Consultation Paper on Bioethics - Law Reform Commission

(c) Australia
which may arise relating to the giving effect to advance directives to
refuse medical treatment.”
3.32 In Queensland, a rather confusing statutory situation exists, whereby
two provisions appear to govern the situation relating to capacity. First,
Schedule 3 of the Queensland Powers of Attorney Act 1998 states that a
person is regarded as having capacity if he or she is capable of understanding
the nature and effects of decisions, can freely and voluntarily make decisions
and can communicate the decision in some way. Under 42 of the 1998 Act, an
adult can only make an advance directive if he or she understands the following
matters:
i) “the nature and likely effects of each direction in the advance health
directive;
ii) a direction operates only while the principal has impaired capacity for
the matter covered by the direction;
iii) the principal may revoke a direction at any time the principal has
capacity for the matter covered by the direction;
iv) at any time the principal is not capable of revoking a direction, the
principal is unable to effectively oversee the implementation of the
direction.”
The Queensland 1998 Act does not clarify how the two provisions interrelate.
Willmott submits that a possible interpretation is that section 42 sets out a nonexhaustive
list of matters that an adult must be able to understand in order to
satisfy the Schedule 3 test of „capacity‟. 54 In order to be enforceable, an
advance health directive must also include a certificate that is signed and dated
by a doctor attesting to the fact that the maker had the necessary capacity to
complete the document at the time of making it. 55
(d) Conclusions
3.33 In the wake of Laffoy‟s J comments in Fitzpatrick v FK, it is clear that
guidance on the issue of capacity is required for healthcare decisions. Such
guidance could come from the Commission‟s proposed Working Group on
54 Willmott “Advance Directives to Withhold Life-Sustaining Medical Treatment:
Eroding Autonomy Through Statutory Reform” (2007) 10(2) Flinders Journal of
Law Reform 287 at 291.
55 Section 44(6) of the Powers of Attorney Act 1998 (Qld).
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