ADVANCE CARE PLANNING LEGISLATION – AUSTRALIA*
State/
Territory
Advance
Directive/
Refusal of
Treatment
Yes
Proxy/
Agent:
Patient
Appointed
Yes
Queensland
Yes
Yes
South
Australia
Yes
Yes
New South
Wales
Comments
Persons can appoint an Enduring Guardian or substitute decisionmaker (Guardianship Act of 1987 amended in 1997) and are able to
record their treatment choices in an Advance Care Directive. An
Advance Care Directive that complies with the requirements set out
in the guidelines published by the Department of Health (NSW) is
legally binding in NSW, and functions as an extension of the
common law right to determine one’s own medical treatment
(http://www.health.nsw.gov.au/policies/).
Where no Enduring Guardian was appointed a Person Responsible is
asked to make decisions on their behalf. The Person Responsible can
be, in hierarchical order: (1) a guardian who has the function of
giving consent to medical decisions; (2) a spouse or de facto spouse
with a close and continuing relationship; (3) an unpaid carer (not
counting a carer’s pension), or the patient’s carer before they were
taken into residential care/supported accommodation; or (4) a close
friend or relative)
Powers of Attorney Act 1998 (Qld) passed by Parliament May 1998
and the Guardianship and Administration Act passed in May 2000
allow persons to draft Advance Health Directives and sign an
Enduring Power of Attorney for personal/health matters to assign an
Attorney (substitute decision maker).
Where not enduring power or attorney was signed regarding health
matters, a Statutory Health Attorney is automatically assigned to
make such decisions. The Statutory Health Attorney, in order of
priority, can be a spouse, primary unpaid carer, family member or
close friend, or the Adult Guardian (as a last resort).
An Adult Guardian or guardian of last resort can be appointed by the
Guardianship and Administration Tribunal. This guardian can
consent to withhold/withdraw life-sustaining treatment.
In South Australia the Consent to Medical Treatment and Palliative
Care Act as well as the Guardianship and Administration Act allow
for the following legal instruments, together referred to as advance
directives: Medical Powers of Attorney, Anticipatory Directions and
Enduring Powers of Guardianship.
Persons can state their refusal of or consent to treatment in
anticipation of a terminal illness or a permanent vegetative state
verbally or document it in their Medical Power of Attorney or
Anticipatory Direction.
Individuals may specify a person who they would wish to make
health decisions for them if they become unable to make those
decisions personally or communicate them by signing a Medical
Power of Attorney. That person is known as a MPA or Medical Agent.
The Medical Agent can make decisions about medical treatment,
including withdrawing or withholding life-sustaining measures, but
not refusal of the natural provision/administration of food and water,
or pain -relieving drugs. More than one Medical Agent can be
nominated.
Also, the Guardianship and Administration Act allows for the
appointment an Enduring Guardian to make important health and
lifestyle decisions in case the patient is legally considered unable to
do so. An Enduring Guardian can potentially make a wider range of
decisions than a Medical Agent.
Some residents in aged care facilities are not competent and have not
previously organised an advance directive. To assist staff in nursing
1
Tasmania
No
Yes
Victoria
Yes
Yes
Western
Australia
No
Yes
homes to know if a resident should be actively or passively treated,
the Department of Health has endorsed the use of Good Palliative
Care Plans for people in the terminal stage of terminal illness.
Although not a legal document, it is a record of a discussion between
the patient, family and the doctor about palliative care or active
treatment. The Good Palliative Care Plan is written by a doctor in
consultation with legally appointed agents and/or family members.
Where no Medical Agent or Enduring Guardian has been appointed,
a relative may consent to certain medical treatment.
Moreover, the Guardianship Board may appoint a Guardian to make
lifestyle and medical treatment decisions for a person with a mental
incapacity. The Guardian could be a family member or close friend.
If there is nobody suitable to become guardian, the Office of the
Public Advocate may be appointed as guardian of last resort.
The Guardianship and Administration Act of 1995 allows persons of
or over the age of 18 to appoint an Enduring Guardian. The
appointee must act in accordance with the treatment choices of a
person where recorded, the principles laid down in the act, as well as
in a number of important respects is subject to direction by the Board.
Where no Enduring Guardian has been appointed, a Person
Responsible may be called upon to consent to medical decisions. A
Person Responsible can be
- a Guardian (including Enduring Guardian), who has the power to
make decisions about heath care; or if there is no guardian
- his or her spouse (this includes de facto spouses and same sex
spouses); or if there is no spouse
- an unpaid carer who is now providing support to the person or
provided this support before the person entered residential care; or if
there is no carer
- a close relative or friend of the person, who has a close personal
relationship with the other person through frequent personal contact
and who has a personal interest in the other person’s welfare.
In case the above means of decision-making fail, the Guardianship
and Administration board has the power to appoint a Guardian as a
‘last resort’ option.
Medical Treatment Act 1988 (Vic) allows a patient to write a Refusal
of Treatment Certificate, but only for a current illness which does not
have to be terminal (ie not anticipatory). The Medical Treatment
(Enduring Power of Attorney) Act 1988 (Vic) allows the appointment
of an Agent (proxy) as well as an Alternate Agent. Where no Agent
has been appointed a Person Responsible will be determined to make
decisions on behalf of the incompetent patient.
A Guardian can be appointed by the Guardianship List of the
Victorian Civil and Administrative Tribunal (the Tribunal) as a
measure of ‘last resort’.
No current legislation exists regarding advance care planning. A
Private Members Bill for the refusal of treatment by terminally ill
people (Medical Care of the Dying Bill 1995 (WA)) was passed by
the Lower House November 1995 but lapsed when an election was
called.
More recently, a discussion paper issued by the Attorney General in
2005 stated that the common law would be highly likely to support
the view that a competent person has the right to “give binding
consents and refusals regarding the manner of his or her own future
health care”. The paper’s view was that a validly executed advance
directive would be legally binding.
There is legislative provision with respect to substitute decision
makers in WA. The Guardianship and Administration Act (1990)
provides for appointment of a Guardian for those who are incapable.
Guardians are authorised to make decisions of a personal nature
2
Australian
Capital
Territory
Yes
Yes
Northern
Territory
Yes
No
including consent for medical treatment including the withdrawal of
treatment. In addition, in the context of the Act, a guardian can effect
the non-provision of certain treatment that may be available including
non-natural hydration and nutrition. The latter point was made by the
Guardianship and Administration Board in Re BTO (Application GU
0192/2004).
In the event that an individual is not capable, needs medical treatment
and does not have a guardian, section 119 of the Act allows for
consent to be given by a Person Responsible.
Under the Powers of Attorney Act 1956, the Guardianship and
Management of Property Act 1991, and the Medical Treatment Act
1994 persons can state their wishes regarding medical treatment
(advance directives) and appoint a substitute decision maker to refuse
medical treatment when the appointer is no longer competent.
If possible, the previously stated wishes of a person, prior to them
becoming incompetent, are to be considered when substitute decision
makers are making medical treatment decisions on behalf of an
individual. The previously stated wishes, whether they are in writing
or verbal, provide evidence to assist in medical treatment decisionmaking. And although the written wishes may not appear in a signed
legal document, under statute law they have evidentiary weight under
common law and are considered in the Powers of Attorney Act 1956
and the Guardianship and Management of Property Act 1991.
The Powers of Attorney Act (1956) allows a person (Donor) to
appoint a Donee (substitute decision maker) by completing an
Enduring Power of Attorney. This allows the Donee to give consent
when the person becomes incapacitated to medical treatment which is
necessary for their well being, the donation of a body part, blood or
tissue and the withholding or withdrawal of medical treatment.
The Guardianship and Management of Property Act 1991 establishes
a Tribunal which has powers to appoint a Guardian as a measure of
‘last resort’ where the health of an incompetent person is endangered.
Natural Death Act 1988 (NT) allows a person 18 years or over to
write an Advance Directive at any time, but it applies only to a
terminal illness. It may be that the legislation could allow for an
application of the Enduring Power of Attorney to medical decisionmaking. However, for medical decisions the Enduring Power of
Attorney has currently no recognition under statute law in the NT. It
is important to keep in mind that the appointment of such a person
could potentially be challenged in a court of law if other parties felt
uncomfortable with the process or decisions being made.
Because a guardian appointed under the Adult Guardianship Act has
limited decision-making power, decisions regarding the cessation of
medical treatments in an end-of-life situation should be referred to
the Magistrate’s Court.
* As per 4 December 2006.
All States and Territories have guardianship legislation.
This table is based on a schedule introduced by Margaret Brown [1].
1.
Brown, M., The law and practice associated with advance directives in Canada and
Australia: similarities, differences and debates. [Review] [73 refs]. Journal of Law &
Medicine., 2003. 11(1): p. 59-76.
3
4