Disclaimer – This article is for general educational purposes only and does not constitute legal or medical advice. End-of-life decision-making in Queensland can involve urgent capacity assessments, statutory time-frames, and formal QCAT orders. Families, clinicians, and substitute decision-makers should seek personalised guidance from a solicitor and, where necessary, obtain professional medical opinions when incapacity is suspected.
End-of-life medical questions—turning off a ventilator, approving palliative sedation, authorising surgery—demand fast, lawful answers. But what happens if the patient is unconscious or cognitively impaired? Queensland has a tiered decision-maker hierarchy set out in the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld). In urgent cases the Queensland Civil and Administrative Tribunal (QCAT) can step in.
This guide explains:
- the legal hierarchy of Substitute Decision-Makers (SDMs)
- how Enduring Powers of Attorney (EPAs) and Advance Health Directives (AHDs) operate
- the role of QCAT for disputed or complex situations
- key practical steps for clinicians and families at the bedside.
1. Core Legal Sources
| Legislation | Purpose |
|---|---|
| Powers of Attorney Act 1998 (Qld) | Creates EPAs; sets SDM hierarchy for health care. |
| Guardianship and Administration Act 2000 (Qld) | Gives QCAT power to appoint guardians and make urgent health decisions. |
| Queensland Capacity Assessment Guidelines 2020 | Clinical tool for assessing decision-making capacity. |
| Hospital and Health Boards Act 2011 (Qld) | Requires clinicians to follow valid directives or substitute decisions unless emergency exceptions apply. |
2. Capacity First: The Gatekeeper Question
A person is presumed capable until assessed otherwise. Under s 41 of the Powers of Attorney Act, capacity means the person can:
- Understand the nature and effect of the decision.
- Weigh up the risks and benefits.
- Communicate the decision in some way.
If any limb fails—due to sedation, delirium, dementia, stroke—the decision shifts to a substitute.
Practical tip: Treating doctors should document capacity assessments contemporaneously; a short note like “Pt GCS 15, oriented, understands treatment” or “GCS 7, non-verbal—incapable” prevents later disputes.
3. Hierarchy of Substitute Decision-Makers (Health Matters)
When there is no valid AHD covering the procedure, Queensland’s automatic order applies (Powers of Attorney Act ss 63–66):
- Guardian appointed by QCAT (if one exists).
- Attorney for health under an EPA.
- Statutory Health Attorney—next available adult in this priority:
a. Spouse or de-facto partner in a close continuing relationship
b. Adult carer not paid for care
c. Adult child
d. Parent
e. Adult sibling - Public Guardian (fallback if no one higher is available or appropriate).
Clinician checklist: Ask, “Is there an EPA or AHD in the chart or at home?” before defaulting to the statutory list.
4. Advance Health Directives (AHDs) Versus EPAs
| Feature | Advance Health Directive (AHD) | Enduring Power of Attorney (EPA) |
|---|---|---|
| Scope | Specific treatment instructions (e.g., refuse ventilation) and appointment of attorney. | Appoints attorney for health, personal and/or financial matters. |
| Takes effect | Only if the person lacks capacity and the clinical situation matches directive. | Can start immediately (if elected) or upon incapacity. |
| Formalities | Must be witnessed by doctor + eligible witness (JP/lawyer/C.dec). | Witnessed by lawyer, JP or C.dec; no doctor required. |
| Overrides? | AHD instructions override an EPA attorney if conflict. | Attorney decides only where AHD is silent or unclear. |
5. Urgent Decisions and QCAT’s Emergency Powers
5.1 When QCAT Steps In
- No available SDM or disagreement among family/attorneys.
- Allegations of attorney misconduct or conflict of interest.
- Life-sustaining treatment refusal contested by hospital.
QCAT can:
- Appoint an interim guardian (up to 3 months) within 24–48 hours.
- Provide urgent consent for, or refusal of, health care.
- Review or revoke an EPA.
5.2 Hospital Protocol
Most Queensland public hospitals have “Guardianship Officers” who file urgent QCAT applications electronically. Decisions are faxed/emailed to the ward and are legally binding on clinicians.
6. Common End-of-Life Scenarios
| Scenario | Relevant Law | Likely SDM | Key Considerations |
|---|---|---|---|
| Unconscious patient, valid AHD states “no CPR” | Powers of Attorney Act s 103 | Clinicians follow AHD | Ensure directive matches situation; document ref. |
| No AHD/EPA; spouse wants extubation, adult child objects | s 63 statutory list + Guardianship Act | Spouse outranks child | If dispute continues, hospital may seek QCAT ruling. |
| EPA exists but attorney suspected of financial abuse | Guardianship Act s 118 | QCAT can suspend attorney; appoint Public Guardian | Provide evidence (bank statements, neglect). |
| Unsigned handwritten note “Let me go” found on bedside | Succession Act s 18? (informal will) | Not a directive—no effect on health care | Use SDM hierarchy; QCAT if disagreement. |
7. How to Minimise Future Disputes
- Prepare an AHD and EPA early—avoid rushed hospital forms.
- Choose alternate attorneys in case your first choice is overseas or uncontactable.
- Discuss values—pain relief, life support, cultural rites—so attorneys can apply substituted judgement.
- Store originals with GP and hospital record; give certified copies to attorneys.
- Review every 2-3 years or after major health events.
8. Frequently Asked Questions
Q1. Can a doctor override a statutory health attorney?
Only in an immediate life-saving emergency where delay endangers life or the statutory attorney refuses consent unreasonably (see s 63(2)). Otherwise, clinicians must follow the hierarchy.
Q2. Does marriage automatically revoke an existing EPA or AHD?
Marriage revokes an EPA only if the new spouse is not already appointed; an AHD remains valid but conflicting directives should be updated.
Q3. Must an attorney consult other family members?
Legally, the attorney decides alone but is expected to act in the principal’s best interests and—where practicable—consult supportive family or friends.
Q4. How long does an urgent QCAT order take?
Same-day in extreme cases (phone hearing). Standard urgent matters: 24–48 hours.
Q5. Can multiple attorneys act jointly for health matters?
Yes, if the EPA specifies “joint” or “jointly & severally”. Joint attorneys must agree; deadlock can trigger QCAT review.
9. Key Takeaways
- Capacity assessment triggers substitute decision hierarchies; document findings.
- Advance Health Directives trump attorneys for specified treatments; EPAs cover gaps.
- Absent documents, Queensland’s statutory health attorney list applies automatically.
- QCAT provides rapid guardianship or consent orders where conflict or risk arises.
- Early planning—AHD + EPA—prevents bedside disputes and upholds patient autonomy.
Sources / Citations
- Powers of Attorney Act 1998 (Qld) – ss 31, 41–45, 63–66.
- Guardianship and Administration Act 2000 (Qld) – ss 5, 80–86 (urgent orders).
- Hospital and Health Boards Act 2011 (Qld) – s 142 (obligation to obtain lawful consent).
- Queensland Capacity Assessment Guidelines 2020, Queensland Health.
- Re Tennyson [2020] QCAT 230 – urgent guardianship in ICU dispute.