Advance Health Directives
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: https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/power-of-attorney-and-making-decisions-for-others/advance-health-directive
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
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- 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:
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- (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);
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- (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).
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- (c) whether the person has any particular allergies or religious beliefs that will affect the life-sustaining treatment to be given;
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- (d) whether the person wishes to donate tissue or organs after death (and if so, which ones); and
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- (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.
Accessing your QCAT file
Accessing your QCAT file
When you make an application to the Queensland Civil and Administrative Tribunal (QCAT) you will need to lodge an application form and any supporting documents with the QCAT registry. The other party to the matter may also be required to file documents with QCAT to enable QCAT to deal with the application.
QCAT is also required to keep a register of certain details about each proceeding. It is sometimes a good idea to have a look at the record or register for your proceeding if you are not sure what stage the proceedings are at, to confirm what documents have been lodged with the court or to take copies of documents which are not in your possession.
This factsheet sets out how you can inspect the information kept by QCAT about your proceeding.
For information about the procedures that apply for access to information, see the fact sheet published by QCAT.
What is the record for a proceeding?
Under section 230 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) (QCAT Act), the principal registrar must keep a record containing all documents filed in the registry for the proceeding.
Who can inspect the record for a proceeding?
A party to a proceeding may inspect the record for that proceeding, free of charge (s 230(2) QCAT Act).
A person who is not a party to a proceeding may inspect the record for a fee (s 230(3) QCAT Act).
The fees for inspection are set out in Schedule 1 to the Queensland Civil and Administration Tribunal Regulation 2009.
What is the register of proceedings?
Under section 229 of the QCAT Act, the principal registrar must keep a register of proceedings.
The register must contain the following information about each proceeding:
- The proceeding file number;
- The names of the parties;
- If the proceeding is withdrawn, the date of the withdrawal;
- If the proceedings have been transferred, or partly transferred, to another tribunal, court or other entity, then certain information about that transfer; and
- QCAT’s final decision in the proceeding (Rule 100 QCAT Rules 2009).
Who can inspect the register of proceedings?
The register of proceedings must be available for inspection by the public at the Brisbane office of the registry during office hours on business days (s 229(2) QCAT Act).
A party to a proceeding may inspect the part of the register relating to their proceedings without charge (s 229(3) QCAT Act). Another person may inspect the register upon payment of the fee prescribed in the QCAT Rules (s 229(4), QCAT Act).
Can I take copies of the record or register?
Any person can take copies of documents from the record or part of the register upon payment of a fee (s 229(4)(b) and s 230(3)(b) QCAT Act). The fees are set out in Schedule 2 to the QCAT Regulation.
How can I stop another person from inspecting the record or register for my proceedings?
PLEASE NOTE: Non-publication orders do not apply to matters being heard under the Guardianship and Administration Act 2000 (Qld) (s 101(1)(a), Guardianship and Administration Act 2000 (Qld)). For more information about restricting the publication of information under that Act, see our factsheet GAA – Functions and powers of the Tribunal.
QCAT has the power to stop the publication of documents and information other than to certain persons. This is known as a non-publication order. A non-publication order can be made over:
- The contents of a document or thing produced to QCAT;
- Evidence given at QCAT; or
- Identifying information of people who have appeared before QCAT or are affected by a proceeding (s 66(1) QCAT Act).
QCAT can only make a non-publication order if it considers it necessary:
- To avoid interference with the proper administration of justice;
- To avoid endangering the physical or mental health of a person;
- To avoid offending public decency or morality;
- To avoid publication of confidential information or information whose publication would be contrary to the public interest; or
- For any other reason in the interests of justice (s 66(2) QCAT Act).
If a non-publication order has been made over documents or information contained in the record for a proceeding or the register of proceedings, then only people specified in the order may access that information. You can apply to QCAT for a non-publication order under s 66(3) of the QCAT Act using QCAT Form 40 – Application for miscellaneous matters.
This resource is current as of 21 February 2024
Going to QCAT factsheets
- Appealing a QCAT decision – Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal
Disclaimer
The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.
Alternative Dispute Resolution
Alternative Dispute Resolution
Alternative dispute resolution (ADR) is the term used to describe methods apart from a court hearing which you may use to help solve your legal problem. ADR may be used for everything from neighbour disputes regarding a fence, to divorce settlements, to multi-million dollar commercial contract disputes. In ADR, an impartial person assists those in disagreement to solve the issues between them and reach an outcome that suits them both. Although the independent person chosen by the parties directs the ADR procedure, the parties retain control over the main issues of the dispute and generally reach a mutual agreement.
ADR methods provide a flexible and often quicker and easier means of resolving new disputes early, as well as resolving lengthy disputes which have been running with no end in sight. ADR can be used at an early stage in the dispute before a lot of legal costs have been incurred and both sides have become fixed in their positions. Most importantly, with ADR, the solution is up to you – you are not asking an independent umpire, like a judge, to impose his or her decision.
When can I use ADR processes?
Courts generally expect parties to participate in some form of ADR to try to resolve their legal disputes. ADR can be used at any time in the dispute, from the early stages before it goes to court, right up until when the dispute is ready for trial.
ADR is not limited to a particular type of dispute. Examples are:
- family and child mediation;
- community mediation;
- victim-offender mediation;
- equal opportunity conciliation;
- workers’ compensation conciliation;
- tenancy conciliation;
- commercial arbitration.
Depending on the circumstances, participation in ADR may be voluntary or mandatory. Parties may agree to use ADR when the dispute arises. Alternatively, a contract, code of practice or set of rules may require parties to use ADR. Many courts and tribunals require the parties to attempt to resolve their dispute in an ADR process before proceeding to trial. In Queensland, all state courts have the power and in some cases will require the parties to attend either mediation or case appraisal.
For example, in the Family Court, while there is a voluntary mediation service available, the parties can also be required to attend compulsory conferences in an attempt to resolve their differences. The Commercial and Consumer Tribunal and Retail Shop Lease Tribunal also require the parties to attend mediation, as does the Human Rights Commission. Mediation in the form of a compulsory conference is also required as part of the pre-court procedures of the Personal Injuries Proceedings Act 2002 (Qld) (section 36).
It is important that even if you are engaging in ADR, that you commence court proceedings by filing the relevant court documents within the relevant time frames. Failure to commence court proceedings within the relevant time frame may mean that you lose the right to commence legal action later on if ADR is unsuccessful. The court action can then be stayed (delayed) pending the outcome of the ADR method.
What different types of ADR processes can I use?
Which ADR process you decide to use depends on which is more likely to be successful and appropriate to your dispute. ADR service providers will usually give specific information about their processes to parties interested in using them.
| Type of ADR | Description of what is involved |
|---|---|
| Assisted Negotiation |
|
| Mediation |
|
| Conciliation |
|
| Case appraisal |
|
| Arbitration |
|
How do I prepare for ADR?
In preparing for an ADR procedure, you should:
- understand the process which will be followed;
- identify what outcomes you expect;
- prepare your opening statement which should include what you would like to discuss and what has led to the need for these issues to be addressed;
- consider the likely reaction of the other party and ways to overcome any objections;
- be prepared to approach the process with an open mind rather than with a list of demands.
In complex disputes, it is common for a meeting to be held before the process begins to assist all the parties prepare for the ADR procedure and to establish a timetable for the exchange of documents.
Your role at the ADR process is to state your case clearly. Listen to the other side – if your dispute goes to court, the judge might accept the other party’s version. Look for options that can benefit both parties and follow the ADR practitioner’s directions about what to do next in the process. Be willing to co-operate and be prepared to reach an agreement.
Please see LawRight’s factsheet on Mediation – a short guide for further information.
What is the effect of the outcome of ADR?
If the ADR is unsuccessful, the dispute can then go to trial at court in the usual way. The failure to reach agreement cannot be used by either party against the other during the trial. If the matter goes to trial, the successful party may be able to recover the costs of the ADR process. The matters discussed in ADR processes are normally confidential.
Generally, the outcomes of ADR processes cannot be enforced upon you. In some situations however, the outcomes of ADR processes may be enforceable. An arbitration award for example, may have the same effect as a court order. In other situations, the parties may need to take further steps before the outcome of an ADR process can be enforced. This could include certain family law matters where it may be necessary to give certain forms to a court registry for the agreement to become binding.
Do I have to pay for ADR?
Most ADR practitioners charge an hourly rate which varies depending on their experience as an ADR practitioner, their experience as a solicitor, the area of law governing the dispute and their location. Like any other service you can approach an ADR practitioner to negotiate their hourly rate or a lump sum fee. The costs of disputes that are successfully mediated through ADR are notably cheaper than those which proceed to a court hearing.
The Department of Justice and Attorney-General has Dispute Resolution Centres throughout Queensland which provide mediation services and trained mediators. Mediation services are generally provided for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3239 6007 or 1800 017 288.
Contacts for ADR service providers
ADR practitioners are generally chosen by agreement between the parties.
There is no professional society of mediators, although mediators can be accredited under the National Mediator Accreditation System. For more information, see the Attorney-General’s Department website.
The Department of Justice and Attorney-General provides mediation services for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3738 7000 or 1800 017 288.
The Queensland Law Society have a register of approved mediators which can be searched on their website.
Additionally, the Registrar of the Supreme Court keeps a list of approved mediators and case appraisers which outlines their areas of expertise and their fees. This is provided free of charge on request to the Court registry. Parties can choose a mediator or case appraiser not on the register if they agree.
For more information about ADR in the Supreme and District Courts see the courts website.