Premature Babies: Courts and Withdrawal of Treatment

With a recent legal case in Australia challenging clinical presumptions of a child's best interest and leaving the decision in the hands of a court when the child's parents disagree, the question has been raised as to what role the court should play when parents and doctors disagree.

In the UK, doctors and parents have a raft of laws aimed at navigating this legal and ethical mindefield, where, as stated in the Journal of Medical Ethics, "it is accepted practice for children born at or beyond 25 weeks’ gestation to be treated according to the child’s perceived best interests even if this is not in accordance with parental wishes."

However, in Australia, we currently have a caselaw precedent of 2 on this particular area with the case of Baby D (2011) (in which an infant had her ventilation tube removed causing her death and the court refused to apply criminal sanctions) and the case of Baby Mohammed (2012) (where the courts agreed that withdrawing treatment was in the best interests of the child due to his incurable condition) discussing entirely different factual scenarios and issues where parents and doctors disagree over treatment.

It is far too early to tell which way the Australian Courts should go on this issue however, the precept of all family law practices has always been "the best interests of the child". With detailed statutory definitions in the Family Law Act 1975 (Cth) and an extensive body of case law on the subject area, maybe adopting reasoning from this area of law might be a way to combat this difficult area.

For more information, read the article at The Conversation and the review at The Australian Doctor for two very different opinions on the same issue.

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