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Advanced Health Directives and the Voluntary Assisted Dying Bill

Queensland’s Voluntary Assisted Dying (“VAD”) Bill is under review by a parliamentary committee at the time of writing this post.

If the VAD Bill is passed into law it would allow an eligible person who is suffering from a terminal illness to choose the timing and circumstances of their death.  This raises some interesting questions about the status of and interaction with Advanced Health Directives (AHDs) made under the Powers of Attorney Act (Qld) 1998.

AHDs record a person’s directions for their future medical treatment or health care in the event they lose the capacity to make such decisions. These directions help family members and health professionals make decisions regarding the person’s health care when they are unable to communicate their wishes any longer.

Without an AHD, important decisions about a person’s health care must be made by an attorney appointed under an enduring power of attorney (if they are appointed to make health decisions) or, if there is no attorney, by the person’s next of kin (referred to as a statutory health attorney in the legislation).

The proposed Voluntary Assisted Dying laws

A rigorous procedure has been suggested in the Bill before someone can undertake voluntary assisted dying.

This includes eligibility requirements which state that a person must have been diagnosed with a disease, illness or medical condition that:

  • is advanced, progressive and will cause death;
  • is expected to cause death within 12 months; and
  • is causing suffering that the person considers to be intolerable.

It should be noted that being elderly, frail, disabled or suffering from a mental illness will not make someone eligible for voluntary assisted dying.

Once a person establishes eligibility, a process commences involving assessment by two doctors who are relevantly qualified, registered health practitioners. This process may result in a final decision in which death results either from self-administration or administration by a practitioner of a substance that causes death.

A key safeguard in the proposed laws regarding voluntary assisted dying is the requirement for the person to have decision-making capacity at each stage in the process.

This capacity is independently assessed by two medical practitioners as part of the process outlined above.

A person will be assessed to have decision-making capacity if they:

  • understand the nature and effect of decisions about access to voluntary assisted dying;
  • freely and voluntarily make decisions about access to voluntary assisted dying;
  • communicate decisions about access to voluntary assisted dying in some way.

The operation of AHDs

AHDs in Queensland have legal effect under the Powers of Attorney Act 1998 (“the Act”)

It is important to note that an AHD ‘operates only while the principal has impaired capacity for the matter covered by the direction’ pursuant to s36 of the Act.

A directive may give directions about future health care, including refusing life-sustaining treatment.

There are specific criteria for the directions about refusing life-sustaining treatment to apply, including that:

  • they have a terminal illness or condition that is incurable or irreversible, and it is the opinion of the treating doctor and another doctor that the person is expected to die within a year; or
  • they are in a persistent vegetative state (severe and irreversible brain damage while basic bodily functions such as heart beating continue); or
  • they are permanently unconscious with brain damage so severe there is no reasonable prospect of them regaining consciousness; or
  • they have an illness or injury of such severity that they will be likely to always require life-sustaining treatment to survive.

The person must also have no reasonable prospect of regaining decision-making capacity for health matters

The intersection between the proposed Voluntary Assisted Dying laws and AHDs

Since an AHD can record a person’s directions to administer or remove life-sustaining measures, a question that arises if the Voluntary Assisted Dying laws are passed is what would happen if the directions stated in an AHD conflict with a person’s wishes to seek access to the VAD process.  Since an AHD does not operate unless a person has lost decision-making capacity for health matters and is unlikely to regain that capacity, it does not preclude a person from seeking to access the VAD process.  This is because the VAD process is only available to a person who has been confirmed by two doctors to have decision-making capacity for VAD issues, at which time the AHD has no application.

A second question that arises is whether a person acting as an attorney for health matters under an Enduring Power of Attorney can take the steps necessary to end another person’s life under the Voluntary Assisted Dying legislation.  Under the proposed VAD legislation the answer is a clear no.  This is because an attorney for health matters can only make decisions if the principle does not have the capacity for health matters, and the proposed VAD legislation only allows a person with decision-making capacity to be eligible for VAD.

A Queensland Law Reform Commission Consultation Paper in October 2020 refers to the concerns of people with family members suffering from dementia.

What is the position if a person who starts the voluntary assisted dying process but loses, or is at risk of losing, their decision-making capacity before they complete the process?

The Commission noted that the key safeguards in the Bill require a person to have decision-making capacity at different stages of the process and in exercising judgement, must be acting voluntarily and without coercion.

The Bill also allows for a person who is eligible for or has been approved for access to voluntary assisted dying, to change their mind at any time and discontinue the process

In contrast, AHD remains a tool to communicate health care directions which only apply in very specific circumstances when capacity has been lost. The AHD will allow the family and medical practitioners to remove any life-sustaining measures in accordance with the AHD, but will not allow any person to take the positive steps necessary to proactively end a person’s life as permitted under the proposed VAD laws.

Consult the experts

If you need further information or guidance on any of the issues raised in this post, speak with Delaney & Delaney today.

We’ve helped many people create an AHD as part of their estate planning and can assist you to identify the key issues involved, including whether the proposed voluntary assisted dying laws will have any impact on your plan.

Get in touch today for an initial consultation.