Advance directives, autonomy and the refusal of life sustaining medical treatment

ADVANCE DIRECTIVES, AUTONOMY AND THE REFUSAL OF LIFE-SUSTAINING MEDICAL TREATMENT Lindy Willmott LLB (Hons 1) BCom (UQ) LLM (Cantab) PhD Thesis by Published Papers Health Law Research Program School of Law Queensland University of Technology 2011 KEW O RD S Advance directives - life-sustaining medical treatment - advance reusal o f life sustaining medical treatment - withholding of treatment - withdrawal of treatment living will - contemporaneous reusal of medical treatment autonomy - right to self-determination - sanctity of life - medical ethics - validity of advance directives - statutory regulation of advance directives - judicial approaches to autonomy advance care planning ABSTRACT As Australian society 1s agemg, individuals are increasingly concerned about managing their uture, including making decisions about the medical treatment they may wish to receive or reuse if they lose decision-making capacity To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance reusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a uture time This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that reuse life-sustaining medical treatment In the ive papers that comprise this thesis, the law that gove s this area is examined, and the ethical principle of autonomy is used to critically evaluate that law The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about reusal of medical treatment The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation The finding o f the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline o f medical ethics and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous reusal of medical treatment Lindy Willmott, Ben White and Ben Mathews, 'Law, autonomy and advance directives' (2010) 18 Jounal ofLaw and Medicine 66 (reproduced in chapter 3) 11 Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive reusing treatment that will operate if he or she later loses decision-making capacity This research finds that co on law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that reuse treatment as binding However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that reuse treatment have not been followed The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance reusals of life-sustaining medical treatment This review commences with an examination o f parliamentary debates to establish why legislation was thought to be necessary It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals The research inds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the ield Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that reuses life-sustaining medical treatment will not expose them to legal sanction However, the research also inds that the legislation places so many restrictions on when an advance directive reusing treatment can be made, or will operate, that they have not been successul in promoting individual autonomy Lindy Willmott, ' Advance directives reusing treatment as an expression of autonomy: Do the courts practise what they preach? ' (2009) (4) Common Law World Review 295 (reproduced in chapter 4); and, to a more limited extent, Lindy Willmott, ' Advance directives to withhold life-sustaining medical treatment: Eroding autonomy through statutory reform' (2007) Flinders Jounal of Law Reform 287 (reproduced in chapter 5); and Lindy Willmott, Ben White and Michelle Howard, 'Reusing advance refusals: Advance directives and life sustaining medical treatment' (2006) 30 Melbourne University Law Review 1 (reproduced in chapter 6) Willmott, 'Advance directives to withhold life-sustaining medical treatment: Eroding autonomy through statutory reform ' , above n ; Willmott, White and Howard, ' eusing advance reusals: Advance directives and life-sustaining medical treatment' , above n 2; and Lindy Willmott, 'Advance directives and the promotion of autonomy: A comparative Australian sta utory analysis' (20 0) Journal ofLaw and Medicine 556 (reproduced in chapter 7) Original and signiicant contributions to knowledge The five papers compnsmg this thesis make seven original and significant contributions to knowledge within t e discipline of law The thesis comprehensively identifies and rev ews all of the publicly available common law decisions in Australia and England that adjudicate on advance directives th t reuse life-sustaining medical treatment Such a review has not before been undertaken The cases that are identified are critiqued through close legal analysis of the reasoning used and principles applied A theoretical evaluation is then undertaken by assessmg whether the approach taken by the judiciary as examined through the legal critique 1s consistent with the principle of autonomy The thesis also reviews, for the first time, all of the parliamentary debates in Australian jurisdictions where such debate preceded the enactment of legislation The thesis also examines all Australian legislation in detail, explaining how the statutes regulate advance directives that reuse life-sustaining medical treatment Features of a legislative ramework that are necessary to promote individual autonomy are suggested The examination of the legislation (5 above) and the identification of features of a legislative model that are needed to promote autonomy (6 above) provide the groundwork for the inal original and significant contribution: a critique of the legislation using the benchmark of autonomy LIST OF PUBLICATIONS Lindy Willmott, Ben White and Ben Mathews, ' Law, autonomy and advance directives ' (20 0) Jounal ofLaw and Medicine 366 - 389 Lindy Willmott, 'Advance directives reusing tr atment as an expression of autonomy: Do the cour s practise what they preach? ' (2009) 38(4) Common Law World Review 295 - 34 Lindy Willmott, 'Advance drectives to withhold life-sustaining medical treatment : Eroding autonomy through statutory reform' (2007) Flinders Journal ofLaw Reform 287 - 31 4 Lindy Willmott, Ben White and Michelle Howard, 'Reusing advance reusals: Advance directives and life-sustaining medical treatment' (2006) 30 Melboune Universiy Law Review 1 - 243 Lindy Willmott, 'Advance directives and the promotion of autonomy: A comparative Australian statutory analysis' (20 0) Jounal of Law and Medicine 556 - TABLE O F CO NTENTS Keywords i Abstract ii List of Publications v Statement of Original Authorship viii Acknowledgements ix PART INTRODUCTION AND LITERATURE REVIEW Chapter - Introduction 1.1 2.7 2.8 2.9 2 20 26 30 33 Introduction 33 Advance directives: background 34 Advance directives in a broader regulatory context: decision making for adults who cannot decide 40 Literature describing common law regulation of advance directives 46 Literature describing statutory regulation 52 Literature on autonomy as a normative ramework for regulation of advance directives 56 Literature on critique of the common law 68 Literature on critique of the advance directive legislation 72 Original and significant contributions to knowledge 76 2.4 2.5 2.6 Chapter - Literature Review 2.2 2.3 Description of the research problem, overall objectives and specific aims Account of research proress: Linking the research papers Account of research proress: Linking the objectives, aims and research papers Scope of the thesis Original and significant contributions to knowledge PART Chapter PUBLISHED PAPERS Law, Autonomy and Advance Directives 82 83 Chapter - Do the Courts Practise What They Preach? 08 Chapter - Eroding Autonomy Through Statutory Reform Chapter Reusing Advance Reusals 85 219 Chapter - A Comparative Statutory Analysis 56 PART - GENERAL DISCUSSION Chapter - Discussion 8.1 8.3 246 247 Main features linking the publications cumulative effect of the papers 247 Original and signiicant contributions to knowledge 262 Final ren1arks 266 PART - APPENDICES 268 Appendix A Statement of Contribution of Co-Authors for 'Law, Autonomy and Advance Directives ' Thesis by Published Paper 269 Appendix B - Statement of Contribution of Co-Authors for 'Reusing Advance Reusals ' Thesis by Published Paper 271 BIBLIOGRAPHY 273 STATEMENT O F O RI GINAL AUTH ORSHIP The work contained in this thesis has not been previously submitted for a degree or diploma at any other higher education institution To the best of my knowledge and belie, the thesis contains no material previously published or written by another person except where due reference is made Signature: Date: ACKNOWLED GEMENTS Writing the acknowledgements section must surely be the most enj oyable stage of a PhD There are a number of people who I would like to thank First, sincere thanks to my supervisors (and close riends and colleagues), Associate Professor Ben White and Associate Professor Ben Mathews Their supervision was outstanding I reatly admire the intellect, rigour and interity that they bring to all aspects of their academic endeavours, and I was fortunate to beneit rom these qualities in the course of my doctoral studies Their support as close riends and colleagues was equally important, and I thank them for their conidence in my ability to complete this thesis and their encouragement during difficult stages Secondly, thanks to my co-authors, Ben White, Ben Mathews and Michelle Howard Research collaboration is one o the most enjoyable aspects of academic life, and it was satisfying to write two ofthe articles in my thesis with co-authors I also acknowledge the contribution o f the broader academic community which makes postraduate study possible Academics regularly and sellessly invest time by supervising postgraduate research students, participating in final seminar panels and examining theses Without this investment, postraduate study would rind to a halt Thanks also to the library staff, Susan Carter and Michael Unwin, who assisted me on numerous occas ns Thanks to Jim, Kaley and Jessica who provided support through the long PhD j ourney They made sacrifices and celebrated the successes at many stages along the way Finally, I would like to acknowledge my parents, Ron Willmott and Shirley Willmott, who have supported and encouraged me in all of my endeavours As ever, thanks to my dad who proofed the thesis in his usual thorough fashion I dedicate this thesis to Adelaide Rose who will never be forgotten IX Taylor, D and P Cameron, 'Advance care planning improvement ' (2002) 32 Internal Medicine Jounal 475 Australia: verdue for Taylor, J S, 'Autonomy and informed consent: A much misunderstood relationship ' (2004) Journal f Value Inquiy Teno, J , H Nelson and J Lynn, 'Advance care planning: Priorities for ethical and empirical research' ( 994) Hastings Center Report S32 Teno, J et al, 'Do advance directives provide instructions that direct care?' ( 997) 45(4) Jounal ofthe American Geriatrics Sociey 508 Thompson, T, R Barbour and L Schwartz, 'Adherence to advance directives in critical care decision making: Vignette study' (2003) 327 British Medical Journal ! Tonelli, M, 'Pulling the plug on living wills: A critical analysis of advance directives' ( 996) 1 Chest Vinen, J, ' Advance care plam1ing and advance directives: Time for action' (2002) 32 Intenal Medicine Jounal 435 Weinberg, J K, 'Whose right is it anyway? Individualism, community, and the right to die: A cotm entary on the New Jersey experience' ( 988-89) 40 The Hastings Centre Report 1 Weissman, D E, 'Decision making at a time of crisis near the end of life' (2004) 292( 4) Journal ofthe American Medical Association 655 White, B and L Willmott, 'Comon law advance directive: An Australian authority' (2009) 29(5) Queensland Layer 244 White, B and L Wil mott, 'Contemporaneous reusals of life-sustaining treatment lawul' (2009) 29 The Queensland Layer 290 White, B and L Willmott, 'Futility, finances and families: Decisions to withdraw life sustaining medical treatment' (2004) (4) Australian Health Law Bulletin White, B and L Willmott, 'Will you d o as I ask?: Compliance with instructions about health care in Queensland' (2004) Queensland Universit of Technoloy Law and Justice Jounal 77 White, B, L Willmott and J Al en, 'With olding and withdrawing life-sustaining treatment: Criminal responsibility for established medical practice? ' (20 0) Jounal ofLaw and Medicine 849 Willmott, Lindy, ' Advance directives and the promotion of autonomy: A comparative Australian statutory analysis' (20 0) Journal of Law and Medicine 556 286 Willmott, Lindy, 'Advance directives reusing treatment as an expression of autonomy: Do the courts practise what they preach?' (2009) (4) Common Law World Review 295 Willmott, Lindy, 'Advance directives to withhold life-sustaining medical treatment : Eroding autonomy through statutory reform' (2007) Flinders Journal of Law Reform 287 Willmott, L and B hite, 'A model for decision making at the end o f life: Queensland and beyond ' (2006) 25 Medicine and Law 201 Willmott, L and White, ' Charting a course through dificult legislative waters: Tribunal decisions on life-sustaining measures ' (2005) Journal of Law and Medicine 44 Willmott, Lindy, Ben White and Ben Mathews, 'Law, autonomy and advance directives ' (20 0) Journal ofLaw and Medicine 366 Willmott, L, B hite and D Cooper, 'The Schiavo decision: Emotional, but legally controversial? ' (2006) Bond Universiy Law Review 32 Willmott, Lindy, Ben White and Michelle Howard, 'Reusing advance reusals: Advance directives and life-sustaining medical treatment ' (2006) 30 Melboune Universiy Law Review 1 Winzelberg, G, L Hanson and J Tulsky, 'Beyond autonomy: Diversifying end-of-life decision-making approaches to serve patients and families' (2005) 53 Jounal of American Geriatrics Sociey 046 Witting, C, 'Medical decision-making for the incompetent' ( 996) Journal ofLaw and Medicine 77 Wrigley, A, Personal identity, autonomy and advance statements (2007) 24(4) Jounal ofApplied Philosophy Young, R J and A King, ' Legal aspects of withdrawal o f therapy' (2003) (5) Anaesthesia and Intensive Care 287 BOOKS Bartlett, P, Blackstone 's Guide to the Mental Capacit Act (Oxford University Press, 2nd ed, 008) Beauchamp, TL and F Childress, Principles of Biomedical Ethics (Oxford University Press, h ed, 2009) Beauchamp, TL and JF Childress, Principles of Biomedical Ethics (Oxford University Press, th ed, 200 ) Berlin, I , Four Essays on Libery (Oxford University Press, 969) Buchanan, A and D Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge University Press, 989) Cantor, N, Advance Directives and the Pursuit of Death with Digniy (Indiana University Press, 993) Cantor, N, Legal Frontiers ofDeath and Dying (Indiana University Press, 987) Collier, B, C Co ne and K Sullivan (eds), Mental Capaciy: Powers ofA ttoney and Advance Health Directives (The Federation Press, 2005) Devereux, J, A ustralian Medical Law (Cavendish, ed, 2007) Dworkin, G, The Theoy and Practice of A utonomy (Cambridge University Press, 98 8) Dworkin, R, Lfe 's Dominion: An Argument A bout Abortion and Euthanasia (Harper Collins, 993) Foster, C, Choosing Life, Choosing Death : The Tyranny of Autonomy in Medical Ethics and Law (Hart, 2009) Freckelton, I and K Petersen (eds), Disputes and Dilemmas in Health Law (The Federation Press, 2006) Freckelton, I and K Petersen (eds), Controversies in Health Law (The Federation Press, 999) Glover, J, Causing Death and Saving Lives (Penguin Books, 977) Hockton, A, The Law of Consent to Medical Treatment (Sweet and Maxwell, 2002) Jackson, , Medical Law: Text, Cases and Materials (Oxford University Press, 2006) 288 Jackson, E, Regulating Reproduction (Hart Publishing, 200 ) Ketmedy, I and A Grubb, Medical Law (Butterworths, 3rd ed, 2000) Kerridge, I, M Lowe and C Stewart, Ethics and Law for the Health Professions (Federation Press, 3rd ed, 2009) Kerridge, I, M Lowe and J McPhee, Ethics and Law for the Health Professions (Federation Press, 2nd ed, 2005) Kuhse, H and P S inger (eds), A Companion to Bioethics (B lackwell Publishing, 2nd ed, 2009) Maclean, A, Autonomy, Informed Consent and Medical Law (Cambridge University Press, 2009) Maehle, A and J Geyer-Kordesch (eds), Historical and Philosophical Perspectives on Biomedical Ethics: From Patenalism to Autonomy? 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and Medical Practice (Butterworths, rd ed, 2008) Skene, L, Law and Medical Practice (Butterworths, 2nd ed, 2004) White, B, F McDonald and L Willmott (eds), Health Law in Australia (Thomson, 20 0) REPORTS Advance Directive Review Committee, Planning Ahead: Your Health, Your Money, Your Life, Second Report of the Review of South Australia's Advance Directives (2008) Advance Directive Review Co ittee, Planning Ahead: Your Health, Your Money, Your Life, First Report of the Review of South Australia's Advance Directives (2008) Advance D rective Review Cotmnittee, Planning Ahead: Your Health, Your Money, Your Lfe, An Issues Paper for the Review of South Australia's Advance Directives (2007) Alzheimer ' s Australia, Decision Making in Advance: Reducing Barriers and Improving A ccess to Advance Directivesfor People with Dementia, Discussion Paper No (2006) Alzheimer' s Australia NSW, Advance Health Care Directives, Position Statement (2008) Clinical, Technical and Ethical Principal Committee, The Australian Health Ministers ' Advisory Council, A National Framework For Advance Care Directives (20 0) Department of Justice and Community Safety, Australian Capital Territory, Substitute Decision-Making: Review of the Powers of A ttoney Act 956, I ssues Paper (2004) House of Representatives Standing Co mnittee on Legal and Constitutional Affairs, Parliament of Australia, Older People and the Law (2007) Irish Council for B ioethics, Is it T me for Advance Healthcare Directives?, Opinion (2007) Kerridge, I et al, Advance Directives (Issues Paper 5, The Australian Institute of ealth Law and Ethics, 997) 290 Law Commission, Mental Incapaciy, Report No 23 ( 995) Law Commission, Mentally Incapacitated and Other Vulnerable Adults: Public Law Protection, Consultation Paper No ( 993) Law Commission, Mentally Incapacitated Adults and Decision-Making: Medical Treatment and Research, Consultation Paper No 129 ( 993) Law Commission, Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction, Consultation Paper No 28 ( 993 ) Law C01 unission, Mentally Incapacitated Adults and Decision-Ma ing: An Overview, Consultation Paper No 1 ( 99 ) Law Commission, Decision-Making and Incapaciy: A Discussion Document ( 989) Law Reform Commission o f lreland, Bioethics: Advance Care Directives, Report No 94 (2009) Law Reform Commission o f Ireland, Bioethics: Advance Care Directives, Consultation Paper (2008) National Health and Hospitals Reform C01mnission, A Healthier Future for all A ustralians, Final Report (2009) Northern Territory Law Reform Committee, Report of the Powers of Attoney Act and Medical Enduring Powers ofAttoney, Report No 3 (2009) Parliament of Victoria, Social Development Committee, Final Report upon the Inquiy into Optionsfor Dying with Digniy ( 987) President 's Council on Bioethics, Taking Care: Ethical Caregiving in our Aging Sociey (2005) Queensland Law Reform Commission, A Review of Queensland's Guardianship Laws Discussion Paper, Working Paper No 68 (2009) Queensland Law Reform Commission, Assisted and Substituted Decisions: Decision Making by andfor People with a Decision-Making Disabiliy, Report No 49 ( 96) Stewart, C, Public Interests and the Right to Die: Compelling Reasons for Overriding the Right to Se Determination (Issues Paper 4, The Australian Institute of Health Law and Ethics 2000) Street, A and G Ottmann, State of the Science Review of Advance Care Planning Models (Latrobe University, 2006) 291 Western Australian Govermnent, Medical Treatmentfor the Dying, Discussion Paper (2005) Western Australian Law Reform Commission, Medical Treatment for the Dying, Report No 84 ( 99 ) White, B and L Willmott, Rethinking Life-Sustaining Measures: Questions for Queensland (2005) Queensland University of Tec ology at 27 September 20 CASE S A v Hoare [2008] A C 844 Airedale NHS Trust v Bland [ 993] AC 789 A uckland Area Health Board v A ttorney-General [ 993] NZLR 235 Australian Capital Territoy v JT [2009] ACTSC 05 B v Responsible Medical O cer, Broadmoor Hospital [2005] EWHC 93 BAH [2007] N SWGT (Unreported, Robinson P , Kurrie and Circuitt, February 2007) Boyse v Rossborough ( 857) ER 1 92 Brightwater Care Group (!ne) Rossiter [2009] WASC 229 B WV Gardner (2003) VR 487 Cole v Tuner ( 704) Mod 49 Collins Wilcock [ 984] WLR 1 72 Cruzan v Director, Missouri Department ofHealth 497 US 26 ( 990) Department of Communiy Services v Y [ 999] NSWSC 644 F v R ( 983) 33 SASR 89 FI v Public Guardian [2008] NSWADT 263 Firmin v A ttorney-General [2007] NZHC 50 Fitzpatrick v K [2008] IEHC 04 292 Gillick v West Norfolk and Wisbech Area Health Authoriy [ 986] AC 1 Glossop Acute Services Trust v CH [ 996] FLR 762 HE v A Hospital NHS Trust [2003] FLR 408 HLtd v J [201 0] SASC 76 Hunter and New England Area Health Service v A (2009) 74 NSWLR 8 In A B (Application for Consent to Medical Treatment) [2004] 2004/1 867 (Unreported, New South Wales Guardianship Tribunal, April 2004) In re Guardianship ofSchiavo, So 2d 76 (Fla 2nd DCA 200 ) In re Storar NY 2d 63 Isaac Messiha (By his Tutor Magdy Messiha) v South East Health [2004] N SWSC 06 Korp (Guardianship) [2005] VCAT 779 KR v Bryn A lyn Communiy (Holdings) Ltd [2003] QB 44 Kracke v Mental Health Review Board [2009] VCAT 646 Malette v Shulman ( 990) 67 DLR (4 ) Messiha v South East Health [2004] N SWSC 06 Nancy B v Hotel-Dieu de Quebec ( 992) DLR (4th) NHS Trust v T (Adult Patient: Refusal ofMedical Treatment) [2005] All ER 87 Norfolk and Norwich Healthcare (NHS) Trust v W [ 996] FLR Northridge v Central Sydney Area Health Service (2000) NSWLR 549 Prety v United Kingdom (2002) EHRR Qumsieh 's Case (Unreported decision, Guardianship and Administration Bo ard, L Pilgrim, 24 February 998) Qumsieh v Guardianship and Administration Board & Anor [ 998] VSCA 45 Qumsieh v Pilgrim (Unreported, High Court or Australia, McHugh and Callinan JJ, 1 February 2000) 293 Re AK (Medical Treatment: Consent) [200 ] FLR 29 Re Alex: Hormonal Treatmentfor Gender Identiy Dysphoria [2004] FamCA 297 Re B (Adult: Refusal ofMedical Treatment) [2002] All ER 449 R (Burke) v General Medical Council [2005] QB 424 R (On the Application of AN) v The Mental Health Review Tribunal Northern Region) [2006] QB 468 R (On the Application ofBurke) v The General Medical Council [2006] QB 273 R (On the Application of Purdy) v Director of Public Prosecutions [2009] WLR 403 R (Prety) v Director of Public Prosecutions (Secretary of State for the Home Department Intervening), [2002] AC 800 Re C (Adult: Refusal ofMedical Treatment) [ 994] All ER Re E (A Minor) [ 993] FLR R e F [ 990] AC Re G [ 997] NZLR 201 Re HG [2006] QGAAT 26 Re K, W and H (Minors) (Consent to Treatment) [ 993] FCR 240 Re L (Medical Treatment: Gillick Competency) [ 998] FLR Re L (Patient: Non-Consensual Treatment) [ 997] FLR R e M (Medical Treatment: Consent) [ 999] FLR 097 Re ME (Medical Treatment) [ 997] FCR 54 Re MC [2003 ] QGAAT Re R (A Minor) (Wardship: Consent to Treatment) [ 992] Fam 1 Re R WG [2000] QGAAT Re S (Adult: Refusal ofMedical Treatment) [ 992] All ER 67 Re S (A Minor) (Consent to Medical Treatment) [ 994] FLR 065 294 Re TM [2002] QGAAT Re T (Adult: Refusal a/ Treatment) [ 992] All ER 649 Re W (A Minor) (Medical Treatment) [ 992] All ER 627 Rochdale Healthcare (NHS) Trust v C [ 997] FCR 274 Rogers v W itaker ( 992) 75 CLR 479 Royal A lexandra Hospital v Joseph [2005] NSWSC 422 Schloendo f v Sociey ofNew York Hospital ( 4) 1 NY 25 Secretary, Department of Health and Communiy Services (NT) v JWB ( 992) 75 CLR Short/and v North/and Health Limited [ 998] NZLR 433 St George 's Healthcare NHS Trust v S; R v Col!ins, ex parte S [ 998] All ER 673 State of Qld v Astill (Unreported decision, Supreme Court of Queensland, Muir J, January 2006) State of Queensland v D [2004] QdR 426 Stuart v Kirkland- Veenstra (2009) 23 CLR Stubbings v Webb [ 993] AC 498 Superintendent ofBelcherto State School v Saikewicz 73 Mass 728 The Queen (On the Application ofD) v The Mental Health Review Tribunal [2005] EWHC Vacco (A ttoney-General ofNew York) v Quill, 521 US ( 997) W Healthcare NHS Trust H [2005] WLR 834 Werth v Taylor 475 NW 2d 426 ( 99 ) White v Connolly [ 927] St R Qd Winter v Crichton ( 99 ) 23 NSWLR 1 WK v Public Guardian (No 2) [2006] NSWADT 295 LEGISLATION Acts Amendment (Consent to Medical Treatment) Act 2006 (WA) Adult Guardianship Act 988 (NT) Charter ofHuman Rights and Responsibilities 2006 (Vie) Consent to Medical Treatment and Palliative Care Act 1995 (SA) Criminal Code 1899 (Qld) Guardianship Act 1987 (NSW) Guardianship and Administration Act 2000 (Qld) Guardianship and Administration Act 995 (Tas) Guardianship and Administration Act 1993 (SA) Guardianship and Administration Act 990 (WA) Guardianship and Administration Act 986 (Vie) Guardianship and Management ofPropery Act 991 (ACT) Human Rights Act 2004 (ACT) Human Rights Act 1998 (UK) Medical Treatment Act 994 (ACT) Medical Treatment Act 988 (Vie) Medical Treatment (Health Directions) Act 2006 (ACT) Mental Capacity Act 005 (UK) Minors (Propery and Contracts) Act 70 (NSW) Natural Death Act 1988 (NT) Natural Death Act 983 (SA) New Zealand Bill ofRights Act 990 (NZ) Powers ofA ttorney Act 998 (Qld) 296 DELEGATED LEGISLATION Consent to Medical Treatment and Palliative Care Regulations 2004 (SA) Natural Death Regulations 1989 (NT) ILLS Acts Amendment (Advance Care Planning) Bill 2006 (WA) Directions for Medical Treatment B ill 2005 (Tas) E PLANATOR NOTES Explanatory Notes, Powers of Attorney Bill 997 (Qld) PAR IA ENTAR DE ATES ACT, Parliamentay Debates, Legislative Assembly, September 994, 2874 (Te y C molly) Northern Territory, Parliamentay Debates, Legislative Assembly, August 998, 53 , 3538 (Daryl Manzie) Queensland, Parliamentay Debates, Legislative Assembly, May 998, 025 (Denver Beanland) Queensland, Parliamentay Debates, Legislative Assembly, May 998, 025 (Liz Cunningham) Queensland, Parliamentay Debates, Legislative Assembly, October 987, (Denver Beanland) South Australia, Parliamentay Debates, House of Assembly, November 994, 989, 990 (Stephen Baker) South Australia, Parliamentay Debates, Legislative Council, August 99 , 60 (Barbara Wiese) South Australia, Parliamentay Debates, Legislative Council, August 99 , 60 (Christopher Su er) 297 Tasmania, Parliamentay Debates, Legislative Council, September 2005, 6-22 (Mrs Norma Jamieson) Victoria, Parliamentay Debates, Legislative Assembly, May 988, 66-8 (Andrew McCutcheon) Victoria, Parliamentary Debates, Legislative Assembly, May 98 , 67 (Andrew McCutcheon) Victoria, Parliament y Debates, Legislative Assembly, May 98 , 66 (Andrew McCutcheon) Victoria, Parliamentary Debates, Legislative Council, 23 March 98 , 3 -4, 3 (Evan Walker) Victoria, Parliamentary Debates, Legislative Council, 23 March 98 , 333 (Evan Walker) Western Australia, Parliamentay Debates, Legislative Council, December 2006, 9244b (Sue Ellery) Weste Australia, Parliamentay Debates, Legislative Assembly, June 2006, 406 b (Jim McGinty) TREATIES CON ENTIONS AND DECLARATIONS Conventionfor the Protection ofHuman Rights and Digniy ofthe Human Being with regard to the Application of Bioloy and Medicine: Convention on Human Ri hts and Biomedicine 99 7, ETS No 64, opened for signature April 997, (entered into force December 999) European Convention on Human Rights 1998, opened for signature November 950, UNTS 2 (entered into force September 95 ) International Covenant o n Civil and Political Rights 966, opened for signature December 966, 999 UNTS (entered into force 23 March 976) Universal Declaration of Human Rights 948, opened for signature December 948, UN Doe A at (entered into force December 948) Universal Declaration on Bioethics and Human Rights, opened for signature January 2005 (entered into force October 2005) 298 G IDANCE Australian Medical Association, The Role of the Medical Practitioner in End ofL e Care (2007) Australian Medical Association, The Role of the Medical Practitioner in Advance Care Planning (2006) Australian Medical Council, Good Medical Practice: A Code of Conductfor Doctors in A ustralia (2009) British Medical Association, Withholding or Withdrawing Life-Prolonging Treatment: Guidancefor Decision Making (200 ) National Health and Medical Research Council, Ethical Guidelines for the Care of People in Post-Coma Unresponsiveness (Vegetative State) or a Minimally Responsive State (2008) New South Wales Department of Health, Guidelines for End of Life Care and Decision-Making (2005) New South Wales Department o f Health, Using Advance Care Directives (2004) Office of Public Advocate, Practice Guidelines: Not for Resuscitation (2004) at 27 September 20 OT ER SO RCES B lackstone, W, Commentaries on the Laws ofEngland (Professional Books, th ed, 83 0) Butterworths, Halsbury 's Laws of Australia, vol (at September 2009) Medicine, ' Consent ' [280-3 025] Government of Western Australia, Department of Health, Advance Health Directives at 27 September 201 ueensland Government, Advance Care Planning Victorian aw Reform Commission, Guardianship at 27 S eptember 201 299 ... regulation of advance directives, and critique whether the justification of autonomy is sound in light of those criticisms Identification and synthesis of the common law and statutory regimes The second...KEW O RD S Advance directives - life- sustaining medical treatment - advance reusal o f life sustaining medical treatment - withholding of treatment - withdrawal of treatment living will... section The table provides an overview of the objectives and aims of the thesis, and sets out the sections of the papers that achieve those objectives and aims 1.2.1 Five research papers The thesis