When can a doctor override your wishes for your end-of-life? In Queensland, if an Advance Health Directive is completed using the statutory form, a doctor or other care provider must comply with the Advance Health Directive, unless it contravenes what is considered good medical practice or will not be to your benefit. Advances in medical technology may also allow a doctor to override your Advance Health Directive.
The laws in Queensland regarding Advance Health Directives changed in 2020, the year after my husband passed away from “the effects of Huntington’s Disease”. This is my understanding of those new laws. I am not a lawyer.
What’s the difference between an Advance Health Directive, and Enduring Power of Attorney for health matters, and a Health Attorney?
In Queensland:
Advance Health Directive – this lets you give directions about your care, describe your wishes for your care, and appoint another person (your attorney) to make decisions about your health care on your behalf.
Enduring Power of Attorney – this lets you, as the principal appoint someone else (attorney) to act on your behalf and make decisions about you. Your attorney can be appointed for personal matters (including health) and financial matters.
Statutory Health Attorney
By law in Queensland, the “first available and culturally appropriate adult” in this order:
- – spouse or de facto partner while the relationship is close and continuing
- a person who is responsible for the adult’s primary care but isn’t the adult’s health provider, a service provider for a residential service where the adult is a resident, or a paid carer ( although they can be receiving a carer’s pension), or
- a friend or relation in a close personal relationship with the adult. Relation can also include a person who under Aboriginal tradition or Torres Strait Islander custom is regarded as a relation.
A Statutory Health Attorney can consent to most medical procedures on your behalf, in your best interests, including end-of-life, but cannot make decisions for you about:
- Forensic examinations
- Donation of tissue
- Sterilisation
- Termination of pregnancy
- Special medical research or experimental health care
So, if there is no enduring power of attorney or advance health directive in place, and you are incapacitated or not competent, your spouse as your Statutory Health Attorney has limited authority to act on your behalf.
If you’d like more information, start here.
What does the legalese mean in real life?
In real life, if you are healthy and do not have a terminal illness, but can’t speak for yourself, an Enduring Power of Attorney is the best way of ensuring your wishes about health care are honoured. In the absence of an Enduring Power of Attorney, it will fall to a Statutory Health Attorney. In the absence of a Statutory Health Attorney, it will require a QCAT hearing to appoint a guardian, who will have limited authority to act on your behalf.
But when you have a terminal illness, its different. an Advance Health Directive takes precedence. In the absence of an Advance Health Directive, it would fall to your Enduring Power of Attorney for personal matters. In the absence of this Enduring Power of Attorney, it would fall to your Statutory Health Attorney. In the absence of a Statutory Health Attorney, it would fall to a QCAT hearing to appoint a guardian.
Advance Health Directive – what’s in the form?
In real life, if you have a terminal illness, an Advance Health Directive is the way to go, while you are still capable of making decisions. Having an Advance Health Directive means that you can let your wishes be known about what is important to you and your choices when it comes to end-of-life, such as:
- What is important to you, now and in the future.
- Things that worry you. For me, that would be being unable to communicate, but it could be other things as well, like being unable to live at home.
- Any cultural, religious or spiritual values, rituals or beliefs you would like considered in your health care.
- What would be important to you to have when you are near death. This can include who should be with you and who should not be with you.
- Who you want to be involved in discussions about your health care.
- Your wishes about life-sustaining treatment, such as
- CPR
- Assisted ventilation (having a machine breath for you)
- Assisted nutrition (a feeding tube, either through a port in the stomach or through the nose)
- Artificial hydration (a drip)
- Antiobiotics
- Other lifesaving treatment (for example, a machine to breath and pump your blood, kidney dialysis)
If you have co-occurring conditions (otherwise known as comorbidities), you can choose how each condition can be treated. So for example, if you have kidney disease and eosophageal cancer, how do you want each one treated, or not treated.
Once you’ve decided all that, your doctor needs to countersign your Advance Health Directive.
The next thing in Form 4 Advance Health Directive is your attorneys – who can speak for you to enforce your wishes inder this Advance Health Directive if you are unable to do it yourself.
Your Advance Health Directive is not set in stone. You can revoke it it at any time,
Remember, this is in the event that you are not able to speak for yourself. and this doesn’t just mean through speech. It could be through a speech app, or any alternative means of communication, as long as you are deemed competent, i.e. have the capacity to understand the nature and effect of an Advance Health Directive.
It’s fairly confronting to have to complete one of these, and there is a fine line between family and friends talking with you about it, and directing you what to say. This is about the quality of your end of life. It is not about their comfort at your end-of-life.
More information
Advance Care Planning (organisation)
Commonwealth Department of Health and Aged Care
A previous blog post about “The Practice Run“, when things go wrong
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