Medico-Legal Aspects

What is known

All states and territories of Australia have slightly different legislation relating to surrogate decision makers and advance directives. The commonly used names given to surrogates and their powers are state specific with some surrogates having the right to refuse medical treatment on behalf of the people who nominated them. Similarly a range of different advance directives are used across Australia.

Important medico-legal issues in relation to advance care planning include: whether a patient is competent to make certain decisions; the legal status of written advance directives or any other statements that a patient makes about their wishes for future care; knowledge of who may be approached if a patient is unable to make end of life decisions; the legal arrangements for formally appointing surrogate decision makers.

What it means in practice

  • Written documentation of a patient’s understanding of their condition and their expressed wishes about their future care is important. It is part of a complete assessment of any palliative care patient, and should be kept up to date and reviewed as needed.
  • Specific documentation of a patient’s diagnosis, stage of their illness, and wishes for future care - especially their views about resuscitation and other active management for possible end of life conditions - should be included prominently in the relevant medical records. Patients can keep a copy and carry it with them.
  • Clinicians need to be familiar with the legislative environment in their own state.
  • Advance care planning, for many patients and families can lead to related decisions about future living arrangements, finances, organ donation, planning of funerals, and planning for the care of dependents such as spouses, children, or pets. Social workers can provide very valuable input into these decisions.


Overview articles (free full text)


Patients, Carers and Families

Last updated 08 January 2019