Statutory Advance Health Directive
The Powers of Attorney Act 1998 (Qld) provides for a statutory Advance Health Directive (‘Directive’). Under the Act, a Directive is a type of ‘enduring document’ that contains directions for a person’s future health care. The Act provides examples (without limiting the scope) of what a Directive can be used to do. These include:
- Consenting to particular future health care in specified circumstances when required and despite objection by the person when the health care is provided.
- Refusing consent to, and requiring, in specified circumstances, that a life-sustaining measure be withheld or withdrawn.
A Directive in Queensland can also be used to appoint a ‘health attorney’ for substitute decision-making in the event of incapacity. Find out more about health attorneys and consent to medical treatment.
Requirements of a Valid Directive
In order for a Direction to be valid:
- it must be made and signed by a person 18 years or over who has been certified as having capacity;
- it must be in the form prescribed by regulation; and
- it must be witnessed an eligible witness.
The Directive comes into operation when the person (‘the principal’) has impaired capacity for the particular matter specified. It then operates as if the principal has capacity and is giving a direction at the time the decision needs to be made.
However, a direction to withhold or withdraw a life-sustaining measure can only operate under certain conditions. For instance, if the principal has an incurable terminal illness where death is reasonably likely within one year, they must have no reasonable prospect of regaining capacity, and the direction must be consistent with good medical practice.
An advance health directive must be given priority over a general or specific power for health matters given to a health attorney.
Common Law Advance Health Directive
The Powers of Attorney Act 1998 (Qld) states that the Act does not affect the common law recognition of health care instructions. While this appears to preserve the common law, there is the view that the common law with respect to advance health directives no longer applies due to the drafting of the Guardianship and Administration Act 2000 (Qld), which states: ‘If an adult has impaired capacity for a health matter, the matter may only be dealt with under the first of the following subsections to apply’. The relevant subsections do not include common law advance directives.
As such, it is generally understood that the common law in relation to advance directives does not apply in Queensland.
Further Information including relevant forms: