An Advance 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 directives, including common law advance directives, and statutory advance directives.
About an Advance Directive
An Advance 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 Directive, a person can request and/or refuse medical treatment.
Advance Directives may also be referred to as an ‘advance health directive’, ‘living will’, ‘refusal of treatment certificate’, ‘advance personal plan’ or ‘medical direction’.
In Australia there are two types of Advance Directives:
- Common law Advance Directives: these directives are created and governed by the common law (i.e. decisions made by judges in the courts).
- Statutory Advance 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 Directives.
The law on Advance Directives is different in each Australian State and Territory. In some jurisdictions, both statutory Advance Directives and common law Advance Directives may be recognised by the law, while in others, only one will be.
Types of treatment that can be covered by an Advance Directive
Advance 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 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 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 Directives cannot be used to ask another person to deliberately end the life of the person making the directive (for example, through euthanasia or assisted suicide.
Law on Advance 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 Directive and/or a statutory Advance Directive.
In Victoria, a person can make a common law Advance Directive that refuses treatment, and/or a statutory Advance Directive.
In Queensland, only statutory Advance Directives are legally binding.
In Tasmania and New South Wales only common law Advance Directives are legally binding. In those states statutory Advance Directives do not exist.
There is scope for an Advance Directive (including a common law Advance 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.
Notifying health practitioners about your Advance Directive
It is possible to share advanced care planning documents with your healthcare providers by uploading the documents to your online My Health Record, which can be accessed through the MyGov website. For more information visit the Australian Digital Health Agency.
Further information about Advance Directives in each State and Territory can be found at the following links:
White, Ben, Willmott, Lindy and Then, Shih-Ning, ‘Adults who lack capacity: substitute decision making’ in Ben White, Fiona McDonald and Lindy Willmott (eds), Health Law in Australia (2nd ed, Law Book Co, 2014).
White, Ben, Tilse, Cheryl, Wilson, Jill, Rosenman, Linda., Strub, Tanya, Feeney, Rachel & Silvester, William. (2014). Prevalence and predictors of advance directives in Australia. Internal Medicine Journal, 44(10), pp. 975-980.
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.
Willmott, Lindy, White, Ben, & Mathews, Ben. (2010). Law autonomy and advance directives. Journal of Law and Medicine, 18, pp. 366-389.
Willmott, Lindy. (2010). Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis.Journal of Law and Medicine, 17, pp. 556-581.
Willmott, Lindy. (2009). Advance Directives Refusing Treatment as an Expression of Autonomy: Do the Courts Practise What They Preach? Common Law World Review, 38(4), pp. 295-341.
Willmott, Lindy & White, Ben. (2008). Solicitors and enduring documents: current practice and best practice. Journal of Law and Medicine, 16(3), pp. 466-487.
Willmott, Lindy. (2007). Advance directives to withhold life-sustaining medical treatment: eroding autonomy through statutory reform. Flinders Journal of Law Reform, 10(2), pp. 287-314.
Parker, Malcolm, Stewart, Cameron, Willmott, Lindy, & Cartwright, Colleen. (2007). Two steps forward, one step back: advance care planning, Australian regulatory frameworks and the Australian Medical Association. Internal Medicine Journal, 39(9), pp. 637-643.
Willmott, Lindy, White, Ben, & Howard, Michelle. (2006). Overriding advance refusals of life-sustaining medical treatment. Medicine and Law, 25, p. 647.
Willmott, Lindy, White, Ben, & Howard, Michelle. (2006). Refusing advance refusals: advance directives and life-sustaining medical treatment. Melbourne University Law Review, 30(1), pp. 211-243.
White, Ben P. & 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.