Advance care planning and the law

Each state and territory has different laws

There are laws relevant to advance care planning in all Australian states and territories. There are differences between states and territories, in what the law covers and how the laws operate.

‘Statutory’ means covered by state and territory laws. Every state and territory have a statutory form for appointing a substitute decision-maker. Every state and territory except NSW has a statutory form for future health care choices. These statutory forms have different names in different states and territories. What can be included in the documents also differs between states and territories.

Find out more about how to record your choices in your state and territory.

Legally binding documents

Statutory forms relating to advance care planning are formal documents with specific requirements, for example in relation to signing and witnessing. These forms contain legally binding sections. This means that these sections must be followed, and there are potential legal consequences of not following them.

A binding refusal (also called a binding provision) is when a person says they don’t want a certain medical treatment or health care in the future. The refusal must be clearly expressed in their advance care directive.

When a refusal is binding, it means:

• it must be followed by everyone, including substitute decision-makers and health professionals
• their decision can’t be overruled, even if others think the treatment might help
• it’s treated like a legal instruction about their care.

Other preferences in an advance care directive, like values or general wishes are important too. But only binding refusals are legally required to be followed.

It’s important to note that:

• not everything in an advance care directive is legally binding
• there are conditions or circumstances in which a legally binding section does not have to be followed.

The laws on this are complex and different in every state and territory. Some examples of the exceptions which apply in some states and territories include:

• if the instructions in a directive are not consistent with good medical practice
• if the instructions in a directive are ambiguous or uncertain
• if circumstances have changed in ways that the person would not have anticipated (for example, new treatments are available that were not developed when they wrote their instructions).

In addition, a person can’t demand to have treatment that is clinically inappropriate, and doctors don’t have to provide ‘futile’ or ‘non-beneficial’ treatment. Find out more about making specific instructions.

People can also choose to write their wishes and preferences in other ways, which guide and inform decisions about their care, but which aren’t legally binding. Read about how to record your choices.

Substitute decision-makers and doctors still need to take into account a person's wishes and preferences, even if they're recorded in a document that isn't legally binding.

Common law advance care directives

Common law advance care directives are advance care directives that are recognised by the common law (that is, decisions made by judges in the courts). They don’t follow a particular format and there are no formal requirements other than being made voluntarily by a person with decision-making capacity.

Common law advance care directives aren’t legally binding in Queensland – only statutory advance care directives are legally binding in Queensland. In Victoria, the only instruction in a common law advance directive that is recognised as legally binding is an instruction to refuse treatment.

In practice, it can be difficult if doctors aren’t sure whether the instructions in a document are legally binding or not. If you have very strong feelings about particular treatments or have very specific requirements, it's best to complete the statutory advance care directive in your state or territory.

Decision-making capacity

To complete legally binding documents, a person must have ‘decision-making capacity’. An adult is presumed to have decision-making capacity unless there is evidence to the contrary.

Capacity means a person:

• understands the information
• can retain the information long enough to make a decision
• can use the information to weigh up pros and cons
• can communicate a decision by any means.

Capacity is decision-specific. This means that a person can have capacity to make some decisions, at some times.

Some states and territories have specific requirements about how capacity is defined when making particular legally-binding documents. It’s important to check the instructions and guides for any documents you’re completing, to make sure they’re completed in a way that’s valid.

If a person has impaired decision-making capacity, there are a number of ways they can engage in advance care planning, including through conversations, and with support if required. Read about advance care planning for a person who can’t make their own decisions.

Advance care planning is enacted when a person has impaired capacity to make decisions about their health care and treatment.

Learn more about when advance care planning takes effect.

Is my document valid in another state or territory?

Because each state and territory has their own laws, the question of whether a document made in one state or territory is recognised in another is complex.  Recognition depends on:

• the type of document (such as an advance care directive or a substitute decision maker appointment)
• what it includes that you want recognised (such as specifics instructions to consent to a particular treatment)
• which state or territory it was prepared in
• which state or territory you want it recognised in.

In many cases, valid statutory documents will be recognised in other parts of Australia when the content is in line with the laws in the receiving state or territory. For example, in some states and territories the only legally binding instruction you can give is a refusal of treatment; instructions to consent are not legally binding.

You can get help and support if you have questions about your documents.

Don’t forget that general statements about a person’s values and preferences aren’t legally binding even in the state or territory where they were made. But they must be taken into account by substitute decision makers in making decisions on behalf of a person.

It can be difficult in practice if doctors are not sure how to interpret or apply an advance care directive from another state or territory. They may need to seek advice to do so, which could cause delays. To avoid delays or uncertainty, it's best to complete the statutory advance care directive for the state or territory where you want it recognised.

It's also best to formally appoint a substitute decision-maker using the relevant form for where you want it recognised to avoid confusion or delays.