30 Messiha v South East Health [2004] NSWSC 1061; BC200407600; at [9].
31 L Willmott et al 'Withholding and Withdrawing Life-sustaining Treatment in a Patient’s Best Interests: Australian Judicial Deliberations' (2014) 201(9) Medical Journal of Australia 545, 547.
32 [2004] NSWSC 1061; BC200407600.
33 See, eg, In the Application by Herrington Re King [2007] VSC 151; BC200703616; Melo v Superintendent of Royal Darwin Hospital (2007) 21 NTLR 197; [2007] NTSC 71; BC200711267; Slaveski v Austin Health (2010) 32 VR 129; [2010] VSC 493; BC201008091.
34 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241; BC200008272.
35 L Willmott, B White, and N Bhatia 'When is it in a child’s best interests to withhold or withdraw life-sustaining treatment? An evolving Australian jurisprudence' (2018) 25(4) JLM 944 at 946–47.
36 TS & DS v Sydney Children’s Hospital Network ('Mohammed’s case') [2012] NSWSC 1609; BC201210658; at [69].
37 Above, at [62].
38 TS & DS v Sydney Children’s Hospitals Network (Mohammed’s Case)
[2012] NSWSC 1609 [89]–[90].
39 TS & DS v Sydney Children’s Hospitals Network (Mohammed’s Case)
[2012] NSWSC 1609 [69].
40 Hospital v S (A Minor) [2019] NSWSC 642; BC201904690; at [21].
41 Above, at [72].
42 Above, at [75].
43 Above, at [73].
44 Raqeeb (by her litigation friend, XX) v Barts NHS Foundation Trust; Barts NHS Foundation Trust v Begum [2019] EWHC 2530 (Fam); [2020] 3 All ER 663; [2020] 1 FLR 1298; [2019] All ER (D) 19 (Oct) ('Tafida’s case').
45 Above, at [186].
46 Explanatory Notes, Guardianship and Administration Bill 1999 (Qld) 1.
47 Powers of Attorney Act 1998 (Qld), s 63; and Guardianship and Administration Act 2000 (Qld), s 66.
48 Or the Office of the Public Guardian if no next of kin.
49 Guardianship and Administration Act 2000 (Qld) s 9; Powers of Attorney Act ss 62, 63(1) referred to as 'Statutory Health Attorney' in the legislation.
50 Powers of Attorney Act (Qld) s 63(2).
51 Guardianship and Administration Act 2000 (Qld), ss 63, 63A, 64.
52 Guardianship and Administration Act 2000 Sch 2 s 5(2).
53 Guardianship and Administration Act 2000 s 66B(2)(a).
54 L Willmott et al 'The Legal Role of Medical Professionals in Decisions to Withhold or Withdraw Life-Sustaining Treatment: Part 2 (Queensland)' (2011) 18(3) Journal of Law and Medicine 523.
55 For e.g., the Explanatory Notes or any of the amending Explanatory Notes.
56 B White and L Willmott, Rethinking Life-Sustaining Measures: Questions for Queensland: An Issues Paper Reviewing the Legislation Governing Withholding and Withdrawing Life-Sustaining Measures, QUT, 2005.
57 Above, n 54 at 533.
58 Above, citing, BF Murphy 'What has happened to clinical leadership in futile care discussions?' (2008) 188 Med J Aust 418.
59 Queensland Coroner’s Court, State Coroner Barnes SM, 01 June 2009.
60 Guardianship and Administration Act 2000 ss 11B, 11C.
61 Explanatory Note, Guardianship and Administration and Other Legislation Amendment Bill 2018 (Qld) 22–23.
62 Guardianship and Administration Act 2000 (Qld) s 11B(9)(b).
63 Guardianship and Administration Act 2000 (Qld) s 11C(3)(g).
64 Guardianship and Administration Act 2000 (Qld) s 11C(3)(h).
65 Guardianship and Administration Act 2000 (Qld) s 11C(2)(b).
66 Previously contained in Guardianship and Administration Act 2000 (Qld) Sch 1 Pt 2 (repealed).
67 Guardianship and Administration Act 2000 (Qld) s 43.
68 Above, s 240.
69 Guardianship and Administration Act 2000 (Qld) s 79.
70 L Willmott et al 'Futility and the Law: Knowledge, Practice and Attitudes of Doctors in End Of Life Care' (2016) 16(1) QUT Law Review 54.
71 See, for example I Freckleton 'Futility of Treatment for Dying Children: Lessons from the Charlie Gard Case' (2017) 25 JLM
7; Great Ormond Street Hospital for Children NHS Foundation Trust v Yates (No 2) [2017] EWHC 1909 (Fam); [2018] 1 All ER 623; [2017] 4 WLR 131 ; [2017] All ER (D) 148 (Jul) at [20] per Francis J.
