First-aiders and professionals endeavouring to render assistance to an incompetent person (eg: child, comatose adult) in need of assistance are sometimes faced with requests by family or others to refrain on the grounds that the person would not have wanted assistance or that the treatment proposed is burdensome.

When the situation applies to an incompetent adult (unable to communicate rationally) who has previously stated in writing their intention, the situation is quite clear and the person’s desires must be followed. Of importance, is that spouses and relatives of incompetent adults do not normally have authority to decline treatment of their loved one unless this has been given force by an appropriate legal directive.

If competent adult states that treatment is not wanted, this request should be followed since to do otherwise is ethically and legally wrong.

However, when the situation pertains to a child (an incompetent legal person), the child’s parents or legal guardian have the right to refuse such treatment provided that this is in the ‘best interests’ of the child. However, medical practitioners, and presumably other professional healthcare personnel, also have a duty of care to always act in the ‘best interests’ of the child.

When conflict arises, the question arises: what is meant by ‘best interests’?

Although used freely in medical and legal contexts, the term ‘best interests’ is a nebulous term. With respect to children, legally, Courts are directed to act in the ‘best interests’ of a child in section 68F of the Family Law Act 1975 (Clth). In determining what these might be, consideration must be given to current wishes of the child, relationships with parents and others, any changeable circumstances, the child’s maturity, protection from physical and psychological harm and any other matters that the Court  considers relevant.

From a practical viewpoint, ‘best interests’ may be defined from an examination of common law cases involving incompetent adults and children 1.

Essentially, ‘best interests’ may be defined as:

  1. Avoidance of futile treatment. This is somewhat facile. It leads to the question of: What is futility? What may seem futile to one person is not to another, but from a legal common law perspective, it may be stated as actions that only serve to prolong death rather than save life.
  2. A consideration of the burden versus benefit of treatment. This requires a consideration of the results of withholding treatment versus its application.
  3. Consideration of the quality of life if treatment is given and survival ensues.

When faced with a situation in which it is unclear whether treatment should be given or withheld in the incompetent adult’s ‘best interests’, it is justifiable to give treatment, otherwise a possible benefit may be foregone. If it so happens that treatment is later considered not be beneficial, it can be withdrawn since both ethically and legally, withholding and withdrawing treatment are identical.

  1. Tibballs J. The legal basis for ethical withholding and withdrawing

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