Principles for Substituted Decision-Making about withdrawing or with holding Life-Sustaining Measures in Queensland: A Case for Legislative Reform

Abstract

In Queensland, the Guardianship and Administration Act 2000 (Qld) (GAA) and the Powers of Attorney Act 1998 (Qld) (PAA) (collectively referred to as the guardianship regime) comprise a scheme to facilitate substitute decision-making by and for adults with impaired capacity, including decision-making about withdrawing or withholding life-sustaining measures (WWLSM). A substitute decision-maker, who will most commonly be a family member or close friend, making a decision about WWLSM must apply (if the decision is made under the GAA), or comply with (if the decision is made under the PAA), the General Principles (GPs) and the Health Care Principle (HCP)(collectively referred to as the Principles). The factors in the GPs must be applied or complied with when a decision is made under the scheme, whether it is a decision about financial or personal (including health) matters. The HCP must be applied or complied with in relation to health decisions, and is non-specific to life-sustaining measures.This paper examines whether the Principles are adequate to effectively guide decision-making about WWLSM. This examination considers the Queensland regime for decision-making about WWLSM, relevant aspects of the common law, the Principles, application of the Principles by the Guardianship and Administration Tribunal (GAAT or the Tribunal), and by a fictitious lay decision-maker through a case study, and analysis of issues arising from the application of the Principles.