Today I’m asked to comment on the Advance Health Directive (Queensland) and its application to paramedic practice. My correspondent says:

I am wondering what utility the QLD Advance Health Directive has in paramedic practice, specifically section 4 Directions About Life-Sustaining Treatment. 

Form 4 – Advance health directive (Queensland)

Given there is a section 

Will my health provider always need to follow my directions?
Your directions about life-sustaining treatment will only apply if you are unlikely to regain capacity to make your own decisions about health care and one of the following applies:
» you are so unwell due to a terminal illness or condition that, in the opinion of two doctors, you are reasonably likely to die in the next 12 months
» you are so unwell due to an injury or illness that there is no reasonable prospect that you will recover to the extent that you can live without life-sustaining treatment
»you are permanently unconscious (with no reasonable prospect of regaining consciousness)
» you are in a persistent vegetative state (involving severe and irreversible brain damage).
A health provider does not have to follow directions in an advance health directive that are not consistent with good medical practice or that will not benefit you. A health provider also does not have to follow directions that are uncertain or where circumstances, including advances in medicine, have changed to the point that your directions are no longer appropriate.

Other than possibly patients expected to die within 12 months (although I’ve never come across paperwork demonstrating an opinion of two doctors) I feel the others do not apply. 

It feels to me the AHD is aimed for in-hospital use by treating teams that have prognostic abilities, expert opinion and decisions can be made in a controlled way with a wealth of information.  

It is my opinion that the ARP [Advanced Resuscitation Plan] and statement of choice are much more useful document for prehospital decisions.

Let me say, before I even begin to look at the law, that these documents are nearly always intended for application in a medical context where there is a medical team and time for consultation and agreement. 

Let us turn to the law. The form 4 says that it is made pursuant to the Powers of Attorney Act 1998 (Qld) s 44(2).  That section merely says that the document must be in the approved form.  Section 36 talks about the operation of the advance directive. That section says

(1) A direction in an advance health directive—

(a) operates only while the principal has impaired capacity for the matter covered by the direction; and

(b) is as effective as if—

(i) the principal gave the direction when decisions about the matter needed to be made; and

(ii) the principal then had capacity for the matter.

(2) A direction to withhold or withdraw a life-sustaining measure can not operate unless—

(a) 1 of the following applies—

(i) the principal has a terminal illness or condition that is incurable or irreversible and as a result of which, in the opinion of a doctor treating the principal and another doctor, the principal may reasonably be expected to die within 1 year;

(ii) the principal is in a persistent vegetative state, that is, the principal has a condition involving severe and irreversible brain damage which, however, allows some or all of the principal’s vital bodily functions to continue, including, for example, heart beat or breathing;

(iii) the principal is permanently unconscious, that is, the principal has a condition involving brain damage so severe that there is no reasonable prospect of the principal regaining consciousness;

(iv) the principal has an illness or injury of such severity that there is no reasonable prospect that the principal will recover to the extent that the principal’s life can be sustained without the continued application of life-sustaining measures; and

(b) for a direction to withhold or withdraw artificial nutrition or artificial hydration—the commencement or continuation of the measure would be inconsistent with good medical practice; and

(c) the principal has no reasonable prospect of regaining capacity for health matters.

The problem with that section, at face value, is that it denies the overriding obligation to treat a patient in accordance with their wishes. If a patient wants to refuse treatment of any sort why does it matter whether they are suffering a terminal or incurable illness?  A person may want to refuse any form of life sustaining measure including CPR because, for example, they have a chronic disabling condition but it, all else being equal, they are not expected to die within 12 months.  If a patient does not want CPR, or a blood transfusion, or any other treatment under any circumstances or under the circumstances that have arisen, then that should be respected regardless of their prognosis or the opinion of treating health professionals such treatment would be in their best interests. It is up to the patient to determine what is in their best interests, not the health care team.  

Section 39, however, says ‘This Act does not affect common law recognition of instructions about health care given by an adult that are not given in an advance health directive’. 

The common law recognises the right of a person to refuse treatment for any reason, or for no reason (Sidaway v Bethlem Royal Hospital [1985] AC 871; see also PBU & NJE v Mental Health Tribunal [2018] VSC 564, Malette v Shulman (1990) 67 DLR (4th) 321). There wishes are effective if they are communicated in any way that works (see again Malette v Shulman). ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (Collins v Wilcock [1984] 3 All ER 374, p. 378).  Except in cases of necessity ‘… all medical treatment is preceded by the patient’s choice to undergo it (Rogers v Whitaker [1992] HCA 58). Necessity can apply where it is not possible to communicate with the patient in which case treatment that is required in the patient’s best interests can be given but not where that treatment is ‘contrary to the known wishes of the assisted person’ (In Re F [1990] 2 AC 1).

What follows is that the Advance Health Directive made under the Powers of Attorney Act applies in the circumstances where it applies, but it does not mean that other expressions of the patient’s wishes or decisions that are intended to be binding can be ignored.

Conclusion

For paramedics called to an unexpected emergency then the Advance Health Directive is not likely to assist, but other expressions of the patient’s wishes should be considered when determining whether ongoing treatment is in the patient’s best interests or ‘contrary to their known wishes’. 

For a similar post see Respecting the patient’s choices – Queensland (October 1, 2024).

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.