Approximately 440,000 deaths occur annually in Australia as a result of decisions to withdraw or withhold life-sustaining treatment from both competent and incompetent adults. The consequences for doctors who misapprehend the law or misinterpret their legal responsibilities may be criminal charges for murder or manslaughter if treatment is withheld inappropriately, or assault charges, or civil actions, or disciplinary and coronial proceedings, if treatment is provided without appropriate consent or authorisation. The issue is not purely a legal one. Conflict among family, friends, supporters, doctors and other health professionals during end-of-life decision-making is associated with adverse consequences for everyone involved.
Whether, and how, to regulate the provision of end-of-life healthcare has emerged as a prominent theme in law and policy debates in recent decades. There is an ongoing discussion about the ethical, philosophical, theological and practical dimensions of dying. In the midst of this debate, the courts are required to resolve the particular disputes that come before them. The disputes reveal changing social attitudes towards end-of-life decision-making and care, and the struggle to come to terms with sophisticated medical technology and the consequent relocation of death from the home to the hospital. They also reveal a changing regulatory landscape and the impact of international human rights principles on this area of law.
End-of-life care raises questions about how the law should engage with concepts such as the quality of life, medically futile treatment, the distribution of scarce medical resources, who should be entitled to make end-of-life decisions and, if so, on what basis. The current position in law is that a distinction is drawn between: (1) withdrawing and withholding life-sustaining treatment at the end of life; and (2) actions that are intended to cause death, such as (active) euthanasia and assisted suicide. Within these two categories, the rules that apply with respect to individuals who have the capacity to make their own decisions are different from those that apply to those who do not. In either situation, the legal responsibilities of all parties warrant scrutiny, both because the determination of capacity or competence is uncertain and because the law in many jurisdictions arises at the interface of common law, statutory provisions and practice guidelines, where the legal landscape is often complex, opaque and in flux.