Consultation Paper on Bioethics - Law Reform Commission

4.53 Australian statutes have dealt extensively with the condition that an
advance directive must have been made in a voluntary fashion. 86 In
Queensland, the issue of voluntariness is subsumed within the definition of
„capacity‟. An adult does not have capacity unless he or she can “freely and
voluntarily” make a decision about a matter. 87 In the Australian Capital Territory,
a directive is void if it is obtained through the use of “violence, threats,
intimidation or [if a person] otherwise hinders or interferes with [the maker]…for
the purpose of…obtaining” a directive. 88 Finally, in Victoria, witnesses who sign
a refusal of treatment certificate must attest to the fact that they are satisfied
that the adult‟s “decision is made voluntarily and without inducement or
compulsion.”
(7) Interpretation
4.54 One of the greatest problems facing healthcare professionals who
must interpret advance care directives is that they are frequently unclear and
ambiguous even when they least appear to be. As a result, it has been argued
that “signing a living will is imprudent, because at the very least, you risk putting
yourself at the mercy of the people who do not know what it
means…Philosophical questions aside-why die stupidly?” 89 The environment in
which advance directives are commonly interpreted in will not make the task of
interpretation any easier:
“Whereas a complex will can be interpreted at leisure by a probate
lawyer trained for the task, a detailed advance directive may fall for
more urgent interpretation by a harried and over-worked clinician in a
casualty department with no such training in the interpretation of legal
documents. Is it prudent to entrust one‟s life to what may be a rushed
interpretation by a busy hospital doctor?” 90
4.55 In the absence of legislation on advance directives, the dictum of
Denham J in Re a Ward of Court (No 2) is instructive when considering the
position of advance care directives in an emergency:
86 Willmott, White and Howard “Refusing Advance Refusals: Advance Directives
and Life-Sustaining Medical Treatment” (2006) 30 Melbourne University Law
Review 211 at 218.
87 Schedule 3 of the Powers of Attorney Act 1988 (Qld).
88 Section 19(1)(b) of the Medical Treatment Act 1994 (ACT).
89 Stone “Advance Directives, Autonomy and Unintended Death” [1994] 8 Bioethics
191.
90 Power “Bioethics and the End of Life” (2008) 13(1) Bar Review 19 at 24.
108