Advance Health Directive

 

What is an Advance Health Directive?

An Advance Health Directive (AHD) is sometimes referred to as a ‘living will’ and is a document that includes instructions about a person’s future health care.

Anyone who is over the age of 18 years of age and is capable of understanding the nature and consequences of their health care decisions and the nature and effect of the AHD can generally make an AHD.

A direction in an AHD operates only while the person is unable to make decisions about the matter in the AHD. The direction is as effective as if the person gave the direction when decisions about the matter needed to be made and the person was able to make the decision about the matter.

Why should a person consider making an AHD?

You should consider making an AHD to avoid problems that may arise when you cannot express your wishes because you are injured or unwell.

When your family or friends are aware of your wishes and attitudes to healthcare and medical treatment, family and friends are more likely to be comfortable that they have made the right decision for you.

When should a person make an AHD?

The best time to make an AHD is before any urgent health condition arises. The benefit of planning in advance is that your family or people who will be caring for you will have the opportunity to respect your choices. You should consider making an AHD if you:

  • are about to be admitted to hospital;
  • have a medical condition that may affect your ability to make decisions; and/or
  • have a medical condition that may cause serious complications.

What does a person need to know about the legal situation in Queensland?

Capacity

Adults are presumed to be capable of making decisions for themselves. If a person understands the choices they are making the person is said to have ‘capacity’.

An AHD comes in to effect only if a person is unable to make their own decisions. This is referred to as a lack of capacity or impaired capacity. ‘Impaired capacity’ refers to a person’s inability to make a decision in an area of their life. A person may have impaired decision making capacity due to an intellectual disability, acquired brain injury, mental illness, dementia or some other cause.

Generally, someone can be regarded as having the capacity to make decisions if they are able to:

  • understand the basic medical situation;
  • understand the nature of the decision they are making, including the implications (benefits, risks, and what the medical treatment involves) and alternatives to the treatment proposed, including the implication of no decision;
  • use or weigh up the information, such as by asking questions;
  • retain the information (short-term memory); and
  • freely and voluntarily communicate a decision in some way (for example, by talking, using sign language or any other means).

If it is not clear whether a person has capacity, a doctor may conduct a number of simple tests on that person. In more complicated cases, a capacity assessment may include a psychiatric evaluation.

Consent

A doctor must not treat a patient without the person agreeing to the treatment. This is called consent. Doctors are required to respect a patient’s decisions if the patient is capable of making the decision.

For consent to be valid, a patient should be told the following:

  • their diagnosis;
  • general nature and effects of the recommended treatment;
  • risks associated with the recommended treatment;
  • alternative treatment options and risks associated with alternative options;
  • risk associated with no treatment; and
  • significant risks for the particular patient (if any).

A person should be told that they have the right to refuse the recommended treatment. Doctors must respect the person’s decision, even if the refusal of treatment or treatment the person chooses will lead to harm or the death of the person. In Queensland, the right to refuse treatment is found in the common law. The common law is law that has been developed over time from decisions made by the courts originally in England and then in Australia.

However, this is a very difficult decision-making area as the law is complex. While a person has a right to refuse treatment, Queensland law states that no-one can insist on medical treatment that their doctor thinks is not appropriate, would be of no benefit to the person, or would cause the person harm. Queensland law states that a doctor who reasonably believes that a person’s instructions in an AHD are inconsistent with good medical practice or that circumstances have changed (such as advances in medicine) will not face any liability if they fail to follow the person’s AHD.

Exception for consent – emergency and necessity

There are exceptions to the need to obtain consent in some circumstances.

In some situations a person will not be able to consent to treatment that may save their life. There are exceptions to the need for consent which are established under decisions made by the courts and Queensland laws. The two main exceptions are:

  • if the treatment is required to save a person’s life, or
  • in an emergency situation where it is impractical to obtain the person’s consent.

In these situations a doctor can treat a person without getting consent.

There are other exemptions under Queensland law, for example:

  • Mental Health Act 2016 – a person under an involuntary treatment or forensic order can be treated for their mental illness without the consent of the person.
  • Transport Operations (Road Use Management) Act 1995 – provides for a doctor or health professional to take blood and urine samples to check for alcohol and drug levels from people who have been involved in a car accident.

What if a person regains capacity?

An AHD comes into effect only when a person loses capacity.

If a person regains capacity and decides to refuse treatment, even if the decision to refuse treatment is contradictory to the person’s AHD, the later decision to refuse medical treatment overrides.

What does a person need to consider before making an AHD?

A person should think clearly about the values that are important to them and the type of medical treatment they would want if they became ill. For example, a person should consider:

  • if treatment could prolong life, what level of quality of life would be acceptable?
  • how important is it to be able to communicate with family and friends?

A person should discuss an AHD with their health providers before completing an AHD. It is important to discuss an AHD with a doctor who is familiar with a person’s medical history and opinions and can explain any medical terms. A doctor must complete Section 5 of the AHD which states a person is not suffering from any condition that could affect the person’s ability to understand the decisions made in the AHD.

A person should also seek legal advice before completing an AHD. A solicitor can explain the legal position in Queensland in relation to AHD’s and provide advice on the implications of a person’s decisions.

How does a person make an AHD?

The most common way to complete an AHD is to use the form provided by the Department of Justice and Attorney-General: http://www.justice.qld.gov.au/__data/assets/pdf_file/0007/15982/advance-health-directive.pdf

However, it does not need to be written on this form, as long as it has been signed by the person making the AHD and is signed and dated by an eligible witness.

Completing an Advance Health Directive

The following steps need to be taken:

1. Complete sections 1 to 4 of the advance health directive form. The form refers to a number of medical terms, and it is therefore a good idea to discuss these with your doctor.
2. Ask your doctor to complete section 5 of the form.
3. Complete section 6 of the form. If you have already completed an enduring power of attorney for personal/health matters, this section is where you say how your attorney(s) can be contacted if necessary.
4. Complete section 7 of the form only if you have not yet completed an Enduring Power of Attorney for personal/health matters, and wish to do so now. An attorney you appoint in this section can make health-care decisions for you if you cannot do so and your Advance Health Directive is unclear. It is not compulsory to appoint an attorney.
5. Complete section 8 of the form in the presence of a witness, who must be
    • Over the age of 21
    • A JP or solicitor
    • Not related to you
    • Not your paid carer (receiving a carer payment from Centrelink doesn’t make someone a “paid carer”)
    • Not a beneficiary of your will
    • Not have power of attorney or be related to anyone who does.
The witness must then complete section 9 of the form.
6. If you appointed an attorney in section 7 of the form, you must have that person complete section 10 of the form (accepting the appointment).
7. You should provide certified copies of the document to people who are likely to be involved if you lose the capacity to make health care decisions – including your doctor and your close family members.
8. Section 11 of the form is to be filled out each time you review the document, to confirm that you are still satisfied with its contents. It is recommended that advance health directives be reviewed every 2 years, or after any significant change in your health.

Practical considerations when making an AHD

A person who has made an AHD should tell those close to them about the AHD. After making an AHD, a person should keep the AHD in a safe place somewhere at home.

A person who has made an AHD may consider providing the following people with copies of the AHD:

  • Family member/s and/or close friend/s;
  • substitute decision maker/ attorney;
  • doctor/hospital.

An AHD is a legal document and any copies made should be certified. This means a Justice of the Peace or a lawyer has to sign each page of the AHD as a true copy.

Queensland Health has also published a useful guide and template for making an Advance Health Directive in cases involving mental health: https://www.health.qld.gov.au/__data/assets/pdf_file/0036/639864/Advance-Health-Directive-Guide-and-Form.pdf

What should an AHD include?

An AHD should include the following:

(a) what life-sustaining measures the person wishes to receive in the event they suffer a terminal, incurable or irreversible illness or condition, or are in a persistent vegetative state (if any);
(b) what life-sustaining measures the person does not wish to receive in the event they suffer a terminal, incurable or irreversible illness or condition, or are in a persistent vegetative state (if any). If the medical treatment will save a person’s life, it will most likely be a ‘life sustaining measure’. Life-sustaining measures can include treatments such as CPR, ventilation and tube feeding (which means providing someone with food through a tube, usually because they are unable to swallow).
(c) whether the person has any particular allergies or religious beliefs that will affect the life-sustaining treatment to be given;
(d) whether the person wishes to donate tissue or organs after death (and if so, which ones); and
(e) whether the person has appointed an enduring guardian or other substitute decision-maker.

A doctor cannot carry out a person’s wishes in an AHD if doing so would be in breach of the law. For example, a request for euthanasia in an AHD would not be followed because under the Queensland Criminal Code it is a criminal offence to accelerate the death of a person by performing an act or failing to perform an act. It is also an offence in Queensland to assist another person to commit suicide.

In Queensland, the Powers of Attorney Act 1998 sets out the directions and information a person may include in an AHD. Queensland law states that a person may prepare an AHD to give directions and information about health matters and special health matters for his or her future health care.

Can a person change or revoke an AHD?

A person can change or revoke an AHD while they remain mentally capable of doing so. It is a good idea to review the AHD every 2 years or if your health changes significantly.

If a person wants to make changes to an AHD, the person should destroy the current AHD and make a new AHD. If the person has given their doctor, attorney or other people a copy of their previous AHD, they should provide those people with a copy of the new AHD and ask them to destroy the previous AHD.

A person may also revoke an AHD at any time. Under Queensland law this must be done in writing, but no specific form is required and the person must arrange for a person to witness their signature. The witness does not need to be a justice of the peace, commissioner for declarations, notary public or a lawyer.

What if a person made an AHD in another state?

Queensland law recognises an AHD made in another state that complies with the requirements for the AHD in that state.

Decisions about life-sustaining measures and the legal obligations of doctors to their patients

AHD’s are legally binding documents that must be followed. A failure to comply with a lawful request in an AHD can result in both criminal and civil sanctions against a health provider.

Sometimes disputes arise when a patient’s doctors believe that treatment should not be provided to the patient, but his or her family/and or loved ones disagree and want treatment to be given. There have been cases in the courts where family members have gone to court seeking to prevent doctors from withholding or withdrawing treatment from their loved ones.

The intention of the Queensland law is to provide a person with the right to make their own decisions about medical treatment while at the same time ensuring that any decisions about refusing or withdrawing life sustaining measures is a decision in accordance with good medical practice.

Under Queensland law, a person has a right to refuse medical treatment including life-sustaining treatment only if:

  • the person has a terminal illness or condition that in incurable and the person’s doctor is of the opinion that the person might be expected to die within 1 year due to the illness or condition;
  • the person has severe and irreversible brain damage, but vital functions of the body such as heart beat and breathing continue (referred to as a ‘persistent vegetative state’);
  • the person is permanently unconscious; or
  • the person is so seriously ill or injured that the person is unlikely to recover to the extent that the person can survive without the continued use of life-sustaining measures.