Your Body, Their Veto: The Hidden Rule Stripping Australians of the Right to Fight Brain Cancer
Imagine this. You are 47 years old. You have a partner, two kids, a mortgage, a job you love. A headache that won't go away turns out to be a glioblastoma. The most common kind of brain cancer in Australia. Your oncologist tells you, gently, that the median survival with standard treatment is around twelve to fifteen months. The five-year survival rate is 6.3%.[1]
You do what anyone would do. You read everything. You get a second opinion. A third. You find a surgeon, an Australian surgeon, who looks at your scans and says, yes, I can try. It is high risk. It might not work. You could die on the table. You could come out worse than you went in. But there is a chance.
You say yes. Eyes open. Risks understood. Family on board.
And then you discover the thing nobody tells you until you are standing in it. Your "yes" might not be enough.
What the law actually says
For more than thirty years, the High Court of Australia has said one thing, clearly and repeatedly. Your body is yours.
In Marion's Case in 1992, the Court put it in language that has not been bettered since: every person's body is inviolate.[2] That same year, in Rogers v Whitaker, the Court said your doctor must tell you every risk that matters to you, and once they have, your decision is the legal end point.[3] Not the doctor's preferences. Not the hospital's risk appetite. Not the regulator's view of whether you are being sensible. Yours.
In 2009, the Court went further. In Stuart v Kirkland-Veenstra, it held that the law gives "primacy" to personal autonomy. The State cannot generally override what a competent adult chooses to do with their own life.[4]
So here is the doctrine, in plain English. You can refuse any treatment, even if refusing kills you. You can consent to any treatment, even if consenting might. The law trusts you to weigh your own life.
That is the law. That is what the textbooks say.
What actually happens
Now meet the operational reality. The reality the textbooks do not capture.
Between you and the surgeon willing to operate sit, in order: the hospital's credentialing committee (which decides what your surgeon is allowed to do in their building), the Royal Australasian College of Surgeons (which sets the standards), the Medical Council of NSW (or its equivalent in your state), the Health Care Complaints Commission, and behind all of them the Health Practitioner Regulation National Law with its disciplinary tribunals.[5]
Each of these bodies is staffed by serious people doing what they think is the right thing. None of them, individually, is the villain. But they have a collective effect that the law on the books does not anticipate. They have created a system in which a competent adult, with a terminal diagnosis, who has signed every consent form, who has watched every video, who has had every conversation, can still find themselves told: no, you cannot have this surgery in Australia.
The case that changed everything
In July 2023, a NSW Professional Standards Committee handed down its decision in the disciplinary case against Professor Charlie Teo.[6] You have probably heard of him. The reasoning of that decision is what you have probably not heard about, and it is what matters here.
The Committee found, accepting expert evidence, that the surgeon "had an overriding ethical duty to refuse surgery" in the relevant circumstances, and that the type of operation in question was the kind that should be conducted in a clinical trial setting or subject to other ethical scrutiny.[7]
Read that again, slowly. An overriding ethical duty to refuse. Even where the patient knows the risks. Even where the patient has chosen.
Stewart and Freckelton, writing in the Journal of Law and Medicine, characterised this as a significant articulation of regulatory ethics that sits in tension with the patient-autonomy principle the High Court spelled out in Rogers v Whitaker.[8] In plain language, the case law says your "yes" is the end of the conversation. The Teo reasoning says it might be only the beginning.
Allowed to die. Not allowed to try.
Here is the part that, once you see it, you cannot unsee.
If you have a terminal diagnosis in Australia today, you can lawfully access Voluntary Assisted Dying.[9] All six states have legislated for it. The ACT joined them on 3 November 2025. You see two doctors, you make three requests, you have your capacity confirmed, and the law will help you end your life. The autonomy principle, in this narrow context, has been operationalised by parliaments. The safeguards exist. They work.
But if you want to attempt to live, to take a high-risk shot at more time with your kids, your spouse, your unfinished business, there is no equivalent pathway. The same patient, the same capacity, the same family conversations, but the autonomy switches off the moment the goal flips from dying with assistance to fighting for life with assistance.
The United States, for all its problems, has at least named this asymmetry. Their federal Right to Try Act, signed in May 2018, acknowledges that a competent adult facing terminal illness has the right to attempt access to last-resort investigational treatment with informed consent and physician engagement.[10] It is narrow. It has limits. It does not compel any manufacturer to supply, any doctor to prescribe, or any insurer to pay. But it exists.
In Australia, the autonomy at the end of life is statutory. The autonomy at the frontier of treatment is not.
What this means for AUSTRALIAN families
It means that families with terminal brain cancer diagnoses are, right now, doing one of three things.
Some accept palliative care, which is appropriate and high-value medicine for those who choose it.
Some get into the clinical trials Australia does run. The MAGMA platform trial and the Australian Brain Cancer Mission have opened doors that did not exist a decade ago. Eligibility is narrow but the door is real.[11]
And some, the ones with savings or a GoFundMe campaign or both, board planes. Spain. Germany. Switzerland. The United States. Per-case costs of AUD 140,000 to 460,000.[12] A 2024 Insure&Go survey found 42% of Australians would consider travelling overseas for life-saving cancer treatment not available here.[13] They are voting with their feet because the Australian system has not given them a way to vote at home.
The point
Australian common law trusts you to make decisions about your own death. It trusts you to refuse a transfusion, to sign a "do not resuscitate" order, to walk out of hospital with metastatic disease and not return. It trusts you completely.
It just does not, in operational practice, trust you to fight.
That is not a constitutional limit. It is a policy choice. Made by no parliament. Made through a slow accretion of credentialing rules, disciplinary precedents, professional college standards, and the everyday risk aversion of clinicians who have watched colleagues lose their careers.
The fix does not require a constitutional convention. It requires Australia to do, for autonomy at the frontier of care, what every state has now done for autonomy at the end of care: build a safeguard architecture that respects the choice, captures the data, and gets out of the way of competent adults making the hardest decision of their lives.
Your body should not need their permission. Your "yes" should mean yes.
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[1] Australian Institute of Health and Welfare, Cancer Data in Australia (Web Report, October 2025): brain cancer estimated incidence 7.6 per 100,000 in 2025; IDH-wildtype glioblastoma accounts for 64% of brain cancers and has a 5-year relative survival of 6.3% (2017-2021 data). Median survival for newly diagnosed glioblastoma with standard treatment is approximately 12-15 months: see, eg, R Stupp et al, 'Effects of Radiotherapy with Concomitant and Adjuvant Temozolomide versus Radiotherapy Alone on Survival in Glioblastoma' (2009) 10(5) Lancet Oncology 459. ↩
[2] Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218, 233-234 (Mason CJ, Dawson, Toohey and Gaudron JJ). ↩
[3] Rogers v Whitaker (1992) 175 CLR 479, 490. ↩
[4] Stuart v Kirkland-Veenstra (2009) 237 CLR 215, [88] (Gummow, Hayne and Heydon JJ). ↩
[5] Health Practitioner Regulation National Law Act 2009 (Qld) sch ('National Law'), as adopted in each State and Territory; Health Care Complaints Act 1993 (NSW). ↩
[6] Health Care Complaints Commission v Dr Charles Teo [2023] NSWMPSC 2 (12 July 2023). ↩
[7] Ibid; see also Christopher Rudge, 'What the Ruling Against Neurosurgeon Charlie Teo Means', The Conversation (online, 19 July 2023). ↩
[8] Cameron Stewart and Ian Freckelton, 'Lessons from Re Teo: Unconventional Practice and the National Law' (2023) 30(3) Journal of Law and Medicine 520. ↩
[9] Voluntary Assisted Dying Act 2017 (Vic); Voluntary Assisted Dying Act 2019 (WA); End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas); Voluntary Assisted Dying Act 2021 (Qld); Voluntary Assisted Dying Act 2021 (SA); Voluntary Assisted Dying Act 2022 (NSW); Voluntary Assisted Dying Act 2024 (ACT) (commenced 3 November 2025). The Northern Territory has not yet enacted VAD legislation. ↩
[10] Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act of 2017, Pub L No 115-176, 132 Stat 1372 (signed into law 30 May 2018), codified at 21 USC § 360bbb-0a. ↩
[11] Cooperative Trials Group for Neuro-Oncology, MAGMA Trial Protocol (Australia, 2024); Australian Brain Cancer Mission ($120 million, ten-year research commitment, October 2017). ↩
[12] Better Health Channel, Medical Tourism and Insurance (Department of Health Victoria, Web Page, 2024); per-case cost ranges drawn from Caruso, Restoring Patient Autonomy in High-Risk Neurosurgery (White Paper, 2025). ↩
[13] Insure&Go Australia, Medical Tourism on the Rise: 57% of Aussies Consider Treatment Abroad (Media Release, 2024). ↩
