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.
Australian Emergency Law 
Thanks Michael,
Part of my confusion comes from this link.
https://end-of-life.qut.edu.au/advance-care-directives/state-and-territory-laws/queensland#547667
Where is says:
Does Queensland have both common law Advance Care Directives and statutory Advance Directives (Advance Health Directives)?
No. Queensland only has statutory Advance Care Directives i.e. an Advance Health Directive. Common law Advance Care Directives were intended to have legal effect in Queensland, however the wording and structure of the Queensland guardianship legislation has removed their legal effect.
Is this a difference in opinion or is that talking about something else?
That’s an interesting question. My first comment is that appears to be talking about something else as in my post we were referring to the Powers of Attorney Act, not the Guardianship and Administration Act 2000 (Qld). As noted in my post, the Powers of Attorney Act specifically retains the common law. However the Guardianship and Administration Act 2000 (Qld) s 8 says that the Act is to be read with the Powers of Attorney Act but if there is any inconsistency, then the Guardianship … Act is to prevail.
The Guardianship … Act provides for ‘Health and Special Health Matters’ (Chapter 5). Section 63 is about providing urgent health care without consent. That section says:
(1) Health care, other than special health care, of an adult may be carried out without consent if the adult’s health provider reasonably considers—
(a) the adult has impaired capacity for the health matter concerned; and
(b) either—
(i) the health care should be carried out urgently to meet imminent risk to the adult’s life or health; or
(ii) the health care should be carried out urgently to prevent significant pain or distress to the adult and it is not reasonably practicable to get consent from a person who may give it under this Act or the Powers of Attorney Act 1998 .
(2) However, the health care mentioned in subsection (1)(b)(i) may not be carried out without consent if the health provider knows the adult objects to the health care in an advance health directive.
(3) However, the health care mentioned in subsection (1)(b)(ii) may not be carried out without consent if the health provider knows the adult objects to the health care unless—
(a) the adult has minimal or no understanding of 1 or both of the following—
(i) what the health care involves;
(ii) why the health care is required; and
(b) the health care is likely to cause the adult—
(i) no distress; or
(ii) temporary distress that is outweighed by the benefit to the adult of the health care.
Health care in this context ‘does not include withholding or withdrawal of a life-sustaining measure for the adult’ (s 63(5)).
That section is clearly a mess.
Section 63(3) refers to treatment that ‘should be carried out urgently to prevent significant pain or distress to the adult’ but it does not say that objection must be in an Advanced Care Directive. An adult objects to treatment if (Sch 4, definition of ‘object’):
(a) the adult indicates the adult does not wish to have the health care; or
(b) the adult previously indicated, in similar circumstances, the adult did not then wish to have the health care and since then the adult
has not indicated otherwise.
There is nothing to say that this objection can only be in an Advanced Care Directive under the Powers of Attorney Act.
The Guardianship … Act says that health care intended ‘to meet imminent risk to the adult’s life or health’ cannot be carried out if the patient objects but in this context, health care ‘does not include withholding … a life sustaining measure’. It would appear that if the patient has, in an advance care directive, indicated that they object to a ‘life sustaining measure’ that refusal may not be binding because it is dealing with a ‘life sustaining measure’ and s 63 is (by virtue of 63(5)) not talking about the ‘withholding or withdrawal of a life sustaining measure’.
The law on withholding or withdrawing life sustaining measures is in s 63A. That section says that a life sustaining measure can be withheld if in the health provider’s opinion ‘the commencement or continuation of the measure for the adult would be inconsistent with good medical practice’. That is, it is for the health providers, not the patient to decide these issues – medical paternalism enshrined in legislation! Save that good medical practice requires that the patient’s autonomy is respected. If a health provider knows that the patient has objected to the treatment, eg a member of the Jehovah’s witness has consistently indicated that they do not want a blood transfusion under any circumstances, then it could not be ‘good medical practice’ to treat them against their wishes (see Medical Board, Code of Conduct: Good Medical Practice [4.5]).
Further the Human Rights Act 2019 (Qld) s 17 says ‘A person must not be— … (c) subjected to medical … treatment without the person’s full, free and informed consent’. Of course that can be overridden where for example a person needs urgent care and cannot consent (and see s 16 and the Right to Life) but where a person has made it clear in a situation where there is no reason to doubt their capacity and sincerity that they do not want treatment, then to impose that treatment – even if it is life sustaining – would be a breach of this human right.
Section 63A(2) says that a life sustaining measure ‘may not be withheld or withdrawn without consent if the health provider knows the adult objects to the withholding or withdrawal’. In a post Patient’s demands do not create a duty to treat (April 11, 2020) I argued that just because a patient wants treatment that does not impose an obligation on practitioners to provide it, but that may not be the case in Queensland save that So, if a patient insists on treatment then that must be provided save that if the treatment is really futile, ie it’s not going to work, it won’t be life sustaining, so whether the patient can insist on it or not is hard to know.
We therefore have these dilemmas:
The Powers of Attorney Act says a person can complete an advanced care directive which could include an objection to a ‘life sustaining treatment’; but
If it comes to a crisis, a health provider is expected to honour that advanced care directive save that if it refuses ‘life sustaining treatment’ then it is outside the scope of s 63 and is not binding.
The health provider may withhold life-sustaining treatment if, in their opinion, it would be inconsistent with good health care to administer the treatment. It will be inconsistent with good health care if the patient objects to the treatment and that will be true whether they have expressed that view in an advanced care directive or a card in their wallet or by communicating that to the health provider in person or by some other means. So the health provider could withhold the treatment even if it has not been refused in an advanced care directive, but because good medical practice, including working with patients and acting on their informed choices, says it should be.
As for the common law the Powers of Attorney Act says that it continues to exist; the Guardianship … Act is silent on the subject. There is therefore no reason to think that a refusal, communicated in accordance with the common law, is not sufficient to inform a health care practitioner and to allow them to come to the conclusion that the delivery of care that is not wanted is not consistent with good ‘medical’ practice. Consent is a bedrock of good medical practice. And respecting a patient’s wishes when they are at the end of their life is when it is most important. Respect for autonomy is trivial if we only respect a person’s right to make trivial decisions but is most important when we make the most important decisions such as whether to live or die.
What follows is that, in my view the claim ‘Queensland only has statutory Advance Care Directives i.e. an Advance Health Directive. Common law Advance Care Directives were intended to have legal effect in Queensland, however the wording and structure of the Queensland guardianship legislation has removed their legal effect’ is overstating the case.
I agree that ‘Common law Advance Care Directives were intended to have legal effect in Queensland’ that seems evident by the Powers of Attorney Act 1998 (Qld) s 39.
I do not agree that ‘the wording and structure of the Queensland guardianship legislation has removed their legal effect’ partly because the Act is so badly worded and structured that is unclear what the parliament or the drafter was trying to achieve. In those circumstances, when a court comes to interpret it (if it is ever asked to do so) then it will normally do so in a way to best preserve traditional rights – these are only overruled if that is the only possible interpretation (and see also Human Rights Act 2019 (Qld) s 48).
Section 63A says that a health provider can withhold life sustaining measures where that is consistent with good ‘medical’ practice. Respect for patient autonomy is the foundation of good medical practice so that it will be consistent with good medical practice to withhold treatment that a patient has refused and where it is known that the patient has refused the treatment, regardless of how that has been communicated.
For the original correspondent, some additional thoughts:
The Queensland “Acute Resuscitation Plan” is not a legally binding document, and is not well designed or utilised for decisions other than the “provide CPR or not.”
Most importantly the Advanced Health Directive appoints a health attorney as a decision maker, which applies if the patient does not have capacity.
Queensland’s end of life law is more complicated than other states and there is a useful reference at https://end-of-life.qut.edu.au/advance-care-directives.
It is also worth noting that the provision “an illness of such severity that there is no reasonable prospect of recovery,” is often considered to include cardiac arrest.
And additionally, particularly in relation to QAS, the CPG allows for QAS Consult Line clinicians to make a clinical decision to to withdraw or withhold resuscitation, and the existence of an AHD provides strong supporting information for that decision.
Thanks again Michael!
Hi Sean,
I agree the ARP should be used for only decisions to provide cpr/defib/ventilation.
In my research surrounding the subject I agree it is not considered a legal document or a consent form. Which leads to the question “what is a legal document” and can I follow documents that are not “legal documents”. And best I can tell a legal document is one mentioned in legislation. It is my understanding that the QAS CPG as it is not mentioned in legislation (as far as I know) would not be considered a legal document and I rely on that daily.
An ARP does however seem to be what is considered a “medical order” a collaboration often between the patient, the patients family and their treating team of what to do in case of the requirement of resuscitation. In my mind – a directive from the QAS clinical consult line is also considered a medical order – and not a legally binding document either. It lets me know those procedures are not indicated whether it doesn’t align with the patients wishes, or whether it would be futile.
Per the Acute Resuscitation Plan Queensland Health Clinical Guidelines page 27 accessed here:
https://www.health.qld.gov.au/__data/assets/pdf_file/0023/1433732/arp-clinical-guidelines.pdf
… Queensland Ambulance Services (QAS) responsibilities
An active ARP form, that is applicable to the patient’s current situation and appropriately completed, provides clinical authority for all QAS paramedics to act on the instructions.
Information on the ARP form may assist QAS paramedics to determine if a lawful direction to withhold or withdraw life-sustaining measures is appropriate.
Where the ARP is lapsed, uncertain, voided or active only for the current admission/attendance, QAS paramedics must exercise clinical judgement about following the directions on the ARP form, and refer to clinical practice guidance material. Actions must be thoroughly documented. Refer to:
Queensland Ambulance Service: Clinical Practice Guidelines: Resuscitation/ Resuscitation – General guidelines
Queensland Ambulance Service: Clinical Practice Guidelines: Resuscitation/ Resuscitation – Adult
On the QAS website https://www.ambulance.qld.gov.au/clinical/patient-management-plans
It says “Our paramedics will follow the ARP if we know about it when we treat them.”
If the QAS intended for their ACP2 paramedics to default resuscitate, get the arrest to a position where they have a free hand to make a phone call, then ask permission to action a document that they were potentially aware of on the way to the job. It seems clunky – the patient receives procedures they didn’t want / weren’t indicated even if for a short time.
All that seems beside the point if as Michael has mentioned on numerous occasions ignoring a known objection to resuscitation procedures whether it be an AHD, an ARP, a statement of choice, a tattoo or a message on a napkin cannot be justified so long as I have no reason to question the capacity at the time.
The term ‘legal document’ makes no-sense – see https://australianemergencylaw.com/2017/02/23/what-is-a-legal-document/ (and be sure to read the comment from Tim Williams as well as my own post).
Thanks for bringing this to my attention. Again my confusion was perpetuated by table 1 in the clinical guideline https://www.ambulance.qld.gov.au/__data/assets/pdf_file/0029/475940/CPG_Resuscitation_General-guidelines-Adult.pdf
And the in house training around it, where a firm distinction was drawn between “legal documents” and “non legal documents” the teaching at the time was paramedics could only follow “legal documents”. This understanding is still held my many of my colleagues.
Overall I still find this guideline confusing.