· 2026-11-09T22:40:30+0000 · 25 posts

Interim life-support order lifted: the court's protective power serves the patient's best interests

A brother urgently asked the Supreme Court of Victoria to keep his unconscious brother on ICU life support. An interim order was made, then lifted four days later: independent medical evidence showed further treatment was futile and burdensome, so there was no serious question to be tried.

In Marijancevic v Melbourne Health [2026] VSC 729, the Supreme Court of Victoria (Clements J, Common Law Division, Practice Court) dealt with an urgent application by a self-represented man who asked the Court to stop a public hospital from withdrawing life-sustaining treatment from his brother, who was in intensive care with a severe traumatic brain injury. The Court made an unopposed interim order on a Friday evening to keep treatment going, then lifted it four days later and dismissed the proceeding. The important point is that the Court's protective power is exercised in the patient's own best interests, not those of family or the hospital, and courts are slow to override careful, independent medical judgment. All paragraph references below are to the judgment.

Why it matters: When a family and an intensive care team disagree about end-of-life care, a court can act quickly to hold the position, but it then asks, on the medical evidence, what is in the patient's best interests and whether there is a serious question to be tried ([4], [34], [53]). It is not a decision about any general "right to die" or euthanasia.

At a glance

Court and level: Supreme Court of Victoria, Common Law Division, Practice Court (single judge, urgent interlocutory hearing)
Area of law: Practice and procedure; interim injunctions; parens patriae (protective) jurisdiction; medical treatment
Decision type: Ex tempore ruling on 27 October 2026 on whether to continue an interim injunction; reasons published 9 November 2026
Outcome: Interim injunction of 23 October 2026 lifted from 4:30pm on 27 October 2026; proceeding dismissed ([53], [57])
Test applied: Serious question to be tried, then balance of convenience; the protective jurisdiction is guided by the patient's best interests ([34], [37], [46])
Costs: No order as to the costs of the proceeding ([57])

🧩 Facts and Issues

Background

The patient, a 68-year-old man, was admitted to the Royal Melbourne Hospital on 8 October 2026 after reportedly being struck by a motor vehicle, with a severe traumatic brain injury and other serious injuries ([1], [8]–[9]). Melbourne Health operates the hospital ([3]).

The intensive care, trauma and neurosurgical teams agreed that meaningful survival was not realistic and that a shift to care focused on comfort and dignity was in his interests ([11]–[12]). Two of his brothers disagreed, asked for ongoing support to "give him a chance", and sought a second opinion ([12]). They later signed a notice that the family did not consent to withdrawal of life-sustaining treatment ([13]).

The hospital also arranged an independent assessment by a senior neurosurgeon from the Alfred Hospital, who concluded the patient would not make a meaningful recovery and recommended removing the breathing tube and palliative care ([15], [20]). The brothers rejected that review as not independent ([16]).

How the case got here

On the evening of Friday 23 October 2026, the patient's oldest brother (the plaintiff) made an urgent oral application for an interim injunction (a temporary court order) restraining the hospital from withdrawing or withholding mechanical ventilation and other life-sustaining treatment ([1], [3]).
He had not yet filed his originating motion (the document that starts the proceeding), so he undertook (formally promised) to file it by 1pm on 26 October. It was filed on 27 October ([4], [6]).
The Court made orders that evening, which the hospital did not oppose, requiring treatment to continue until the hearing and determination of the proceeding or further order ([4]–[5]).
On 26 October the Court received five affidavits and heard oral evidence from the ICU director ([7]–[8]).

What each side argued

The plaintiff relied on the parens patriae jurisdiction and Slaveski v Austin Health ([35]). He wanted an expert of his own choosing to assess his brother, pointing out that Slaveski allowed a short adjournment for an independent opinion ([46], [49]). His written outline also relied on the Victorian Charter of human rights, but that was not pursued at the hearing ([42]–[43]).
The hospital opposed continuing the injunction and sought dismissal. It said an independent opinion had already been obtained, there was no evidence another expert would differ, the time needed was indefinite, and no steps had been taken to engage an expert since 20 October ([47]–[48]).

The issues

Whether the plaintiff showed a serious question to be tried and, if so, whether the balance of convenience favoured continuing the injunction ([34]).
Whether a further adjournment for another opinion was warranted ([49]–[50]).

⚖️ Applicable Law – Legislation, Rules and Principles

Interim injunctions. The applicant must show a serious question to be tried at the final trial. If so, the applicant must also show the balance of convenience (a weighing of the risks of granting or refusing the order) favours granting, or here continuing, the injunction ([34]).
Parens patriae jurisdiction. The phrase means "parent of the nation". It is the Supreme Court's long-standing power to step in to protect people who cannot look after their own interests. Being unconscious can enliven (trigger) it ([35]–[36]).
Best interests. The overriding criterion is the best interests of the person's health and welfare. The jurisdiction is not exercised for the benefit of others, including the healthcare system and family members, and it is exercised cautiously ([37]). Courts are slow to interfere with treatment decisions by highly qualified doctors who have the patient's best interests in mind ([38]).
Appropriate, not futile, treatment. The Court can protect an unconscious person's right to ordinary, reasonable and appropriate treatment, as opposed to extraordinary, excessively burdensome, intrusive or futile treatment. What is appropriate is a medical matter in the first instance; the Court may act where there is doubt or serious dispute ([39]).
Medical Treatment Planning and Decisions Act 2016 (Vic), s 8. Nothing in the Act requires a health practitioner to give futile or non-beneficial treatment ([41]).

📌 Authorities Relied On

Slaveski v Austin Health (2010) 32 VR 129: unconsciousness can enliven the jurisdiction; it protects the right to appropriate, not futile or excessively burdensome, treatment; it is exercised cautiously ([35], [37], [39]). Followed, but distinguished on the adjournment point ([49]–[50]).
Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 (Marion's Case): best interests of health and welfare is the overriding criterion ([37]).
Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549: the jurisdiction is not exercised for the benefit of others ([37]).
Mercy Hospitals Victoria v D1 (2018) 56 VR 394: the Charter does not directly affect the parens patriae jurisdiction ([45]).

🧠 Analysis

Issue

Was there a serious question to be tried that justified continuing to compel the hospital to provide life-sustaining treatment that the patient's doctors considered futile and burdensome?

Rule

A serious question to be tried, then the balance of convenience ([34]), applied through the patient's best interests, with caution about overriding expert medical judgment ([37]–[39], [46]).

Application

Holding the position first, then deciding on the evidence

The Court acted that night and set a hearing within days, keeping matters stable until it could hear from the treating doctors ([4]–[5]).

The medical evidence was consistent and accepted

The specialist evidence was that the patient had no prospect of regaining consciousness, and that continued invasive life support was futile and overly burdensome; removal of the breathing tube was recommended by multiple specialists ([40]). The ICU director confirmed the patient was not brain dead, but said reflex movements were consistent with a very poor prognosis ([29]), and that comfort care, including pain relief, would continue after the tube was removed ([27]). The Court accepted all his evidence and had no doubt he had the patient's best interests in mind ([32]).

The second opinion was independent

The Court found the Alfred Hospital is a separate and independent health network from Melbourne Health ([17]). It did not need to decide whether a registrar made a comment about "adjusting" reports. Even if made, it gave no basis to doubt that the neurosurgeon's assessment was independent, impartial and professional ([18]–[19]).

Family views, however sincere, are not the test

The Court expressed great sympathy for the family and understood the plaintiff's wish for an expert of his own choosing, but the jurisdiction is guided by the unconscious person's health and welfare interests, not the interests of the hospital or family, or the family's view of who should assess the patient ([46]).

Why Slaveski did not require another adjournment

In Slaveski, a short adjournment was allowed for an independent opinion before the injunction was ultimately not extended ([49]). Here, the hospital had already arranged an appropriate, independent assessment before the case came to court ([50]). There was no evidence another expert would differ, and the time needed was indefinite while the patient continued to receive treatment the evidence showed was futile, excessively burdensome and invasive ([47]–[48]).

The Charter would not have changed the result

The Charter point was not pursued, and the Court said it would have made no difference: 19 days of life-sustaining treatment precluded a finding that the hospital failed to consider the right to life ([43]). Section 38 should not be read as making every withdrawal of ICU life support unlawful; that would be inconsistent with the Medical Treatment Planning and Decisions Act ([44]–[45]).

Conclusion

There was nothing deficient or inappropriate in the care given or in how the ICU team approached the decision ([51]), and no evidence justifying the use of the parens patriae jurisdiction to compel treatment that would be excessively burdensome, invasive and futile ([52]). Extending the injunction was not in the patient's interests, particularly his health, welfare and dignity ([33]). With no serious question to be tried, there was no legal justification for extending it ([53]).

🏛️ Outcome, Orders and Costs

The orders of 23 October 2026 ([4]–[5]):

Order 1: until the hearing and determination of the proceeding, or further order, the hospital was to continue mechanical ventilation and ICU support and therapy.
Orders 2 to 4: the hearing was adjourned to 2:15pm on 26 October; the hospital was to file affidavits and submissions by 4pm on 25 October; costs were reserved.

The orders of 27 October 2026 ([57]):

Order 1 of the 23 October orders was lifted and ceased to have effect at 4:30pm that day.
The proceeding was otherwise dismissed.
No order as to the costs of the proceeding.

The hospital was no longer restrained from making treatment decisions its doctors considered to be in the patient's best interests ([54]). The judge encouraged, but did not order, the hospital not to withdraw life support for at least 48 hours, so loved ones could visit and the plaintiff could consider urgently seeking leave to appeal ([55]–[56]).

🧭 Practical Lessons

For self-represented litigants: The Court will hear a genuinely urgent application at short notice, even before the originating document is filed, if you promise to file it. Keep that promise on time ([4], [6]).
For self-represented litigants: An interim order holding the position is not a ruling that you will win. At the next hearing you must show a serious question to be tried on the evidence ([34], [53]).
For practitioners: Where a hospital has already obtained a genuinely independent opinion, a Slaveski-style adjournment for a family-chosen opinion may not be available, especially if no expert has been engaged ([48]–[50]).

🧠 Take-Home Lesson

The parens patriae jurisdiction protects the unconscious patient, guided by his health, welfare and dignity, not by the wishes of family or the hospital ([37], [46]).
An urgent interim order can hold the position, but it will be lifted if the applicant cannot show a serious question to be tried ([34], [53]).
Courts are slow to override careful, independent medical judgment that further invasive treatment is futile and burdensome ([38], [52]).

"The court's protective power belongs to the patient. It asks what his health, welfare and dignity require."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.