In Queensland a person can make an Advance Health Directive i.e. a statutory Advance Care Directive. Advance Health Directives are regulated by the Powers of Attorney Act 1998 (Qld).
Does Queensland have both common law Advance Care Directives and statutory Advance Directives (Advance Health Directives)?
No. Queensland only has statutory Advance Care Directives i.e. an Advance Health Directive. Common law Advance Care 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 to decide about the health care, unless the Directive refuses life-sustaining treatment. In that case the Directive will only apply if specific conditions are met.
Learn more about Queensland's law on capacity at Capacity and consent to medical treatment.
What can an Advance Health Directive cover?
An Advance Health Directive allows a person to give directions about his or her future health care, 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 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?
An Advance Health Directive that refuses life-sustaining treatment will apply (i.e. can be followed) only if the following criteria are met:
- The person'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; or
- they are in a persistent vegetative state (severe and irreversible brain damage while basic bodily functions such as heart beating continue); or
- 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.
- The person must also have no reasonable prospect of regaining capacity, and
- If the person, in their Advance Health Directive, refuses to receive hydration (fluid) or nutrition artificially (i.e. 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 decision-making capacity. This involves:
- understanding the nature and effect of the Directive; and
- being able to make the Directive freely and voluntarily.
View the full capacity test for making an Advance Health Directive at Capacity and consent to medical treatment (under 'Queensland').
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. There is also an explanatory guide for completing an Advance Health Directive. If the form is not used, for the Directive to be valid and effective it must still comply with the signing and witnessing requirements described 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 attorney under an Enduring Power of Attorney.
- Witnessed (visit the Office of the Public Guardian Queensland for further information about who can be a witness and witnessing requirements).
- 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 has capacity to make a Directive he or she does not have to receive any information about the treatment they are requesting or refusing in their Advance Health Directive.
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 in an Advance Health Directive to make decisions about health care when they can no longer make decisions for themselves. This includes decisions to withhold or withdraw life-sustaining treatment.
There is a specific test for whether a person has capacity to appoint an attorney in their Advance Health Directive. This is discussed at Capacity and consent to medical treatment (under 'Queensland').
Another option is for a person to complete an Enduring Power of Attorney (EPA) appointing someone as their attorney for decisions about personal matters, including health care (and decisions to withhold or withdraw life-sustaining treatment). There is also a specific capacity test a person must satisfy to make an EPA. For more information on Enduring Powers of Attorney visit the Queensland Government.
Can a person have more than one Advance Health Directive or Enduring Power of Attorney, or both types of documents?
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 inconsistent, and the later Directive will be valid.
If a person has an Enduring Power of Attorney (EPA) giving an attorney power to make health care decisions, and later makes another EPA giving the same power to a different attorney, the earlier EPA will be revoked to the extent it gives power for the matter, and the later EPA will be valid.
If a person has:
- an Advance Health Directive and a later EPA which gives an attorney power for a health matter, or
- an EPA which gives an attorney power for a health matter, and later gives a direction about that same health matter in an Advance Health Directive,
the Advance Health Directive will prevail and have effect.
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.
These principles are discussed in detail at Queensland Treatment Decisions, and in the Queensland Government’s factsheet General principles and health care principles under Queensland’s guardianship framework.
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 need to some other authority to decide about treatment, for example, consent from the person’s substitute decision-maker.