End of Life Law in Australia

Common law Advance Directives

What is a common law Advance Directive?

A common law Advance Directive is an Advance Directive created and governed by the common law (i.e. decisions made by judges in the courts).

Under a common law Advance Directive a person can specify their wishes about future health care and medical treatment, including treatment at the end of life. These Directives differ from statutory Advance Directives, which are created by legislation. For more information about statutory Advance Directives, visit our Advance Directives webpage.

It is important to note that common law Advance Directives are legally binding in some States and Territories but not in others.

When will a common law Advance Directive be valid?

To make a valid common law Advance Directive a person must:

  1. Be competent. This means the person has capacity to make the directive, and is able to communicate the decision that he or she is making about treatment.
  2. Make the decision voluntarily.

In order to be followed at a later time when a person loses capacity and a decision needs to be made about their treatment, the Advance Directive must apply to the medical treatment or health care situation that has arisen.

There are no formal requirements for a common law Advance Directive to be valid, which means it can be made orally or in writing. There is no legal requirement that when making the common law Advance Directive the person receive information about the treatment that he or she is requesting or refusing, or about the medical condition (if any) that the Advance Directive provides instructions about. A direction may be given for any reason, whether religious, social or moral, or on any other grounds.

When does a person have capacity?

Under common law, a person has capacity if they can:

  • comprehend and retain the information needed to make the decision, including the consequences of the decision; and
  • use and weigh that information as part of their decision-making process.

It is presumed that everyone has capacity to make a directive. Whether a person has capacity or not is initially decided by a health professional. In some cases a court or tribunal may be called upon to decide whether a person has capacity now, or whether they had capacity when they made an Advance Directive. If someone (a friend, family member or health professional) disputes that a person has capacity, then they are required to prove that to be the case.

For further information about capacity, including the law in each State and Territory, visit the Capacity and consent to medical treatment webpage.

When is a person’s decision to make a valid common law Advance Directive voluntary?

A person’s decision is voluntary if the person has not been subject to undue influence or pressure from another (such as a health professional, family member or friend).

Of course, during the course of medical treatment a person may discuss different treatment options and the risks associated with each option with family, friends and health professionals. It is a legitimate and normal part of a person’s decision-making process to consult with those close to him or her. Pressure or influence will only be ‘undue’ if, as a result, the decision no longer represents the will of that person.

If someone believes the decision made by the person was the result of undue influence, it is up to them to prove that any influence was undue.

When will a common law Advance Directive not apply?

A common law Advance Directive will not apply if:

  • The person’s circumstances have changed since the common law Advance Directive was first given, so that the person would not have intended it to apply to the current situation.

    An example of this is where, at the time a person made a common law Advance Directive she or he was a Jehovah’s Witness and refused blood transfusions. However by the time a decision has to be made about  treatment, the person has changed religion or renounced the Jehovah’s Witness faith. This may be a change of circumstances which would make the person’s direction inapplicable to the situation.

  • The terms of the common law Advance Directive are uncertain or are ambiguous.

    For example, in an Advance Directive a person refuses ‘heroic measures’, but not does not state what sort of medical treatment he or she would consider a ‘heroic measure’.

    Any Advance Directive should be clear and certain as to what treatment the person wants to refuse or accept in the future.

  • The Advance Directive was based on incorrect information or the person made an incorrect assumption.

    For example, a person refuses specific treatment, such as a blood transfusion, wrongly believing that other medical treatment will be an effective alternative (such as an alternative non-blood product).

  • The person is requesting treatment that is futile or non-beneficial.

    A health professional can also refuse to follow a common law Advance Directive if a person requests treatment, and a health professional believes that treatment is futile or non-beneficial. In those circumstances, the health professional cannot be required to provide treatment. For further information about the law relating to futile or non-beneficial treatment visit the Adults Stopping Treatment page.

Are common law Advance Directives legally binding in every Australian State and Territory?

No. Common law Advance Directives are not legally binding in every Australian State or Territory:

  • In New South Wales and Tasmania, common law Advance Directives are the only Advance Directives that exist and are legally binding.
  • In the Australian Capital Territory, the Northern Territory, South Australia and Western Australia both statutory Advance Directives and common law Advance Directives are legally binding.
  • In Victoria common law Advance Directives that refuse treatment and statutory Advance Directives are binding.
  • In Queensland, only statutory Advance Directives are legally binding.

Does a health professional have to follow a common law Advance Directive?

Yes. If common law Advance Directives are legally recognised within that State or Territory, and they are valid and applicable in the circumstances that have arisen, they must be followed by a health professional. This includes Advance Directives that refuse life-sustaining treatment.

A health professional may be liable under civil law and criminal law for failing to follow a valid and applicable common law Advance Directive.

If a health professional is concerned about whether the common law Advance Directive is valid or applicable, they can apply to the court for advice and clarification.

How is a common law Advance Directive created?

Common law Advance Directives can be made in writing or orally. There are no formal requirements such as signatures, dates, witnesses or particular wording.

However, if the Advance Directive is only in oral form, it may be difficult later on to prove that the directive exists, what treatment is being requested or refused, or in what circumstances the person wants the direction to apply. To ensure a common law Advance Directive has the best chance of being followed in the future by a health professional, it is recommended the Advance Directive be:

  • in writing;
  • signed and dated by the person; and
  • witnessed.

A health professional may not be comfortable following an Advance Directive if it does not meet these requirements.

Can a common law Advance Directive request certain treatment be provided?

Yes, an Advance Directive can be used to refuse or request treatment, particularly treatment at the end of life.

However, a health professional has no obligation to provide treatment that is futile or non-beneficial, even if the treatment is requested by the person in a common law Advance Directive. For further information about the law relating to futile or non-beneficial treatment visit the Adults Stopping Treatment page.

Does a person need to receive information from a health professional about the treatment they want to refuse or request in an Advance Directive?

No. There is no legal requirement for a person to consult with a health professional to seek information about the treatment that person wants to refuse or request. A person is entitled to refuse treatment in advance for any reason and on any grounds, be they social, religious, moral, rational or irrational.

Can a person revoke (cancel) a common law Advance Directive?

Yes, if a person who made the directive still has capacity he or she can revoke (i.e. cancel or withdraw) it. Once capacity is lost, the Advance Directive cannot be cancelled or revoked.

Key cases

HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam)

AE had aortic valve disease. She was born a Muslim but was raised by her mother as a Jehovah’s Witness. When she was 22 she signed an Advance Care Directive refusing blood products. The Directive included a statement that it was not to be overridden in any circumstances by a relative or other person. It also stated it could only be revoked in writing by her.

AE saw a doctor nearly two years later. At the time the doctor noted she was a Jehovah’s Witness and did not wish to receive blood products during surgery. 5 months later AE became seriously ill with severe sepsis including necrosis to her hands and feet. She was at a significantly increased risk of death if she did not receive an urgent blood transfusion as part of her treatment.

Her mother and brother argued that AE would not want to receive the transfusion but HE, her father, applied to the Court seeking an order that the Advance Care Directive did not apply. HE’s argument was that the Advance Care Directive was no longer valid or applicable as AE was marrying a Muslim man and had reverted to Islam. AE had not attended Jehovah’s Witness meetings or services for 4 months, and had agreed to reject that faith.

The Court decided the continuing validity and applicability of the Advance Care Directive was in doubt as AE’s circumstances had changed since she made it. The Court ordered it was lawful for the hospital to administer the blood transfusion.

Hunter and New England Area Health Service v A (2009) 72 NSWLR 88

A was a Jehovah’s Witness who lived in New South Wales. He had completed a document called a ‘worksheet’ that refused dialysis should he require it. One year after completing the worksheet, A was admitted to hospital with septic shock and respiratory failure. He was subsequently kept alive by mechanical ventilation and kidney dialysis.

The hospital applied to the Court asking whether A’s worksheet document was an Advance Care Directive that they should follow. The Court found that it was a Common Law Advance Care Directive, was applicable to the situation (as he was receiving dialysis), and should therefore be followed.

Re AK (Medical Treatment: Consent) [2001] FLR 129

AK suffered from motor neurone disease and stated that he wanted artificial ventilation to stop two weeks after he could no longer communicate. The court held that this Advance Directive was valid and that AK’s direction was to be followed.

W Healthcare NHS Trust v H [2005] 1 WLR 834

KH had suffered from multiple sclerosis for approximately 30 years. In order to receive nutrition she needed to have a percutaneous gastrostomy (PEG) tube re-inserted into her stomach. Her family and friends opposed this, arguing that this action was contrary to KH’s previously expressed oral wishes.

KH’s daughter gave evidence that KH had told her she did not want to be kept alive by machines. A close friend of KH gave evidence that she had repeatedly been told by KH she never wanted to be a burden to her daughters, and did not want to be kept alive if she could no longer recognise her daughters.

Despite the evidence, the Court of Appeal held that the conversations did not constitute applicable Advance Directives as they were not sufficiently clear to apply to the reinsertion of a PEG tube. The statements would have been sufficient to refuse life-support machines, but they were insufficient to refuse artificial nutrition and hydration through a tube into her stomach.

Further resources

Publications

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 Review13(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 Medicine18, pp. 366-389.

Willmott, Lindy. (2010). Advance directives and the promotion of autonomy: A comparative Australian statutory analysis. Journal of Law and Medicine2010(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 Review38(4), pp. 295-341.

Willmott, Lindy & White, Ben. (2008). Solicitors and enduring documents: Current practice and best practice. Journal of Law and Medicine16(3), pp. 466-487.

Willmott, Lindy. (2007). Advance directives to withhold life-sustaining medical treatment: Eroding autonomy through statutory reform. Flinders Journal of Law Reform10(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 Journal39(9), pp. 637-643.

Willmott, Lindy, White, Ben, & Howard, Michelle T. (2006). Overriding advance refusals of life-sustaining medical treatment. Medicine and Law25, pp. 647-661.

Willmott, Lindy, White, Ben, & Howard, Michelle T. (2006). Refusing advance refusals: Advance directives and life-sustaining medical treatment. Melbourne University Law Review30(1), pp. 211-243.

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 Journal4(1), pp. 77-87.