What legal frameworks apply in Australia at the end of life?
End-of-life law in Australia is governed by both Common Law and Statute Law, with variations across States and Territories. Key legislation on issues like guardianship and medical treatment differs depending on the person’s capacity and age. Advance Care Directives, governed by State and Territory regulations, document a person’s wishes for future care when they can no longer make decisions. The “parens patriae” jurisdiction allows the Supreme Court to protect individuals, such as children or those with impaired capacity, in their best interests.
Decision-making at the end of life may involve a substitute decision-maker, legally recognized by titles that vary by location, such as “Statutory Health Attorney” or “Medical Treatment Decision-Maker.” Where possible, supported decision-making helps individuals participate in their care choices. Decisions can include withholding or withdrawing life-sustaining treatments in specific circumstances, based on the patient’s wishes or best interests.
An Advance Care Directive governed by State and Territory legislation. Statutory Advance Care Directives must be in writing (except in the Australian Capital Territory and Tasmania, where it may also be verbal, or given in some other way); be signed by the person and appropriately witnessed; and meet the requirements of the relevant State or Territory legislation.
Advanced Care planning – A process of planning for future health and personal care whereby the person’s values, beliefs and preferences are made known to guide decision-making at a future time when that person cannot make or communicate their decisions.
Parens Patriae -The Supreme Court’s ‘welfare’ or ‘protective’ jurisdiction. A Supreme Court may use it’s parens patriae jurisdiction to protect the interests of a person unable to manage their own affairs, such as a child or a person with impaired decision-making capacity.
Gillick- competent –A term used to define a child (person under 18) who has capacity to make decisions about their own health care and medical treatment, without the need for parental decision-making. A child is Gillick-competent if they achieve ‘sufficient understanding and intelligence to enable them to understand fully what is proposed’ i.e. the treatment or health care.
Withholding life-sustaining treatment
Not starting or not providing treatment that has the potential to continue a person’s life. For example, not attempting cardiopulmonary resuscitation when a person’s heart stops beating.
Withdrawing life-sustaining treatment
Stopping treatment that has the potential to continue a person’s life. For example, stopping artificial nutrition and hydration for a person in a post-coma unresponsive state (sometimes referred to as a persistent vegetative state).
Substitute Decision maker – A person who is lawfully able to make health care or medical treatment decisions on behalf of a person with impaired decision-making capacity. In some cases a person may have more than one substitute decision-maker e.g. if a person appointed joint substitute decision-makers.
Different terminology is used for decision-makers in each State and Territory. For example, a default substitute decision-maker is called a:
- Statutory Health Attorney in Queensland.
- Medical treatment decision-maker in Victoria.
- Person responsible in New South Wales, South Australia, Tasmania, and Western Australia.
- A health care decision maker in the Northern Territory.
Substitute & Supported Decision-making–
The process of a substitute decision-maker/s making decisions about matters such as health care and medical treatment for a person with impaired decision-making capacity.
The process of supporting another person, such as an adult with a cognitive impairment, to make their own decisions, and to participate in decision-making. This differs from substitute decision-making, where a decision is made for the person by a substitute decision-maker.
Examples of supported decision-making include:
- Providing information to the person in a way they understand e.g. by adjusting language or using visual aids or technology, so that they can participate in decision-making;
- Communicating decisions made by the person to health professionals; or
- Helping a person in the decision-making process e.g. by talking through options with them.