Legal implications

What are the important principles of advance care planning?

Advance care planning respects the right of an individual to decide how decisions are made about their care.

There is no single way that people choose to approach how decisions should be made if they become unable to make their own healthcare decisions.

Each person has their own preferences on decision-making and these preferences should not be assumed. There will be variation between and within cultures. 

These preferences influence how a person makes a decision and their motivations in choosing to do advance care planning. For example, a person who prefers individual autonomy may complete advance care planning to maintain control over their own body at times in the future where they do not have capacity for decisions. A person who prefers a relationship approach may complete advance care planning to reduce the burden on their family.

Yes, advance care planning is supported by both statute law (determined by legislation) and common law (determined by judges’ decisions from case law) in Australia.

The legislative framework varies in each state/territory. It is important to understand and be familiar with the legal responsibilities and implications in your jurisdiction(s).

Substitute Decision-makers:

A substitute decision-maker(s) is the person called upon to make medical treatment and care decisions on behalf of a person whose decision-making capacity is impaired. 

A substitute decision maker can be: 

1. Someone chosen (and appointed) by the person

The legal appointment of a substitute decision-maker of an individual’s choice is supported by statute law in all Australian jurisdictions.

The legislation which a substitute decision maker is appointed varies between the Australian states and territories. The powers legally appointed decision-maker are varied. Some are able to consent and refuse medical treatment on behalf of the appointor; and some also have powers relating to the appointor’s lifestyle and personal matters. In many circumstances the appointor can provide directions for how they wish the appointee to exercise the powers, and can appoint more than one person.

2. Someone assigned to the person by law (identified by a legislated hierarchy)

If medical decisions need to be made and a person has not legally appointed a substitute decision maker of their choosing, each State/Territory (except NT) has a legislated hierarchy which defines who will be called upon to make decisions regarding consent to medical treatment. The first available and willing person on this list will be asked to make medical decisions on the relevant person’s behalf. The order of the hierarchy varies between jurisdictions.

3. Someone appointed on the person’s behalf by a guardianship tribunal

Advance Care Directives

All states and territories in Australia, except NSW and Tasmania have statutory Advance Care Directives. The names of these documents vary between the jurisdictions. The scope of what can be included in statutory documents expressing health care wishes varies. All documents can include refusal of treatment(s). When treatment is refused in writing, this can be for either all treatments or a particular treatment, and either under specific conditions or under all conditions.

General common law principles applicable to advance care planning include:

  • Every competent adult person has the right to refuse medical treatment, now and in the future
  • Adults are assumed to have the decision-making capacity to consent, or refuse consent, to medical treatment

Advance care planning in Australia has also relied on the common-law respect for autonomy, advance care directives, and substitute decision-making. However, the legal standing of common-law advance care directives has only been tested in New South Wales. In 2009, the New South Wales Supreme Court ruled that common-law directives are valid ways for people to indicate their objection to particular treatment(s).

In all other jurisdictions, there is currently no common law ruling in relation to non-statutory ACDs. However, it is important to note that in all jurisdictions, common law documents provide evidence of the person’s views and wishes. Having this information known to the substitute decision-makers guides them in their decisions. This is referred to as ‘having evidentiary weight under common law’ and relates to the fact that if a doctor provides treatment to a patient that is contrary to their written preferences, this can be used as evidence in any court action.

The Australian population is mobile. Thus is important and relevant to consider the validity of a person’s advance care directive that has been developed in one state or territory, but is required to be activated in another jurisdiction as the person has become unwell and has lost decision-making capacity. How jurisdictions manage these issues vary.

An advance care directive will be strengthened if it demonstrates that:

  1. It is consistent with the person’s preferences
  2. The person has expressed these previously
  3. The person appoints a substitute decision-maker who has a clear understanding of their preferences and is willing to be a strong advocate for them

Although there is no requirement for an advance care plan to be documented, signed and witnessed, the lack of a written document will likely give rise to genuine and reasonable doubts about validity and current applicability. 

The following can strengthen an advance care plan’s validity:

  • It is a written document
  • There is evidence that, when signed, the person was competent and not unduly influenced. Witnessing may provide further support, as may the witness’s qualifications (e.g. doctor). Witnessing requirements are specified for statutory documents.
  • A more recent advance care plan may be regarded as more valid because it provides more certainty about its currency
  • It relates to a current condition. An advance care plan that clearly contemplates the current clinical circumstances will reduce doubt about its applicability
  • It is appropriately worded: an advance care plan will be stronger if it avoids vague or imprecise language

Formal advance care planning is only legally possible when a person is competent or has decision- making capacity. Without this, they are unable to make informed decisions.

Unless there is evidence to the contrary, individuals are assumed to be competent. The terms competence and decision-making capacity are used interchangeably. However, they are not the same.

Competence is presumed unless a court has determined that an individual is incompetent.

A judicial declaration of incompetence may be global or limited to certain areas such as financial matters, personal care or medical decisions.

Decision-making capacity is task specific. Components of decision-making capacity include the:

  • ability to understand information
  • appreciation of the relevance of that information to the situation
  • ability to reason or weigh up the risks/benefits
  • ability to express a choice

It is still possible to conduct advance care planning with individuals who have lost decision-making capacity.

If they have previously legally appointed a substitute decision-maker, there are certain documents that can be completed on the person’s behalf.

Through supported decision-making, a person with limited decision-making capacity can still be involved in advance care planning conversations. They may still be able to discuss certain aspects, such as their overall values and what they consider a reasonable outcome, even if they are unable to discuss specific things.

The relevant legislation for each jurisdiction sets out the decision-making principles that the SDM should follow when making decisions.

Substituted judgement

Substituted judgement seeks to approximate what the person would decide at the time the decision is being made, if they were able to make their own decision – 'to stand in the shoes' of the person who lacks decision-making capacity. 

The decision-maker should use the following principles to assist with this:

The substitute decision-maker is required to fully take into account the person’s views (current where appropriate, and previous, written or oral) and make the decision they truly believe the person would make in the current circumstances.

The decision-maker needs to consider whether the outcomes of care and treatment, as they understand them to be, are consistent with the values, and preferred outcomes that have been previously expressed by the person.

Whilst substituted judgment in many jurisdictions is the standard for decision-making on behalf of a person lacking decision-making capacity, there are circumstances where the person’s preferences are unknown, and cannot be inferred. This includes circumstances where the person may not have ever had capacity. In these circumstances “best interests” standards are utilised.

Best interests

The ‘best interests’ standard of decision making requires decision-makers to make the decision that provides the maximum anticipated benefit to person  and entails weighing the relative benefits and harms of different treatment options. This generally includes making decisions that provide maximum anticipated benefit to the person whilst minimising restrictions and that seeks to optimise care and protection of the person. There is variation as to what should be included in a best interests decision-making standard.

Dad in wheelchair with kids at playground

Advance care planning for health and care professionals

In various healthcare settings

Different settings may need different approaches to start the advance care planning conversation.

Learn more