Key legislation and terminology
Queensland’s laws relating to withholding and withdrawing life-sustaining treatment and guardianship are contained in two statutes: the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld) (the guardianship laws).
Health care includes withholding or withdrawing life-sustaining treatment if commencing or continuing the treatment would be inconsistent with good medical practice (i.e. medical and ethical standards, and practice and procedures of the medical profession in Australia).
Substitute decision-making in Queensland at the end of life
When will a substitute decision-maker be needed to make health care decisions for another person at the end of life?
A person is presumed to have capacity to make health care decisions. A person will have capacity if they can:
- understand the nature and effect of decisions about the health care;
- freely and voluntarily make decisions about the health care; and
- communicate the decision in some way.
If a person no longer has capacity, a substitute decision-maker will need to make the health care decision on the person’s behalf. This situation often may arise when a person nears the end of their life.
Who can be a substitute decision-maker for health care decisions at the end of life?
If the person who has lost capacity had previously made an Advance Health Directive which gives a direction about their health care or medical treatment, that direction must be followed. If the person does not have an Advance Health Directive, the first person on the following list who is available, willing and able to act can be a substitute decision-maker, and make health care decisions or provide consent to health care for a person with impaired capacity (in order of priority):
- A guardian or guardians appointed by the Queensland Civil and Administrative Tribunal (QCAT). Anyone over the age of 18 who is not a paid carer or health professional of the person without capacity can be appointed by QCAT as a guardian. if there is no person available or appropriate to act as a guardian, the Public Guardian can be appointed. For more information about becoming a guardian, visit the Office of the Public Guardian.
- An attorney appointed by the person either under an Enduring Power of Attorney (appointed under the Powers of Attorney Act); or an Advance Health Directive.
- A default decision-maker, known as a Statutory Health Attorney. This will be the first person from the following list who is available and willing to make the decision:
- The spouse or partner of the person, so long as the relationship is close and continuing. In Queensland a spouse includes a de facto partner (one of two persons who live together as a couple on a genuine domestic basis but are not married or related), regardless of their gender.
- An unpaid carer of the person.
- A close relative or friend of the person.
The unpaid carer, and close friend or relative must be aged 18 years or over. Often decisions about health care at the end of life will need to be made urgently and quickly, and there is no Statutory Health Attorney available at short notice, or they may be unwilling to make the decision, or they may not be an appropriate person to make the decision. In these situations the Public Guardian will be the default decision-maker.
Substitute decision-making by Queensland’s guardianship bodies
What is the role of the Queensland Civil and Administrative Tribunal (QCAT) in relation to decision-making at the end of life?
QCAT has the power to make decisions on behalf of a person who has lost capacity, including consenting to the withholding or withdrawing of life-sustaining treatment. For further information about QCAT’s role, visit QCAT.
QCAT may also appoint a guardian, provide advice or directions to guardians and make declarations about a person’s capacity.
What is the role of the Public Guardian in relation to decision-making at the end of life?
The Public Guardian is an independent office created under the Public Guardian Act 2014 (Qld) and has a number of functions relating to substitute decision-making at the end of life. The Public Guardian can:
- Be appointed as a guardian or attorney or be the default decision-maker if no one else is available.
- Intervene and make the decision about end of life treatment if there is disagreement between guardians, attorneys or Statutory Health Attorneys, or if they are acting, or proposing to act, inappropriately.
- Act as mediator to resolve such disputes.
The Office of the Public Guardian can provide information and advice to the community about end of life decision-making and the Queensland guardianship regime.
Health care decision-making by a substitute decision-maker
What health care decisions can a substitute decision-maker make?
A substitute decision-maker can make most decisions about medical treatment for a person at the end of life, including consenting, or refusing to consent, to medical treatment, including life-sustaining treatment. However, some restrictions apply in relation to consenting to the withholding or withdrawing of life-sustaining treatment.
In the case of a guardian or attorney the decisions which can be made will depend on the powers granted to the guardian by QCAT, or the powers granted to the attorney in the Advance Health Directive or in the enduring power of attorney. If there are no limitations on a guardian or attorney's powers, they will be able to do anything the person could have done if they had capacity, including making most medical treatment decisions.
How do substitute decision-makers make decisions?
All substitute decision-makers, in deciding whether or not to consent to medical treatment or health care for a person at the end of life, 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 a substitute decision-maker's decision be overridden?
Yes. In Queensland if a substitute decision-maker has made a decision to withhold or withdraw life-sustaining treatment, the decision will only be followed by a health professional if he or she believes that commencing or continuing the treatment would not be good medical practice. This means that if the health professional believes the life-sustaining treatment should continue because it is good clinical practice, then the substitute decision-maker’s decision to withhold or withdraw the treatment will be overruled.
Can health professionals withhold or withdraw treatment without the consent of a patient’s substitute decision-maker?
No. In Queensland it is offence for a health professional to carry out health care (including withholding and withdrawing life-sustaining treatment) on a person with impaired capacity unless:
- there is legislation allowing the health care to be given without consent;
- consent to the health care is given by a substitute decision-maker; or
- the health care is authorised by the Supreme Court.
This results in an unusual legal position in Queensland in relation to futile treatment. Generally, a substitute decision-maker cannot require futile treatment be given to a person who lacks capacity. However, as ‘health care’ in Queensland includes withholding or withdrawing life sustaining measures, medical treatment that is futile would also fall within the definition. This means health professionals must obtain consent before withholding or withdrawing treatment, even if that treatment is futile. Arguably, a substitute decision-maker can insist that treatment be given to a person even though the treating health professional may regard it as futile.
In emergency situations life-sustaining treatment can be withheld or withdrawn in some cases.
What happens if a person with impaired capacity objects to the withholding or withdrawing of treatment?
The guardianship legislation enables a person with impaired capacity to object to the provision of health care, including withholding and withdrawing life-sustaining treatment. If a substitute-decision maker decides that treatment should be withheld or withdrawn, their decision will generally not operate if the person with impaired capacity objects to it.
Who makes decisions about life-sustaining treatment in an emergency situation?
In an emergency situation, a substitute decision-maker’s consent is not required. Instead, life-sustaining treatment can be withheld or withdrawn from a person without consent if the person’s health professional believes:
- the person has impaired capacity;
- starting or continuing the treatment would be inconsistent with good medical practice; and
- in accordance with good medical practice, the decision to withhold or withdraw treatment needs to occur immediately.
A health professional will therefore be protected from criminal and civil liability for acting without consent in emergency situations. However, if a health professional knows the person objects to the withholding or withdrawal, they cannot proceed without consent from the person’s substitute decision-maker.
Life-sustaining treatment in this context does not include artificial hydration and nutrition.
Complaints and dispute resolution
End of life decision-making can be a very challenging and emotional time for the patient, their family and friends, and for substitute decision-makers and health professionals. Sometimes disputes arise about medical decision-making for the person.
If anyone (including a health professional) is concerned about a substitute decision-maker or disagrees with the decisions being made, or a decision cannot be reached about the person’s care and treatment, that person can contact the Office of the Public Guardian for further information and advice about dispute resolution options.
If a guardian or attorney makes a decision or refuses to make a decision about a health matter for a person, and the decision, or refusal is contrary to the health care principle, the Public Guardian may make a decision about the health matter.
A person can also apply to QCAT or the Supreme Court for a review or revocation of the substitute decision-maker’s appointment, or for the Tribunal or Court to make the health care decision.
For further information about complaints processes and conflict resolution relating to guardianship and end of life decision-making visit the Office of the Public Guardian.
Where a patient, their family or carer wishes to raise concerns that a patient's health condition is getting worse or not improving as expected while the patient is in hospital or receiving care, they may invoke Ryan's Rule. This rule is not for general complaints, but instead provides a three-step process to address these issues:
1. Talk to a nurse or doctor about the concerns.
2. If the response is not satisfactory, talk to the nurse in charge of the shift.
3. If the response is not satisfactory, phone 13 HEALTH (13 43 25 84) (or ask a nurse to call on your behalf) to request a Ryan's Rule Clinical Review. This will enable a nurse or doctor to review the patient and assist.
Willmott, Lindy, White, Ben. Parker, Malcolm, & Cartwright, Colleen (2011) The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: Part 2 (Queensland). Journal of Law and Medicine, 18(3), pp. 523-544.