While active euthanasia is not legal in Australia, passive euthanasia (the withdrawal of life sustaining treatment, nutrients or medication), is legal,89 as is administering pain relief in the knowledge that it may hasten death.90 Doctors can withhold or withdraw treatment if there is an Advance Directive or Do Not Resuscitate order in place or if the doctor believes the treatment is futile or the burden of the treatment will outweigh the benefit.91 In the absence of a definition of futility, doctors often make decisions based on what is considered to be in ‘the best interest’ of the patient.
The term ‘best interests’ is an incredibly vague and value laden concept, often accompanied by statements regarding quality of life or overwhelming burden of treatment and may reflect certain presumptions, value judgements and narrow medical, rather than holistic, views on life quality. This raises concerns under both Articles 10 and 25.
There is legitimate concern that the general prejudices held about the quality of life of people with disability have led doctors to more readily consider treatment futile for people with disability.92 Reports on deaths of people with disability in residential care suggest that ‘poor quality of life’ as perceived by medical professionals is a key factor driving the decision to limit treatment.93
Evidence also suggests that lack of training and awareness of disability issues leads to unequal treatment for people with disability and a greater likelihood that doctors will refuse treatment on the basis of futility if the patient has a disability.94
The withdrawal or withholding of life prolonging and life-saving treatment is a significant issue for newborn children and infants with disability. It is a common practice to withhold or limit treatment to newborn children with disability with the intention of allowing them to die, on the basis that treatment is not in the child’s ‘best interests’, as perceived by the medical practitioner.95
