An Advance Care Directive is an instruction that a person makes now about their future medical treatment or health care in the event he or she loses capacity to make decisions. They are a useful tool that people can use to communicate their wishes, in advance, to their families, friends and health professionals.
This webpage explores the law relating to Advance Care Directives, including common law Advance Care Directives, and statutory Advance Care Directives.
Making an Advance Care Directive is part of a broader process of Advance Care Planning. Information about Advance Care Planning is available from Advance Care Planning Australia.
About an Advance Care Directive
An Advance Care Directive enables a person to make decisions about future treatment or care, and to plan for the end of their life. It will only operate when a person no longer has decision-making capacity. In an Advance Care Directive, a person can request and/or refuse medical treatment.
Advance Care Directives may also be referred to as an ‘Advance Health Directive’, 'Health Direction', ‘living will’, ‘Refusal of Treatment Certificate’, ‘Advance Personal Plan’ or ‘medical direction’.
In Australia there are two types of Advance Care Directives:
- Common law Advance Care Directives: these directives are created and governed by the common law (i.e. decisions made by judges in the courts).
- Statutory Advance Care Directives: these directives are governed by specific legislation in States and Territories. All States and Territories except for New South Wales and Tasmania have legislation creating statutory Advance Care Directives.
The law on Advance Care Directives is different in each Australian State and Territory. In some jurisdictions, both statutory Advance Care Directives and common law Advance Care Directives may be recognised by the law, while in others, only one will be.
Types of treatment that can be covered by an Advance Care Directive
Advance Care Directives can be used to communicate specific instructions about particular types of medical treatment such as:
- blood transfusions;
- artificial hydration and nutrition (food and water provided through a tube into the stomach, intestine or vein);
- cardio-pulmonary resuscitation, to maintain a person’s heartbeat;
- assisted ventilation, to support a person to breathe if their lungs stop functioning.
People can also use Advance Care Directives to express general wishes about care and medical treatment, or directions about the quality of life they expect if they lose capacity. For example, a person might specify they would like to die at home rather than in hospital, or that they do not wish to receive treatment if they have an incurable terminal illness. A person might also include personal information relevant to their own care, for example, other health conditions, or details of their religious, spiritual or cultural beliefs.
Some Advance Care Directives can also be used to appoint a substitute decision-maker to make health care decisions on behalf of the person if they no longer have capacity to do so. A substitute decision-maker could be a spouse, family member or friend.
Advance Care Directives cannot be used to ask another person to deliberately end the life of the person making the directive (for example, through euthanasia or voluntary assisted dying.
Law on Advance Care Directives by State and Territory
In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia, a person can make a common law Advance Care Directive and/or a statutory Advance Care Directive.
In Victoria, a person can make a common law Advance Care Directive that refuses treatment, and/or a statutory Advance Care Directive.
In Queensland, only statutory Advance Care Directives are legally binding.
In Tasmania and New South Wales only common law Advance Care Directives are legally binding. In those states statutory Advance Directives do not exist.
There is scope for an Advance Care Directive (including a common law Advance Care Directive) made in one State or Territory to be recognised and effective in another State or Territory. However, the law on this is complex and differs between each State and Territory.
Find out more about Advance Care Directives in your State or Territory:
Notifying health practitioners about your Advance Care Directive
One way in which you can share your Advance Care Directive or Advance Care Planning documents with your health professionals is by uploading the documents to your My Health Record on the MyGov website. For more information visit the Australian Digital Health Agency.
Ben White et al, ‘Prevalence of Advance Care Directives in the community: A telephone survey of three Australian States’ (2019) 49(10) Internal Medicine Journal 1261.
Ben White, Lindy Willmott and Shih-Ning Then, ‘Adults who lack capacity: Substitute decision making’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (Thomson Reuters, 3rd ed 2018) 238, 238-54.
Ben White et al, ‘Prevalence and predictors of Advance Directives in Australia' (2014) 44(10) Internal Medicine Journal 975.
Lindy Willmott et al, 'Advance Health Directives: Competing perceptions, intentions and use by patients and doctors in Queensland' (2013) 13(1) QUT Law Review 30.
Cheryl Tilse et al, Enduring documents: Improving the forms, improving the outcomes. (Report, 2011).
Lindy Willmott, Ben White and Ben Mathews, 'Law, autonomy and Advance Directives' (2010) 18(2) Journal of Law and Medicine 366.
Lindy Willmott, 'Advance Directives and the promotion of autonomy: A comparative Australian statutory analysis' (2010) 17(4) Journal of Law and Medicine 556.
Lindy Willmott, 'Advance Directives refusing treatment as an expression of autonomy: Do the courts practise what they preach?' (2009) 38(4) Common Law World Review 295.
Lindy Willmott and Ben White, 'Solicitors and enduring documents: Current practice and best practice' (2008) 16(3) Journal of Law and Medicine 466.
Lindy Willmott, 'Advance directives to withhold life-sustaining medical treatment: eroding autonomy through statutory reform' (2007) 10(2) Flinders Journal of Law Reform 287.
Malcolm Parker et al, 'Two steps forward, one step back: advance care planning, Australian regulatory frameworks and the Australian Medical Association' (2007) 37(9) Internal Medicine Journal 637.
Lindy Willmott, Ben White and Michelle Howard, 'Overriding advance refusals of life-sustaining medical treatment' (2006) 25(4) Medicine and Law 647.
Lindy Willmott, Ben White and Michelle Howard, 'Refusing advance refusals: Advance Directives and life-sustaining medical treatment' (2006) 30(1) Melbourne University Law Review 211.