Enduring documents and advance health directives in Queensland 

This article states the law of Queensland. The Powers of Attorney Act 1998 (Qld) houses both the enduring power of attorney and the advance health directive, and the relationship between the two is the point most likely to be missed: where both exist, the directive wins¹. The prior question is whether the principal has impaired capacity for the particular matter, because neither instrument operates until that is so.

When a direction operates

Section 36(1) sets two propositions together. A direction in an advance health directive operates only while the principal has impaired capacity for the matter covered by the direction; and while it operates it is as effective as if the principal had given the direction when decisions about the matter needed to be made, and had then had capacity for the matter.

The second limb is what gives the instrument its force. The direction is not treated as a stale historical wish to be weighed; it is read as a contemporaneous decision by a capable person.

Section 35(4) confirms that an advance health directive is not revoked by the principal becoming a person with impaired capacity — which is the event that brings it into operation. Section 35(5) allows an adult principal outside Queensland to make one.

Priority over an attorney

Section 35(3) states the rule in one sentence: "A direction in an advance health directive has priority over a general or specific power for health matters given to any attorney."

So a principal who has both an enduring power of attorney covering health and an advance health directive has not created a conflict to be resolved case by case. The directive governs to the extent it gives a direction, and the attorney's power operates where it does not.

Section 36(3) confines the attorney's power for a health matter under a directive to periods when the principal has impaired capacity for the matter "and not otherwise". Where power is exercisable, s 36(4) gives the attorney power to do anything in relation to the matter that the principal could lawfully do with capacity, subject to the terms of the directive and the Act (s 36(5)). Section 36(6) allows a person dealing with the attorney to ask for evidence — a medical certificate, for example — establishing impaired capacity.

The Act also signals that priority as between an attorney and other decision-makers for a health matter is settled elsewhere: s 36(3) directs the reader to s 66 of the Guardianship and Administration Act 2000 (Qld).

Withholding or withdrawing a life-sustaining measure

Section 36(2) is the provision that most repays careful reading, and it is cumulative. A direction to withhold or withdraw a life-sustaining measure cannot operate unless all of the following are satisfied.

First, one of four clinical situations must apply: the principal has a terminal illness or condition that is incurable or irreversible and, in the opinion of a treating doctor and another doctor, may reasonably be expected to result in death within one year; or the principal is in a persistent vegetative state, involving severe and irreversible brain damage while some or all vital bodily functions continue; or the principal is permanently unconscious, with brain damage so severe there is no reasonable prospect of regaining consciousness; or the principal has an illness or injury so severe that there is no reasonable prospect of recovering to the extent that life can be sustained without continued life-sustaining measures.

Second, where the direction concerns artificial nutrition or artificial hydration, commencement or continuation of the measure must be inconsistent with good medical practice.

Third, the principal must have no reasonable prospect of regaining capacity for health matters.

Three features are worth naming. The first limb requires two doctors for the terminal illness route, so a single treating opinion is insufficient. Artificial nutrition and hydration carry an additional good-medical-practice requirement the other measures do not. And the third requirement is independent of the first: a clinical situation that satisfies limb one does not by itself establish that capacity will not return.

What the Act does not authorise

Section 37 is a declaratory limit. Nothing in the Act authorises, justifies or excuses killing a person, or affects s 284 of the Criminal Code (Qld) — under which consent to the causing of one's own death does not affect criminal responsibility — or chapter 28, which includes acceleration of death and aiding suicide.

A Queensland answer about withdrawing treatment must therefore keep the statutory pathway and the criminal law distinct. Section 36(2) states when a direction operates; s 37 confirms that operation is not a licence beyond it.

How this compares

Four jurisdictions now handle advance directives four ways:

• Queensland gives a directive priority over an attorney's health power, and imposes cumulative clinical preconditions before a life-sustaining direction can operate.
• Victoria distinguishes binding instructional directives from guiding values directives, and gives effect to a consent as well as a refusal.
• South Australia makes only refusals of health care binding; positive directions do not bind.
• New South Wales has no equivalent directive statute in the material examined, using instead a statutory person responsible hierarchy.

Queensland is the only one of the four to condition the operation of a directive on the patient's clinical state in this way. An answer that treats a Queensland directive as self-executing on its terms has missed s 36(2).

Applying this in a problem question

1. Establish impaired capacity for the particular matter before either instrument operates.
2. Where both a directive and an attorney's health power exist, apply s 35(3) — the directive has priority so far as it directs.
3. For a life-sustaining measure, work all three requirements of s 36(2) separately, and do not collapse them.
4. On the terminal illness route, check that two doctors hold the opinion.
5. For artificial nutrition or hydration, address the additional good medical practice requirement.
6. Keep s 37 and the Criminal Code provisions distinct from the question whether the direction operates.

Self-check

• Have I confined the directive's operation to impaired capacity for the matter?
• Have I applied s 35(3) priority rather than balancing directive against attorney?
• Have I treated the s 36(2) requirements as cumulative?
• Have I checked the two-doctor requirement on the terminal illness limb?