Choosing and Refusing Medical Treatment

By Tom Maling

Tom MalingIn what circumstances can I refuse medical treatment?

What a person can and cannot do with their body in relation to medical treatment is a topical issue. Euthanasia and assisted dying, a child’s right to gender re-assignment therapy and organ donation are all topics which frequently arise in the media.

At the heart of all medical and health treatment is a fundamental concept: consent. The common law (law made by Courts) recognises that a competent adult has a right to control their own body. At a fundamental level, you may give permission to someone to touch your body, or refuse it. This applies to medical treatment. You may choose whether or not to undergo treatment. Even if your refusal will cause you further injury or may lead to your death, or your refusal may seem irrational or incomprehensible to others, the decision is yours. If treatment were to be provided to you without your consent, this would constitute a battery at civil law.

There are some circumstances were the state may override a person’s wishes.  Common law has recognised that the State (government) has a public interest to protect and preserve the life and health of its citizens. Governments across Australia have broad powers to make laws about issues which impact on a person’s right to control their body in the health context:

  • Guardianship laws have been enacted to assist decision making for people who have lost, or never had, capacity to make competent decisions.
  • Children are in a special category, and there are limitations on what a child or their parent on their behalf may decide.
  • Health providers may provide treatment in some circumstances where it is considered necessary and consent cannot be obtained (for example, a person is unconscious when they arrive in an Emergency Department).

The recent article published 17th May 2017 in the Canberra Times, NSW assisted dying laws would leave ACT isolated, NSW MPs warn,  discusses the restrictions territory governments have to enact similar laws.

If the proposed NSW laws are passed, then it would enable a person who is a resident of NSW to access medically assisted euthanasia. This would not apply to an ACT resident. However, if the ACT resident were an adult and considered to be competent, that resident is entitled to make a decision to refuse medical treatment which may be essential to prolong their life. While they are not being medically assisted, the end result may be their death. A law legalising euthanasia is not required for a competent adult to be able to refuse medical treatment.

In a South Australian case called H Ltd v J [2010] SASC 176, a person decided to refuse medical treatment. In this matter, a resident in an aged care facility had notified the facility that, at some point in the future, she would cease eating, drinking and taking essential medication. This would cause her death. The Court determined that the resident was able to make that decision, and that “a competent adult is not under a duty to take life sustaining medication”.

The law in relation to consent has many exceptions and is complex (like many areas of law). Often, there are moral and ethical issues which are raised.

elringtons Lawyers has particular expertise in health law issues which enable us to provide accurate, timely and considered advice to consumers and professionals.

Please do not hesitate to contact Matthew Bridger or Tom Maling to discuss any consent issues you may have.

p: +61 2 6206 1300 | e:  Info@elringtons.com.au