End of Life Law in Australia

Queensland

In Queensland a person can make an ‘Advance Health Directive’ (a statutory Advance Directive).

Key legislation

In Queensland Advance Health Directives are created and regulated by the Powers of Attorney Act 1998 (Qld).

Does Queensland have both common law Advance Directives and statutory Advance Directives (Advance Health Directives)?

No. Queensland only has statutory Advance Directives (Advance Health Directives). Common law Advance Directives were intended to have legal effect in Queensland, however the wording and structure of the Queensland guardianship legislation has removed their legal effect.

When will an Advance Health Directive apply?

An Advance Health Directive will apply as soon as the person loses capacity, unless the Advance Health Directive refuses life-sustaining treatment. If the Advance Health Directive refuses life-sustaining treatment, there are conditions that must be satisfied before it can apply.

What can an Advance Health Directive cover?

An Advance Health Directive allows a person to give directions about his or her health care in the future, including refusing life-sustaining treatment. Other directions which can be given include:

  • Consent that future health care be given, even if the person objects to that health care in the future at the time the care or treatment is given.
  • Authorisation for a substitute decision-maker to physically restrain, move or manage the person in order to provide the health care.

When will an Advance Health Directive which refuses life-sustaining treatment apply?

If the Advance Health Directive refuses life-sustaining treatment, the following criteria must be met for that direction to be followed:

  1. The patient’s health is sufficiently poor that one of the following situations applies:
  • they have a terminal illness or condition that is incurable or irreversible, and it is the opinion of the treating doctor and another doctor that the person is expected to die within a year;
  • they are in a persistent vegetative state (severe and irreversible brain damage while basic bodily functions such as heart beating continue);
  • they are permanently unconscious with brain damage so severe there is no reasonable prospect of them regaining consciousness; or
  • they have an illness or injury of such severity that they will be likely to always require life-sustaining treatment to survive.

AND

  1. The patient must also have no reasonable prospect of regaining capacity.
  2. If the person, in their Advance Health Directive, refuses to receive hydration (fluid) or nutrition artificially (that is, through a tube), it can only be withheld or (if it has already been started) withdrawn if starting or continuing to give the person hydration or nutrition would be contrary to good medical practice.

What are the formal requirements to make an Advance Health Directive?

To make an Advance Health Directive a person must be over the age of 18, and have capacity. To have capacity a person must understand the nature and effect of decisions; make decisions freely and voluntarily; and communicate them in some way. The person must also be able to understand the nature and likely effects of each direction, when the direction will operate, when the direction can be altered, and when the person will no longer be able to alter the direction.

An Advance Health Directive must also be:

  • In writing. An Advance Health Directive form can be used but it is not compulsory to use this form. If the form is not used, the Directive, to be valid and effective, must still comply with the signing and witnessing requirements discussed below.
  • Signed by the person, or a person instructed on behalf of the person. The instructed person must be over 18 and not a witness or the person’s enduring power of attorney.
  • Signed and dated by a health professional who is not the witness or connected to the person. The health professional must certify that the person appeared to have capacity.

Does a person have to receive information about the treatment he or she is requesting or refusing in an Advance Health Directive?

No, as long as the person meets the requirement of having capacity, he or she does not have to receive any information about the treatment they are requesting or refusing in the Directive.

Can a person have more than one Advance Health Directive or Enduring Power of Attorney, or both an Enduring Power of Attorney and an Advance Health Directive?

In Queensland, if a person has more than one Advance Health Directive and there are inconsistencies between the two Directives, the earlier Directive will be revoked by the later Directive to the extent to which it is an inconsistent, and the later Directive will prevail.

If a person gives an attorney power to make decisions about health matters under an Enduring Power of Attorney, and later makes another Enduring Power of Attorney giving power for that matter to a different attorney, the earlier Enduring Power of Attorney will be revoked to the extent it gives power for the matter.

If a person has:

  • An Advance Health Directive and a later Enduring Power or Attorney which gives an attorney power to make decisions about a health matter, or
  • An Enduring Power of Attorney which gives an attorney power to make decisions about health matters, and later  gives a direction about that same matter in an Advance Health Directive,

the Advance Health Directive will prevail and have effect.

Who can be appointed as a decision-maker under an Advance Health Directive and what are their powers?

A person with decision-making capacity can appoint an attorney for health and personal matters in an Advance Health Directive to make decisions for them about health care, including the withholding or withdrawal of life-sustaining treatment when they can no longer make decisions for themselves.

Another option is for a person to complete an Enduring Power of Attorney appointing someone as their attorney for decisions about personal matters, including health care (and decisions to withhold or withdraw life-sustaining treatment). For more information on Enduring Powers of Attorney, visit the Office of the Public Guardian, or Queensland Health’s Advance Care Planning website.

How does a decision-maker make decisions?

When making decisions about health care for a person who has lost capacity, an attorney under an Advance Health Directive or an Enduring Power of Attorney must follow the General Principles and Health Care Principle set out in the guardianship laws.

The General Principles are detailed in schedule 1, Part 1 of the Guardianship and Administration Act 2000(Qld). These principles include considering the person’s religious and cultural values and beliefs, the person’s characteristics and needs, the person’s views and wishes, and the person’s right to respect for his or her human worth and dignity.

The Health Care Principle requires a substitute decision-maker to make decisions:
  • in the way which is least restrictive of the person’s rights; and
  • only if it is necessary to do so to maintain or promote the person’s health or wellbeing, or if it is in the person’s best interests.

The Health Care Principle also requires the substitute decision-maker, to the greatest extent possible, to seek and take into account the person’s views and wishes, and the information given by the person’s health professionals.

If a substitute decision-maker is having difficulty making a health care or treatment decision and requires assistance, he or she may apply to QCAT for advice or directions.

Can an Advance Health Directive be revoked (cancelled)?

A person can revoke (cancel) an Advance Health Directive while he or she still has capacity. The revocation must be in writing.

Can a health professional decide not to follow an Advance Health Directive?

In Queensland, a health professional does not have to follow an Advance Health Directive if:

  • a direction is inconsistent with good medical practice;
  • a direction is uncertain (although they must first consult a substitute decision-maker if one is appointed under the Advance Health Directive); or
  • circumstances have changed to the extent that the direction is no longer appropriate (for example, changes in medical science mean the direction should not be acted upon).

In those circumstances a health professional will not be liable for failing to comply with the Directive. The health professional will therefore need some other form of authority to determine treatment, for example, by obtaining consent from the substitute decision-maker to provide or withhold treatment.

Further resources

For more information on Advance Health Directives in Queensland, visit the Office of the Public Guardian’s website, or Queensland Health’s Advance Care Planning website.

Publications

Willmott, Lindy, White, Ben, Tilse, Cheryl, Wilson, Jill, & Purser, Kelly. (2013). Advance health directives: competing perceptions, intentions and use by patients and doctors in Queensland. QUT Law Review, 13(1), pp. 30-51.

Tilse, Cheryl, Wilson, Jill, McCawley, Anne Louise, Willmott, Lindy, & White, Ben. (2011). Enduring documents: improving the forms, improving the outcomes. University of Queensland, Brisbane, QLD.

White, Ben. & Willmott, Lindy. (2004). Will you do as I ask? Compliance with instructions about health care in Queensland. Queensland University of Technology Law and Justice Journal, 4(1), pp. 77-87.