Advance Care Directives

An advance health directive is a written document that allows an adult to set out directions for future medical treatment decisions. They are also sometimes called advance care directives or ‘living wills’.

When a patient is deemed to lack the capacity to consent to medical treatment, advance health directives are a useful resource for health practitioners when making treatment decisions.

A person prepares an advance health directive when they have capacity, setting out their treatment preferences. This means that if they later lose capacity their treatment wishes are still able to be communicated to a health professional.

Legal Status

Statutory Advance Health Directives

Advance health directives are provided for in legislation in most states and territories in Australia, with the exception of New South Wales and Tasmania. There is considerable variation in the terminology and requirements for validity.

The table below sets out the jurisdictions that have statutory advance health directives.

Statutory Advance Health Directives in Australia
Jurisdiction Terminology Legislation
VIC Refusal of Treatment Certificate Medical Treatment Act 1988 (VIC)
ACT Health Direction Medical Treatment (Health Directions) Act 2006 (ACT)
NSW Advance Care Directive Guardianship Act 1987 (NSW)
QLD Advance Health Directive Power of Attorney Act 1998 (QLD)
NT Direction to Refuse Extraordinary Measures Natural Death Act 1988 (NT)
WA Advance Health Directive Guardianship and Administration Act 1990 (WA)
SA Anticipatory Grant or Refusal of Consent Consent to Medical Treatment and Palliative Care Act 1995 (SA)
 

Common Law Advance Health Directives

The common law continues to apply and operates concurrently with the legislative schemes in Victoria, Australian Capital Territory, Northern Territory, Western Australia and South Australia. In Queensland the law is less clear, however there is a view that the common law no longer applies in relation to advance directives.

In the jurisdictions where the common law principles continue to apply, a two-tier system operates with respect to advance directives. For example, in Victoria, Refusal of Treatment Certificates are governed by the Medical Treatment Act 1988 (Vic), while advance health directives also exist at common law.

In Australia, there have been only a few cases on common law advance health directives. In 2009 a document refusing kidney dialysis completed by an adult with capacity was held by the New South Wales Supreme Court to constitute a valid advance health directive. In the same year, the Western Australian Supreme Court looked at the refusal of life-sustaining treatment by a man with capacity, and found that it was valid.

The Australian Capital Territory Supreme Court found that the refusal of life-sustaining care by a man who lacked capacity was not a valid directive. An advance health directive may be valid at common law if all of the following conditions are satisfied:

1.  Capacity: The adult must have had capacity at the time the advance health directive is made and is able to communicate the decision in some way.

  • At common law, a person has capacity if he or she is able to comprehend and retain information material to the treatment decision, especially as to the likely consequences of having or not having the treatment in question. He or she must also be able to ‘use the information and weigh it in the balance as part of the process of arriving at a decision’.

2.  Voluntariness: The directive must be made voluntarily without coercion or undue influence.

3.  Specificity: The adult intended the refusal to apply to the specific situation that later arose.

There are no formal requirements at common law that that mean an advance health directive needs to be in writing and be witnessed, though these elements will be persuasive in suggesting that the directive has been made and meets the requirements.

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