This paper investigates the content of Australian policies that address withholding or withdrawing life-sustaining treatment to analyse the guidance they provide to doctors about the allocation of resources.
All publicly available non-institutional policies on withholding and withdrawing life-sustaining treatment were identified, including codes of conduct and government and professional organization guidelines. The policies that referred to resource allocation were isolated and analysed using qualitative thematic analysis. Eight Australian policies addressed both withholding and withdrawing life-sustaining treatment and resource allocation.
Four resource-related themes were identified: (1) doctors’ ethical duties to consider resource allocation; (2) balancing ethical obligations to patient and society; (3) fair process and transparent resource allocation; and (4) legal guidance on distributive justice as a rationale to limit life-sustaining treatment.
Of the policies that addressed resource allocation, this review found broad agreement about the existence of doctors’ duties to consider the stewardship of scarce resources in decision-making. However, there was disparity in the guidance about how to reconcile competing duties to patient and society. There is a need to better address the difficult and confronting issue of the role of scarce resources in decisions about life-sustaining treatment.
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While a detailed conceptual discussion is beyond the scope of this article, we note that definitions of rationing, like definitions of futility, are contested (Walker and Egede 2016).
For example, in Northridge v Central Sydney Area Health Service  NSWLR 1241, O’Keefe J stated at  “The exercise of the parens patriae jurisdiction should not be for the benefit of others (Re Eve (1987) 31 DLR (4th) 1 at 34), including a health care system that is intent on saving on costs.” Similarly, in Messiha v South East Health  NSWSC 1061 at  Howie J noted that a reference made by the treating doctor about the availability of the intensive care unit resources was “… arguably … an irrelevant matter, at least so far as the welfare of the patient was concerned … and might have been taken as a form of pressure on the family to agree with the hospital’s decision.”
Rationing policies could include guidelines about organ transplantation or dialysis. However, courts can still be reluctant to engage with whether a decision can be challenged on the basis of scarce resources. See Manning and Paterson’s (2005) criticism of Shortland v Northland Health Ltd, a New Zealand case in which a patient was denied access to dialysis. The High Court (unreported, 6 November 1997, Salmon J) indicated that resources were only a minor factor and the Court of Appeal ( 1 NZLR 433, 443) denied there was any resource element to the decision.
This definition was developed from Goodridge (2010, 1166), which described institutional policies as: “declarations of the organizations’ deeply held values … instructing employees on how to conduct business in a legal, ethical and safe manner.” For further discussion of the method see Close et al. 2019a, 420–422.
Examples of clinical guidance documents excluded are those focused on unnecessary diagnostic tests (see, e.g., Choosing Wisely Australia and https://www.racgp.org.au/advocacy/position-statements/view-all-position-statements/clinical-and-practice-management/responding-to-patient-requests-for-tests), organ allocation guidelines (e.g., https://www.tsanz.com.au/organallocationguidelines/), and dialysis policies (e.g., https://kidney.org.au/advocacy/advocacy-and-policy/resources-publications/publications/clinical-guidelines).
As noted in footnote 2, in Messiha the court stated that resources were “an irrelevant matter, at least so far as the welfare of the patient was concerned”: Messiha v South East Health  NSWSC 1061. In TS & DS v Sydney Children’s Hospitals Network (Mohammed’s case)  NSWSC 1207 the court acknowledged that there could be cases when resource-based non-treatment rationales are used. Garling J stated at , “[t]here may be occasions when such issues arise. If they do, there are undoubtedly complex questions of public health policy to be considered, and also whether, a Court is best fitted to engage in that area of discourse. Fortunately, in this case, this issue did not arise.”
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Eliana Close was funded by scholarships from the Australian Government Research Training Program and the National Health and Medical Research Council Centre of Research Excellence in End of Life Care.
The authors declare no competing interests.
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Close, E., White, B.P. & Willmott, L. Balancing Patient and Societal Interests in Decisions About Potentially Life-Sustaining Treatment. Bioethical Inquiry 17, 407–421 (2020). https://doi.org/10.1007/s11673-020-09994-7
- Medical futility
- End-of-life care
- Clinical decision-making
- Healthcare rationing
- Resource allocation